[Federal Register Volume 87, Number 16 (Tuesday, January 25, 2022)]
[Proposed Rules]
[Pages 3739-3753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01210]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0069; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BG01


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Sacramento Mountains Checkerspot Butterfly

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Sacramento Mountains checkerspot butterfly (Euphydryas anicia 
cloudcrofti), a butterfly from New Mexico, as an endangered species 
under the Endangered Species Act of 1973, as amended (Act). After a 
review of the best available scientific and commercial information, we 
find that listing the species is warranted. Accordingly, we propose to 
list the Sacramento Mountains checkerspot butterfly as an endangered 
species under the Act. If we finalize this rule as proposed, it would 
add this species to the List of Endangered and Threatened Wildlife and 
extend the Act's protections to the species. We find that the 
designation of critical habitat for the Sacramento Mountains 
checkerspot butterfly is not determinable at this time.

DATES: We will accept comments received or postmarked on or before 
March 28, 2022. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by March 11, 2022.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter the docket number or RIN 
for this rulemaking (presented above in the document headings). For 
best results, do not copy and paste either number; instead, type the 
docket number or RIN into the Search box using hyphens. Then, click on 
the Search button. On the resulting page, in the Search panel on the 
left side of the screen, under the Document Type heading, check the 
Proposed Rule box to locate this

[[Page 3740]]

document. You may submit a comment by clicking on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2021-0069, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).

FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525. 
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, if we determine that 
a species warrants listing, we are required to promptly publish a 
proposal in the Federal Register, unless doing so is precluded by 
higher-priority actions and expeditious progress is being made to add 
and remove qualified species to or from the List of Endangered and 
Threatened Wildlife and Plants. The Service will make a determination 
on our proposal within 1 year. If there is substantial disagreement 
regarding the sufficiency and accuracy of the available data relevant 
to the proposed listing, we may extend the final determination for not 
more than six months. To the maximum extent prudent and determinable, 
we must designate critical habitat for any species that we determine to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designation of critical 
habitat can be completed only by issuing a rule.
    What this document does. We propose to list the Sacramento 
Mountains checkerspot butterfly as an endangered species under the Act. 
As explained later in this document, we conclude that the designation 
of critical habitat for the Sacramento Mountains checkerspot butterfly 
is not determinable at this time.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the Sacramento Mountains 
checkerspot butterfly is primarily threatened by overgrazing by large 
ungulates, recreation, climate change, nonnative plants, and an altered 
wildfire regime.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 
1531 et seq.) directs that determinations as to whether any species is 
an endangered or a threatened species must be made ``solely on the 
basis of the best scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determination may differ from this 
proposal. Based on the new information we receive (and any comments on 
that new information), we may conclude that the species is threatened 
instead of

[[Page 3741]]

endangered, or we may conclude that the species does not warrant 
listing as either an endangered species or a threatened species.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulations at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On January 28, 1999, we received a petition from the Southwest 
Center for Biological Diversity (now Center for Biological Diversity 
(CBD)) requesting emergency listing of the Sacramento Mountains 
checkerspot butterfly as endangered with critical habitat. On December 
27, 1999, we published a 90-day finding that the petition presented 
substantial information that listing may be warranted, but that 
emergency listing was not warranted (64 FR 72300).
    On September 6, 2001, we published a 12-month finding and proposed 
rule to list the Sacramento Mountains checkerspot butterfly as 
endangered with critical habitat (66 FR 46575). On December 21, 2004, 
we published a withdrawal of the proposed rule (69 FR 76428), 
concluding that the threats to the species were not as great as we had 
perceived when we proposed it for listing.
    On July 5, 2007, we received another petition from Forest Guardians 
(now WildEarth Guardians) and CBD to list the Sacramento Mountains 
checkerspot butterfly under the Act due to ongoing threats, such as 
cattle and feral horse grazing, noxious weeds, collection, and climate 
change, and an imminent plan to spray for insect pests. On December 5, 
2008, we published a 90-day finding that the petition presented 
substantial information that listing may be warranted (73 FR 74123). On 
September 2, 2009, we published a 12-month finding that listing was not 
warranted (74 FR 45396).
    Please refer to the previous proposed listing and critical habitat 
rule (66 FR 46575; September 6, 2001), the withdrawal of the proposed 
listing and critical habitat rule (69 FR 76428; December 21, 2004), and 
the not-warranted 12-month finding (74 FR 45396; September 2, 2009) for 
the Sacramento Mountains checkerspot butterfly for a detailed 
description of previous Federal actions concerning this species.
    Since we published the not-warranted rule in 2009, drought from 
climate change has worsened in New Mexico, worsening habitat conditions 
for the Sacramento Mountains checkerspot butterfly. Further, during 
abnormally dry conditions, both feral horses and elk switch to browsing 
certain plants that are important for the butterfly. Additionally, 
recreation on the Lincoln National Forest has increased in recent 
years. Due to heightened concern about the impact of these stressors on 
the habitat of the Sacramento Mountains checkerspot butterfly, we 
initiated a discretionary status review of the species in January 2021.
    On March 1, 2021, we received a petition from CBD to list the 
Sacramento Mountains checkerspot butterfly as endangered with critical 
habitat. At that time, our analysis was already underway, and we 
included the information provided in the petition in our analysis of 
the species' status for consideration in this decision.

Supporting Documents

    An assessment team prepared a current condition assessment report 
for the Sacramento Mountains checkerspot butterfly. The team was 
composed of Service biologists in consultation with other species 
experts. The report represents a compilation of the best scientific and 
commercial data available concerning the status of the species, 
including the impacts of past and present factors (both negative and 
beneficial) affecting the species. In accordance with our joint policy 
on peer review published in the Federal Register on July 1, 1994 (59 FR 
34270), and our August 22, 2016, memorandum updating and clarifying the 
role of peer review of listing actions under the Act, we will seek the 
expert opinions of at least three appropriate specialists regarding the 
report. The report will be made available for peer and partner review 
concurrently with this proposed listing determination. Any information 
we receive will be incorporated into a final rule.

I. Proposed Listing Determination

Background

    The Sacramento Mountains checkerspot butterfly (butterfly) is a 
subspecies of the Anicia checkerspot, or variable checkerspot, in the 
Nymphalidae (brush-footed butterfly) family that is native to the 
Sacramento Mountains in south-central New Mexico. The species requires 
host plants for larvae, nectar sources for adults, and climatic 
moisture.
    The Sacramento Mountains checkerspot butterfly is a small butterfly 
with a wingspan of approximately 5 centimeters (cm) (2 inches (in)) 
that has a checkered pattern with dark brown, red, orange, cream, and 
black spots, punctuated with dark lines (Ferris and Holland 1980, p. 
5). The butterfly's antennae have yellow-orange clubs at the tip, and 
they have orange legs and eyes (Glassberg 2017, p. 207). Sacramento 
Mountains checkerspot butterfly's larvae are between 0.5 to 1.0 cm (0.2 
to 0.4 in) in length. Over time, the larvae change from bare and brown 
to wooly and black with orange hairs (Service et al. 2005, p. 7).
    The Sacramento Mountains checkerspot butterfly inhabits high-
altitude meadows in the upper-montane and subalpine zone at elevations 
between 2,380 and 2,750 meters (m) (7,800 and 9,000 feet (ft)) within 
the Sacramento Mountains, which are an isolated mountain range in 
south-central New Mexico (Service 2005 et al., p. 9). The ecosystem at 
this elevation usually is cool and wet, supporting diverse and robust 
plant life.
    The main larval host plant for the Sacramento Mountains checkerspot 
butterfly is the New Mexico beardtongue (Penstemon neomexicanus) 
(Ferris and Holland 1980, p. 7), also known as New Mexico penstemon. 
The preferred adult nectar source is orange sneezeweed (Helenium 
(Hymenoxys) hoopesii), a native perennial forb (Service et al. 2005, p. 
9). Other plants in the butterfly's habitat include valerian (Valeriana 
edulis), arrowleaf groundsel (Senecio triangularis), curlycup gumplant 
(Grindelia squarrosa), figworts (Scrophularia sp.), penstemon 
(Penstemon sp.), skyrocket (Ipomopsis aggregata), milkweed (Asclepias 
sp.), Arizona rose (Rosa woodsii), and Wheeler's wallflower (Erysimum 
capitatum) (Forest Service 1999, entire).
    In the Sacramento Mountains, small daily rainstorms (monsoons) are 
common during the summer months. During this cycle, adult butterflies 
are active during mid-morning when the sunlight has warmed the air but 
before

[[Page 3742]]

rainstorms move into the area in the afternoon (Forest Service 1999, p. 
3). On chilly, cloudy days when temperatures are around 60 degrees 
Fahrenheit ([deg]F) (16 degrees Celsius ([deg]C)), butterflies are 
inactive. Sacramento Mountains checkerspot butterflies are most active 
during sunny days when temperatures remain near 70 [deg]F (21 [deg]C) 
(Forest Service 1999, p. 4). The optimal temperature range is between 
73 and 80 [deg]F (23 and 27 [deg]C) (Ryan 2021a, pers. comm.). When 
temperatures regularly exceed 80 [deg]F (27 [deg]C) during the summer 
months, few adult butterflies were detected (Hughes 2021a, pers. 
comm.).
    The Sacramento Mountains checkerspot butterfly is univoltine, 
meaning there is one generation per year. The butterfly's life cycle is 
synchronized with the development of host and nectar plants. The flight 
season lasts from mid-June to the end of August. The exact timing of 
adult flight can vary dramatically from one year to the next (Service 
et al. 2005, pp. 10-11). The adult butterflies stagger their emergence 
from pupation, with numbers peaking around the second week of the 
flight season. Females deposit a cluster of eggs on the underside of 
New Mexico beardtongue leaves. A female can lay two to three sets of 
eggs during her short lifetime (Service et al. 2005, pp. 10-11). The 
eggs hatch within 2 weeks, and larvae collectively create a protective 
silken shelter, known as a tent, over the host plant, feeding upon it 
until winter or the plant is defoliated (Pratt and Emmel 2010, p. 108). 
Caterpillars at this stage are relatively immobile and rely on host 
plant health and abundance to complete the first stages of their life 
cycle (Arriens et al. 2020, p. 2). Caterpillars can leave the plant and 
search for additional resources, but it is unknown how far they can 
travel in search of food (Pratt and Emmel 2010, p. 108; Service et al. 
2005, p. 11).
    After the third or fourth growth cycle, the larvae enter a period 
of arrested metabolism known as diapause. Diapause begins between late 
September and early October, depending on environmental conditions. 
During diapause, larvae probably remain in leaf or grass litter near 
the base of shrubs, under the bark of conifers, or in the loose soils 
associated with pocket gopher (Thomomys bottae) mounds (see 66 FR 
46575; September 6, 2001). The larvae remain in diapause until warm 
spring temperatures, moisture events, host plant growth, or some 
combination of these events prompts individuals to come out of their 
suspended state (Service et al. 2005, p. 11). It might be possible for 
caterpillars to re-enter or remain in diapause for more than one year 
if environmental conditions are not conducive for growth (Service et 
al. 2005, p. 11).
    Between March and April, post-diapause larvae emerge and begin to 
feed again. In the spring, larvae are more mobile than they were in the 
fall, moving on average 2.6 meters from their natal tents (Pittenger 
and Yori 2003, p. 3). They have three or four more growth stages before 
pupating (forming a chrysalis). Precisely what triggers caterpillars to 
initiate pupation is not well understood, but likely relies on various 
environmental cues (Service et al. 2005, p. 11). As many as 98 percent 
of individuals do not survive to the adult stage (Ryan 2021b, pers. 
comm.).
    Because the Sacramento Mountains checkerspot butterfly has a life-
history pattern similar to other butterflies in the Euphydryas genus 
that exist as metapopulations, it is likely that this butterfly also 
has a metapopulation structure (Ehrlich et al. 1975, p. 221; Murphy and 
Weiss 1988, pp. 192-194). A metapopulation is a group of local 
populations within an area, where typically migration from one local 
population to other areas containing suitable habitat is possible, but 
not routine (Murphy and Weiss 1988, p. 192). Movement between areas 
containing suitable habitat (i.e., dispersal) is restricted due to 
inhospitable conditions around and between areas of suitable habitat 
(Service et al. 2005, p. 15). Metapopulation-level processes appear to 
be critical to the long-term persistence of the Sacramento Mountains 
checkerspot butterfly.
    Butterflies in the genus Euphydryas are typically restricted to 
specific habitats (Ehrlich et al. 1975, p. 225; Cullenward et al. 1979, 
p. 1; Murphy and Weiss 1988, p. 197). The extent of the historical 
range of the Sacramento Mountains checkerspot butterfly is unknown due 
to limited information collected on this subspecies before its 
description in 1980 (Ferris and Holland 1980, p. 7). Although the 
Sacramento Mountains checkerspot's historical range is unknown, the 
species is thought to have once occupied a more extensive (but still 
limited) area based upon the location of its meadow habitat.
    Surveys completed between 1996 and 1997 found that the butterfly 
occupies roughly 85 square kilometers (33 square miles) within the 
vicinity of the village of Cloudcroft (see 66 FR 46575; September 6, 
2001). However, recent surveys indicate that the butterfly's suitable 
habitat is likely less than 2 square miles within the range (Forest 
Service 2020b, entire). The U.S. Forest Service (Forest Service) has 
been conducting presence-or-absence surveys since 1998 to estimate the 
range of the butterfly (Forest Service 1999, p. 2). Based on the best 
available information, the butterfly continues to exist within the same 
general localities (Pittenger and Yori 2003, p. 15; McIntyre 2005, pp. 
1-2; McIntyre 2008, p. 1; Ryan 2007, pp. 11-12).
    The range of the Sacramento Mountains checkerspot butterfly has 
always been discontinuous and fragmented. Spruce-fir forests punctuate 
suitable butterfly habitat comprised of mountain meadows, creating 
intrinsic barriers to butterfly dispersal and effectively isolating 
populations from one another (Pittenger and Yori 2003, p. 1). It is 
likely that the meadow habitat upon which the Sacramento Mountains 
checkerspot butterfly relies was influenced by fire (Brown et al. 2001, 
pp. 116-117). The historical fire regime would have allowed for more 
temporary connectivity between populations as it opened up the canopy 
of trees that separate meadows. However, fire suppression on public and 
private lands to protect commercial and private development in suitable 
habitat has resulted in the encroachment of conifers.
    The Mescalero Apache Nation shares the northern border with the 
Sacramento Ranger District on the Lincoln National Forest. This border 
is the northern limit of butterfly surveys. We do not know if the range 
of the butterfly extends into the lands of the Mescalero Apache Nation 
because, to our knowledge, no surveys have been conducted on their 
lands (see 66 FR 46575; September 6, 2001). Although we do not have 
information on habitat on Mescalero Apache Nation lands, it is unlikely 
that there is a significant amount of suitable habitat present there 
because it is generally lower elevation than the Sacramento Mountains 
checkerspot butterfly requires (i.e., between 2,380 and 2,750 m (7,800 
and 9,000 ft)) and is not proximal (i.e., provides connectivity) to 
known butterfly localities (see 66 FR 46575; September 6, 2001).
    Since 1998, populations have been known from 10 meadow units on 
Forest Service land (Forest Service, 1999, p. 2). The meadows cover the 
occupied areas within the species' range and give the most accurate 
representation of species and habitat conditions available. These 
meadow units include Bailey Canyon, Pines Meadow Campground, Horse 
Pasture Meadow, Silver Springs Canyon, Cox Canyon, Sleepygrass Canyon, 
Spud Patch Canyon, Deerhead Canyon, Pumphouse Canyon, and

[[Page 3743]]

Yardplot Meadow. The species has been extirpated from several of these 
meadows recently. The Yardplot Meadow was sold and developed, while 
suitable habitat in Horse Pasture Meadow was eliminated by logging 
(Forest Service 2017, p. 3). No adults or caterpillars have been 
detected within Pumphouse Canyon since 2003, and the species has likely 
been extirpated at that site (Forest Service 2017, p. 3). In 2020, all 
10 meadows were surveyed for butterflies and larvae, and a total of 
eight butterflies were detected in only Bailey Canyon and Pines Meadow 
Campground combined (Forest Service 2020b, p. 3), and no larval tents 
were found at any site (Forest Service 2020b, pp. 1-3; Hughes 2020, 
pers. comm.).

Regulatory and Analytical Framework

Regulatory Framework
    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 is an endangered species or a 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 any species is an endangered species or a 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.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
Analytical Framework
    The current condition assessment report documents the results of 
our comprehensive biological review of the best scientific and 
commercial data regarding the status of the species, including an 
assessment of the potential threats to the species. The current 
condition assessment report does not represent a decision by the 
Service on whether the species should be proposed for listing as an 
endangered or threatened species under the Act. However, it does 
provide the scientific basis that informs our regulatory decisions, 
which involve the further application of standards within the Act and 
its implementing regulations and policies. The following is a summary 
of the key results and conclusions from the current condition 
assessment report; the full report can be found at http://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069 and at https://www.fws.gov/southwest/es/NewMexico/.
    To assess Sacramento Mountains checkerspot butterfly viability, we 
used the three conservation biology principles of resiliency, 
redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). 
Briefly, resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    Our analysis can be categorized into several sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current conditions of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived

[[Page 3744]]

at its current condition. Throughout these stages, we used the best 
available information to characterize viability as the ability of a 
species to sustain populations in the wild over time. We use this 
information to inform our regulatory decision.

Summary of Biological Status and Threats

    Below, we review the biological condition of the species and its 
resources, and the threats that influence the species' current and 
future condition, in order to assess the species' overall viability and 
the risks to that viability.
    For the Sacramento Mountains checkerspot butterfly to maintain 
viability, its populations or some portion thereof must have sufficient 
resiliency, redundancy, and representation. Several factors influence 
the resiliency of Sacramento Mountains checkerspot butterfly 
populations, including larval and adult abundance and density, in 
addition to elements of the species' habitat that determine whether 
Sacramento Mountains checkerspot butterfly populations can survive and 
reproduce. These resiliency factors and habitat elements are discussed 
in detail in the current condition assessment report and are summarized 
here.
Species Needs
Abundance and Density
    To successfully reproduce and increase their fecundity and 
abundance, butterflies need access to mates. The Sacramento Mountains 
checkerspot butterfly is not a long-distance flier and probably relies 
on local abundance and population density to successfully mate and 
reproduce (Pittenger and Yori 2003, p. 39). Higher densities and more 
abundant individuals result in more successful mating attempts and 
ensure species viability. Metapopulation dynamics are also maintained 
by abundance and density within meadows (Pittenger and Yori 2003, pp. 
39-40).
Host Plants
    The most crucial habitat factor for the Sacramento Mountains 
checkerspot butterfly is the New Mexico beardtongue's presence and 
abundance (McIntyre 2021a, pers. comm.). The larvae rely nearly 
entirely upon the New Mexico beardtongue during pre- and post-diapause. 
Because of the Sacramento Mountains checkerspot butterfly's dependency 
on New Mexico beardtongue, it is vulnerable to any type of habitat 
degradation, which reduces the host plant's health and abundance 
(Service et al. 2005, p. 9).
    New Mexico beardtongue is a member of the Plantaginaceae, or 
figwort, family (Oxelman et al. 2005, p. 425). These perennial plants 
prefer wooded slopes or open glades in ponderosa pine and spruce/fir 
forests at elevations between 1,830 and 2,750 m (6,000 and 9,000 ft) 
(New Mexico Rare Plant Technical Council 1999, entire). New Mexico 
beardtongue is native to the Sacramento Mountains within Lincoln and 
Otero Counties (Sivinski and Knight 1996, p. 289). The plant is 
perennial, has purple or violet-blue flowers, and grows to be half a 
meter tall (1.9 ft). New Mexico beardtongue occurs in areas with loose 
soils or where there has been recent soil disturbance, such as eroded 
banks and pocket gopher burrows (Pittenger and Yori 2003, p. ii). Some 
plant species within the figwort family, including the New Mexico 
beardtongue, contain iridoid glycosides, a family of organic compounds 
that are bitter and an emetic (vomit-inducing) for most birds and 
mammal species. The Sacramento Mountains checkerspot butterfly, like 
other subspecies of Euphydryas anicia, sequester the iridoid glycosides 
as caterpillars. It is believed that these compounds make the larvae 
and adult butterflies unpalatable to predators (Gardner and Stermitz 
1987, pp. 2152-2167).
Nectar Sources
    Access to nectar sources is needed for adult Sacramento Mountains 
checkerspot butterflies to properly carry out their life cycle. The 
primary adult nectar source is orange sneezeweed (Service et al. 2005, 
p. 9). To contribute to the species' viability, orange sneezeweed must 
bloom at a time that corresponds with the emergence of adult Sacramento 
Mountain checkerspot butterflies. Although orange sneezeweed flowers 
are most frequently used, the butterfly has been observed collecting 
nectar on various other native nectar sources (Service et al. 2005, pp. 
9-10). If orange sneezeweed is not blooming during the adult flight 
period (i.e., experiencing phenological mismatch), survival and the 
butterfly's fecundity could decrease.
Habitat Connectivity
    Before human intervention, the habitat of the Sacramento Mountains 
checkerspot butterfly was dynamic, with meadows forming and 
reconnecting due to natural wildfire regimes (Service et al. 2005, p. 
21). These patterns would have facilitated natural dispersal and 
recolonization of meadow habitats following disturbance events, 
especially when there was high butterfly population density in adjacent 
meadows (Service et al. 2005, p. 21). Currently, spruce-fir forests 
punctuate suitable butterfly habitat, comprised of mountain meadows, 
creating intrinsic barriers to butterfly dispersal and effectively 
isolating populations from one another (Pittenger and Yori 2003, p. 1). 
Preliminary genetic research suggested there is extremely low gene flow 
across the species' range or between meadows surveyed (Ryan 2021a, 
pers. comm.). If new sites are to become colonized or recolonized by 
the butterfly, meadow areas will need to be connected enough to allow 
dispersal from occupied areas. Therefore, habitat connectivity is 
needed for genetically healthy populations across the species' range 
(Service 2021, p. 8).
Risk Factors for the Sacramento Mountains Checkerspot Butterfly
    We reviewed the potential risk factors (i.e., threats, stressors) 
that could be currently affecting the Sacramento Mountains checkerspot 
butterfly. In this proposed rule, we will discuss only those factors in 
detail that could meaningfully impact the status of the species. Those 
risk factors that are unlikely to have significant effects on 
Sacramento Mountains checkerspot butterfly populations, such as human 
collection, disease, parasites, predation, insecticides, habitat loss, 
and livestock grazing, are not discussed here but are evaluated in the 
current condition assessment report. For example, livestock grazing has 
the potential to impact the Sacramento Mountains checkerspot butterfly 
through various mechanisms (Service et al. 2005, pp. 29-30; Forest 
Service 2008, p. 70; McIntyre 2010, pp. 76-77, 94-104; Forest Service 
2019, p. 21). However, because there are no active grazing allotments 
in any areas occupied by the butterfly, livestock grazing is not a 
primary risk factor for the status of the Sacramento Mountains 
checkerspot butterfly. The primary risk factors (i.e., threats) 
affecting the status of the Sacramento Mountains checkerspot butterfly 
are overgrazing by large ungulates (Factor A), recreation (Factor A), 
climate change (Factor E), nonnative plants (Factor A), and an altered 
wildfire regime (Factor A).
Overgrazing by Large Ungulates
    Historically, Merriam's elk (Cervus canadensis merriami), an 
extinct subspecies of elk, grazed meadows within the Sacramento 
Mountains. Under normal conditions, these species likely coexisted 
without impacting the existence of the butterfly. Rocky Mountain elk 
(Cervus canadensis nelsoni) have been introduced to the

[[Page 3745]]

Sacramento Mountains, filling the previous ecological niche held by 
Merriam's elk (New Mexico Department of Game and Fish 2009, 
unpaginated). At natural population levels and normal environmental 
conditions, elk do not pose a significant threat to the Sacramento 
Mountains checkerspot butterfly or its habitat. In fact, some studies 
have shown a positive correlation between elk grazing and caterpillar 
abundance (McIntyre 2010, pp. 66-69). Should elk herds expand beyond 
natural levels or occur during times of resource scarcity, browse 
pressure from elk can pose a significant threat to the butterfly's 
habitat and viability (Service 2021, p. 13).
    Feral horses were inadvertently released onto the Lincoln National 
Forest around 2012. Horses are not native to the Sacramento Mountains 
and add significant browse pressure to meadows. Larger than elk, horses 
consume large quantities of vegetation. Roughly 60,000 horses now live 
throughout the Sacramento Mountains (Ryan 2021, pers. comm.).
    Under typical habitat conditions, the larval host plant, New Mexico 
beardtongue, is not a main food source for large ungulates. However, 
during abnormally dry conditions, both horses and elk switch to 
browsing New Mexico beardtongue as other food plants become scarce 
(McIntyre 2010, pp. 71-73). New Mexico beardtongue remains as small 
rosettes less than an inch tall and does not flower when there is 
significant browse pressure from large herbivores. These small, stunted 
plants are not large enough to support tent colonies of caterpillars; 
any larvae will starve after hatching (Forest Service 2020b, p. 11).
    Feral horse and overpopulated elk browsing, compounded with drought 
due to climate change, significantly impact habitat within meadow 
ecosystems in the range of the Sacramento Mountains checkerspot 
butterfly. Over the past several years, sustained drought in Otero 
County has driven large herbivores to graze most meadow areas to the 
ground (McMahan et al. 2021, pp. 1-2). Currently, vegetation for host 
plant and nectar sources is scarce in all the meadows throughout the 
range of the species (Forest Service 2020, p. 11).
    In summary, overgrazing by large ungulates results in decline of 
suitable habitat, limiting larval host plants and adult nectar sources. 
All meadow units within the range are experiencing impacts from 
overgrazing.
Recreation
    Over the past 10 years, recreation has increased in the Lincoln 
National Forest. The previous proposed listing rule (66 FR 46575; 
September 6, 2001) determined that off-road vehicle use on Forest 
Service trails posed some threat to meadow units; off-road vehicle use 
continues to this day and has increased in popularity. Large 
recreational vehicle (RV) use has also increased, and the Forest 
Service does not require permits for parking vehicles within the 
Lincoln National Forest (Service 2021, p. 14). Meadows within the range 
of the Sacramento Mountains checkerspot are popular with RV users 
because they are open, flat, and easily accessible by road (Hughes 
2021b, pers. comm.). A variety of these impacts (e.g., soil compaction, 
barren ground, trampled food plants, multiple trails, vehicle tracking) 
are evident in areas used by larval and adult life stages of the 
Sacramento Mountains butterflies; these impacts are reducing the 
quality or quantity of suitable habitat in and around developed 
campgrounds or undeveloped campsites in meadows known to support the 
Sacramento Mountains checkerspot butterfly (Hughes 2021b, pers. comm.).
    Recreation can negatively affect the butterfly in several ways. 
Trampling and crushing can physically kill both individual butterflies 
and caterpillars. While adults can fly away, these butterflies are 
slow, especially on cold mornings. Recreational activities can also 
crush plants, including New Mexico beardtongue and orange sneezeweed. 
During times of drought, these plants are especially vulnerable and 
unlikely to survive repeated damage (Service 2021, p. 14). 
Additionally, RVs compact soil where large vehicles are parked. 
Repeated trampling by humans around the vehicles, caused by normal 
camping activities, will further compact soils, making it less likely 
for New Mexico beardtongue to recover or re-establish in former 
campsites (Hughes 2021b, pers. comm.).
    In summary, recreation by humans can directly kill Sacramento 
Mountains checkerspot butterflies and their larvae. All meadow units 
within the range are experiencing some level of impact from recreation.
Climate Change
    Climate change is impacting natural ecosystems in the southwestern 
United States (McMahan et al. 2021, p. 1). The Sacramento Mountains are 
sky islands surrounded by a matrix of desert grassland, which hosts a 
unique mix of flora and fauna (Brown et al. 2001, p. 116). This 
ecosystem is sensitive even to small changes in temperature and 
precipitation. Such changes to the environment can significantly alter 
air temperature, the amount of precipitation, and the timing of 
precipitation events (Service et al. 2005, p. 37).
    New Mexico has been in a drought for the past several years. 
Roughly 54 percent of New Mexico is currently experiencing an 
exceptional drought, including the Sacramento Mountains (McMahan et al. 
2021, pp. 1-2). Droughts of this severity push wildlife to alter 
behavior based on available resources, while vegetation in habitats 
becomes extremely degraded (McMahan et al. 2021, entire).
    Over the past several years, annual precipitation levels have 
decreased throughout the butterfly's range. Snowfall and corresponding 
snowpack have remained well below normal levels (Forest Service 2020b, 
pp. 11-12). Some alpine butterflies need high levels of snowpack levels 
during diapause to shelter from wind and cold temperatures. The same 
might be true for the Sacramento Mountains checkerspot butterfly, as 
the species likely evolved with higher levels of winter snowpack than 
are common over the past decade (Hughes 2021a, pers. comm.). However, 
while snowpack might be an important factor, we do not have enough 
evidence to analyze the effects of low snow years on the butterfly.
    Recent shifts in climate due to human-induced climate change can 
impact how species interact with their environment. The timing of 
butterfly life-history events during an annual cycle shift due to 
increases in temperature, changes in humidity, and length of growing 
season. These shifts can directly be attributed to the effects of 
climate change. For habitat specialists such as the Sacramento 
Mountains checkerspot butterfly, shifts in phenological timing can have 
important consequences for population dynamics and viability (Colorado-
Ruiz et al. 2018, pp. 5706-5707). It is likely that climate change has 
already caused some level of phenotypic mismatch (when life-history 
traits are no longer advantageous due to changes in the environment) 
between the butterfly, host plants, and nectar sources. This shift 
negatively impacts the butterfly because it has adapted to specific 
timing of resource availability (i.e., growth of host plants, blooming 
of nectar sources) in various stages of its life cycle, and climate 
change has altered the timing, quality, and quantity of those 
resources.
    The Sacramento Mountains checkerspot butterfly needs adequate

[[Page 3746]]

vegetation growth in host plants and nectar sources during the summer 
months to survive (Service et al. 2005, p. 15). Vegetation growth 
within the butterfly's range appears to rely heavily on summer rains. 
Large rainfall events typically form during the mid-summer months in 
the Sacramento Mountains, marking the beginning of the monsoon season. 
These midday showers occur almost daily for several months, stimulating 
much of the vegetation to grow and proliferate during the midsummer 
season. Specifically, New Mexico beardtongue growth increases in 
response to the monsoons. It is thought that moisture might also 
encourage the butterflies to emerge from diapause as well (Service et 
al. 2005, pp. 37-38).
    Climate change is impacting the timing of monsoon events throughout 
the Southwest (Service 2021, p. 15). New Mexico beardtongue and other 
plant species in sub-alpine meadows are adapted to the pulse of 
moisture from monsoons (Service et al. 2005, pp. 37-38). With a lack 
of, or altered, monsoon rains, the butterfly is at risk, as the species 
relies on vegetation growth dependent upon the timing of precipitation.
    The 2020 monsoon season was an exceptionally weak one, with far 
less precipitation falling than in an average summer (McMahan et al. 
2021, unpaginated). As a result, New Mexico beardtongue growth was also 
weak; few plants grew larger than small rosettes on the ground. Even 
fewer plants survived to produce flowers (Forest Service 2020b, p. 12). 
Some experts believe that the dry conditions, compounded with increased 
browse pressure from large ungulates, contributed to the deterioration 
of habitat throughout the Sacramento Mountains checkerspot butterfly's 
range (Ryan et al. 2021, pers. comm.).
    In summary, climate change impacts viability of the Sacramento 
Mountains checkerspot butterfly. All meadow units within the range are 
experiencing impacts from climate change.
Nonnative Plants
    Nonnative plants have begun to encroach into meadow areas within 
the Lincoln National Forest. Other species of butterfly had become 
scarcer when nonnative plants appeared in suitable butterfly habitats 
(Hughes 2021b, pers. comm.). During the drought, Kentucky bluegrass 
(Poa pratensis) proliferated within meadow areas. This aggressive, 
nonnative plant, which is primarily windblown, can outcompete native 
wildflowers, such as New Mexico beardtongue. As nonnative plants begin 
to expand their influence, native plants, host and nectar plants for 
butterflies, such as New Mexico beardtongue and orange sneezeweed, are 
likely to become scarcer (Kennedy 2020, pers. comm.; 62 FR 2313, 
January 16, 1997).
    In summary, nonnative plants can outcompete the native plants that 
Sacramento Mountains checkerspot butterflies and their larvae require. 
All meadow units within the range are experiencing some level of impact 
from nonnative plants.
Altered Wildfire Regime
    Fire is a natural part of the Sacramento Mountains ecosystem and 
would have historically maintained many of the ecosystem processes 
within the butterfly's range. The Lincoln National Forest has largely 
suppressed wildfires over the past 150 years (Service et al. 2005, p. 
21). Before human intervention, there would have been gradual ecosystem 
clines between meadows and forests. Grassland corridors or sparsely 
forested glades would have connected meadow areas. These habitat types 
would have allowed for the butterfly to pass through, thereby 
maintaining metapopulation dynamics. Fire exclusion and suppression 
have reduced the size of grasslands and meadows by allowing the 
encroachment of conifers, and these trends are projected to continue 
(Service et al. 2005, pp. 21-22). No significant wildfires have 
occurred in butterfly habitat since 1916 (Service et al. 2005, p. 21). 
Before active fire suppression, fire in the Sacramento Mountains 
occurred at intervals between three and ten years (Forest Service 1998, 
p. 63). These frequent, low-intensity, surface fires historically 
maintained a forest that was more open (i.e., more non-forested patches 
of different size; more large, older trees; and fewer dense thickets of 
evergreen saplings). Such low-intensity fires are now rare events. A 
large fire can occur within the range of the species; there have been 
at least nine large, severe wildfires (over 90,000 ac (34,000 ha)) in 
the Sacramento Mountains during the past fifty years (Forest Service 
1998, p. 63). Trees and other woody vegetation have begun encroaching 
into suitable meadow habitats for the butterfly. Current forest 
conditions make the chances of a high-severity fire within the range of 
the butterfly increasingly likely (Service et al. 2005, p. 21).
    It is likely that fire exclusion and historical cattle grazing have 
altered and increased the threat of wildfire in ponderosa pine (Pinus 
ponderosa) and mixed conifer forests in the semi-arid western interior 
forests, including New Mexico (Forest Service 1998, pp. 3, 63). 
Further, there has been a general increase in the dominance of woody 
plants, with a decrease in the herbaceous (non-woody) ground cover used 
by the butterfly (Service et al. 2005, pp. 32-33). These data indicate 
that the quality and quantity of the available butterfly habitat is 
decreasing rangewide. Therefore, we conclude that fire exclusion has 
substantially affected the species and will likely continue to 
significantly degrade the quality and quantity of suitable habitat.
    In summary, the altered fire regime can impact Sacramento Mountains 
checkerspot butterflies and their larvae. All meadow units within the 
range are experiencing impacts from altered fire regime.
Summary
    Our analysis of the current influences on the needs of the 
Sacramento Mountains checkerspot butterfly for long-term viability 
revealed there are several threats that pose the largest risk to 
viability: Overgrazing by large ungulates, recreation, climate change, 
nonnative plants, and an altered wildfire regime. These influences 
reduce the availability of host plants and nectar sources, thereby 
reducing the quantity and quality of habitat, in addition to reducing 
ecological and genetic diversity.
Species Condition
    The current condition of the Sacramento Mountains checkerspot 
butterfly considers the risks to those populations that are currently 
occurring. In the current condition assessment report, for each 
population, we developed and assigned condition categories for two 
demographic factors and three habitat factors that are important for 
viability of the Sacramento Mountains checkerspot butterfly. The 
condition scores for each habitat factor were then used to determine an 
overall condition of each population and meadow: High, moderate, low, 
very low, or extirpated.
    Two populations of the Sacramento Mountains checkerspot butterfly 
remain in two meadows, Bailey Canyon and Pines Meadow Campground. 
Historically, the populations likely had greater connectivity, but 
today they are small and isolated due to the altered wildfire regime 
resulting in a higher concentration of trees that separate meadows. 
Repopulation of extirpated locations is unlikely without human 
assistance. If butterflies have been detected at any site once or more 
during the last 3 years, that population is not considered extirpated. 
The two remaining populations are in very low

[[Page 3747]]

condition in terms of demographic factors (adult density and larval 
density) (see Table 1, below) and low condition in terms of overall 
meadow condition (see Table 2, below). There have not been any 
observations of adults or larvae in the past 3 consecutive years in the 
any of other eight populations, and they are, therefore, considered 
demographically extirpated. Six of those eight populations have very 
low overall meadow condition, and two are considered extirpated for 
overall meadow condition because suitable habitat for the Sacramento 
Mountains checkerspot butterfly no longer exists there.

       Table 1--Current Condition of Demographic Factors of the Sacramento Mountains Checkerspot Butterfly
----------------------------------------------------------------------------------------------------------------
                                                                   Demographic factors
              Meadow unit               ------------------------------------------------------------------------
                                                    Adult density                       Larval density
----------------------------------------------------------------------------------------------------------------
Bailey Canyon..........................  Very Low...........................  Very Low.
Pines Meadow Campground................  Very Low...........................  Very Low.
Cox Canyon.............................  Extirpated.........................  Extirpated.
Silver Springs Canyon..................  Extirpated.........................  Extirpated.
Pumphouse Canyon.......................  Extirpated.........................  Extirpated.
Sleepygrass Canyon.....................  Extirpated.........................  Extirpated.
Spud Patch Canyon......................  Extirpated.........................  Extirpated.
Deerhead Canyon........................  Extirpated.........................  Extirpated.
Horse Pasture Meadow...................  Extirpated.........................  Extirpated.
Yardplot Meadow........................  Extirpated.........................  Extirpated.
----------------------------------------------------------------------------------------------------------------


                             Table 2--Current Condition of Habitat Factors of the Sacramento Mountains Checkerspot Butterfly
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Habitat factors
           Meadow unit           ------------------------------------------------------------------------------------------   Overall meadow condition
                                           Host plants                 Nectar sources                 Connectivity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bailey Canyon...................  Very Low....................  Low.........................  Moderate....................  Low.
Pines Meadow Campground.........  Very Low....................  Low.........................  Moderate....................  Low.
Cox Canyon......................  Very low....................  Low.........................  Low.........................  Very Low.
Silver Springs Canyon...........  Very Low....................  Low.........................  Moderate....................  Very Low.
Pumphouse Canyon................  Very Low....................  Low.........................  Low.........................  Very Low.
Sleepygrass Canyon..............  Very Low....................  Low.........................  Moderate....................  Very Low.
Spud Patch Canyon...............  Very Low....................  Low.........................  Moderate....................  Very Low.
Deerhead Canyon.................  Extirpated..................  Very Low....................  Low.........................  Very Low.
Horse Pasture Meadow............  Extirpated..................  Extirpated..................  High........................  Extirpated.
Yardplot Meadow.................  Extirpated..................  Extirpated..................  Low.........................  Extirpated.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Bailey Canyon and Pines Meadow Campground are two adjacent meadows 
in the northwest part of the Sacramento Mountains checkerspot 
butterfly's range. During the 2020 survey season, approximately eight 
butterflies were detected in both meadows combined (Forest Service 
2020b, p. 3), and no larval tents were found (Forest Service 2020b, pp. 
1-3; Phillip Hughes 2020, pers. comm.). Because of these adult and 
larval density levels, we categorized resiliency for demographics as 
very low for both meadows, which were the only two where butterflies 
were found. In addition, the overall meadow condition for these sites 
was low because there are few host plants and nectar sources present. 
Although nectar sources are present, they are not blooming or providing 
enough resources for the butterfly colonies. Further, these meadows are 
within 800 meters of each other, which is within the dispersal distance 
of the butterfly, allowing for potential gene flow between populations.
    Overall resiliency of Sacramento Mountains checkerspot butterfly 
populations is very low for demographic factors and low for habitat 
factors. This is because butterflies were only found in 2 of the 10 
documented meadows, and both had very low recorded adult and larval 
abundance and density numbers. Additionally, these two meadows have 
poor habitat conditions (few host plants, nectar sources are abundant 
but provide insufficient resources, and some connectivity to other 
meadows), and the other eight meadows have either very low condition or 
are extirpated in terms of habitat factors.
    We define representation for the Sacramento Mountains checkerspot 
butterfly as having ecological and genetic diversity. As a narrow-range 
endemic, the entire range of the species is approximately 32 square 
miles. However, suitable habitat is limited to only about 2 square 
miles. Today, only 0.2 square miles might be occupied by the butterfly. 
This range contraction suggests that most of the original 
representation present within the species has declined. The entirety of 
the butterfly's range represents one representation area because of the 
narrow range and limited ecological diversity. The populations are 
small and isolated in this single representation area with very little 
to no connectivity between populations. The occupied meadows are among 
spruce-fir forests, so some barriers limit the dispersal of individuals 
among the populations. Due to the limited habitat connectivity of 
populations, individual Sacramento Mountains checkerspot butterflies 
rarely, if ever, travel between populations. This effectively restricts 
the transfer of genetic material, thus limiting genetic diversity. 
There was likely greater habitat connectivity between populations in 
the past due to a more natural fire regime. Therefore, overall 
representation was always limited for this species and has declined in 
recent years.
    We define redundancy for the Sacramento Mountains checkerspot 
butterfly as having populations or metapopulations spread across the

[[Page 3748]]

range. There are only 2 extant Sacramento Mountains checkerspot 
butterfly populations located in adjacent meadows out of 10 documented 
metapopulations within the single representation area. Given the 
historical distribution of the butterfly, it is likely that Sacramento 
Mountains checkerspot butterfly populations were more abundant within 
the Sacramento Mountains. Therefore, redundancy of the butterfly has 
declined over time. As a consequence of these current conditions, the 
viability of the Sacramento Mountains checkerspot butterfly primarily 
depends on maintaining and restoring the remaining isolated populations 
and reintroducing populations where feasible.
    We incorporated the cumulative effects of the operative threats 
into our analysis when we characterized the current condition of the 
species. Because our characterization of current condition considers 
not just the presence of the factors, but to what degree they 
collectively influence risk to the entire species, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.
Conservation Efforts and Regulatory Mechanisms
    Several habitat management actions can benefit the viability of the 
Sacramento Mountains checkerspot butterfly. To address the threat of 
overgrazing from large ungulates, the Lincoln National Forest erected 
exclosures to protect butterfly habitats from browsing. These efforts 
are currently focused within Bailey Canyon and Pines Meadow Campground, 
where adult butterflies were most recently found. Botanists involved 
with the Sacramento Mountains checkerspot butterfly working group are 
currently growing plants for habitat restoration. Biologists will soon 
plant nectar sources, including orange sneezeweed and New Mexico 
beardtongue, within exclosures to ensure the individual needs of 
caterpillars and adult butterflies are met.
    The Forest Service has proposed that fire management aimed at 
reducing tree stocking within forested areas surrounding meadows might 
also help restore suitable habitat and connectivity throughout the 
range of the butterfly. Maintaining edge habitat and connectivity could 
greatly improve the butterfly's viability in the long term.

Determination of Sacramento Mountains Checkerspot Butterfly's 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 an ``endangered species'' or 
a ``threatened species.'' The Act defines an ``endangered species'' as 
a species in danger of extinction throughout all or a significant 
portion of its range, and a ``threatened species'' as a species 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 an 
``endangered species'' or a ``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 Act's section 4(a)(1) 
factors, we find that the Sacramento Mountains checkerspot butterfly 
has declined in abundance, density, and number of populations. 
Currently, there are only two extant populations where the species 
exists in very low abundances and are isolated from one another. 
Furthermore, existing available habitat is reduced in quantity and 
quality relative to historical conditions. Our analysis revealed 
several threats that caused these declines and pose a meaningful risk 
to the viability of the species. These threats are primarily related to 
habitat changes (Factor A) and include overgrazing by large ungulates, 
recreation, nonnative plants, and altered wildfire regime, in addition 
to climate change (Factor E).
    Over the past two decades, the species has declined, both in 
abundance and in the area occupied (Forest Service 2020b, p. 2). 
Because of increased populations of ungulates (i.e., elk, horses), 
grazing has increased in the subalpine meadows that support the 
Sacramento Mountains checkerspot butterfly, reducing the availability 
of host plants and nectar sources. The reduction in habitat quality and 
quantity is further exacerbated by the impact of drought associated 
with climate change. Additionally, the altered wildfire regime has 
decreased habitat connectivity, and now populations are more isolated 
from one another with limited to no dispersal among populations.
    We considered sites with butterfly detections during the last 3 
years to be extant for the purposes of this proposed determination. 
Because adults or larvae have not been observed in the past 3 
consecutive years in 8 of the 10 populations, we consider those 8 
populations functionally extirpated. The two remaining populations are 
extremely small and isolated. The habitat at those sites is currently 
in very low condition due to a lack of both host plants for larvae and 
nectar sources for adults.
    Historically, the species, with more abundant and larger 
populations, would have been more resilient to stochastic events. Even 
if such events extirpated some populations, they could be recolonized 
over time by dispersal from nearby surviving populations. Because many 
of the areas of suitable habitat may be small and support small numbers 
of butterflies, local extirpation of these small populations is 
probable. A metapopulation's persistence depends on the combined 
dynamics of these local extirpations and the subsequent recolonization 
of these areas by dispersal (Murphy and Weiss 1988, pp. 192-194). 
Habitat loss and the altered wildfire regime have reduced the size of 
and connectivity between patches of suitable butterfly habitat. The 
reduction in the extent of meadows and other suitable non-forested 
areas has likely eliminated connectivity among some localities and may 
have increased the distance beyond the normal dispersal ability of the 
Sacramento Mountains checkerspot butterfly, making recolonization of 
some patches following local extirpation more difficult. In addition, 
habitat reduction lowers the quality of remaining habitat by reducing 
the diversity of microclimates and food plants for larvae and adult 
butterflies (Murphy and Weiss 1988, p. 190).
    Preliminary genetic evidence suggests little gene flow between 
these units (Ryan et al. 2021, pers. comm.). Connectivity, which would 
promote resiliency and representation, has been lost. Eight populations 
are functionally extirpated, and the remaining two populations are in 
very low condition in terms of demographic factors and low condition in 
terms of habitat factors and are at high risk of loss. The Sacramento 
Mountains checkerspot butterfly is extremely vulnerable to catastrophic

[[Page 3749]]

events (i.e., high-intensity, large wildfires) in suitable butterfly 
habitats.
    In summary, much of the remaining suitable butterfly habitat, and 
therefore the long-term viability of the species, is at risk due to the 
direct and indirect effects of overgrazing by large ungulates, 
recreation, climate change, nonnative plants, and an altered wildfire 
regime. The remaining populations are fragmented and isolated from one 
another, unable to recolonize naturally. The populations are largely in 
a state of chronic degradation due to habitat loss, which is 
exacerbated by climate change, limiting their resiliency. The limited 
geographic range of the Sacramento Mountains checkerspot butterfly 
increases the threat of extinction for this species given the expected 
continuing loss and degradation of suitable habitat and increased risks 
of extinction from catastrophic events, such as catastrophic fire. 
Historically, with a larger range of likely interconnected populations, 
the species would have been more resilient to stochastic events because 
even if some populations were extirpated by such events, they could be 
recolonized over time by dispersal from nearby surviving populations. 
This connectivity, which would have made for a resilient species 
overall, has been lost, and with two populations in very low 
demographic condition and low habitat condition, the remnant 
populations are at risk of loss. A threatened status for the Sacramento 
Mountains checkerspot butterfly is not appropriate because the species 
has already shown significant declines in current resiliency, 
redundancy, and representation due to the threats mentioned above.
    Thus, after assessing the best available information, we determine 
that the Sacramento Mountains checkerspot butterfly is in danger of 
extinction 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. We have determined that the Sacramento Mountains checkerspot 
butterfly is in danger of extinction throughout all of its range and 
accordingly did not undertake an analysis of any significant portion of 
its range. Because the Sacramento Mountains checkerspot butterfly 
warrants listing as endangered throughout all of its range, our 
determination is consistent with the decision in Center for Biological 
Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which 
the court vacated the aspect of the Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) that provided the Service does 
not undertake an analysis of significant portions of a species' range 
if the species warrants listing as threatened throughout all of its 
range.
Determination of Status
    Our review of the best available scientific and commercial 
information indicates that the Sacramento Mountains checkerspot 
butterfly meets the Act's definition of an ``endangered species.'' 
Therefore, we propose to list the Sacramento Mountains checkerspot 
butterfly as an endangered species in accordance with sections 3(6) and 
4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for removal 
from protected status (``delisting''), and methods for monitoring 
recovery progress. Recovery plans also establish a framework for 
agencies to coordinate their recovery efforts and provide estimates of 
the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. When completed, the recovery outline, draft recovery 
plan, and the final recovery plan will be available on our website 
(http://www.fws.gov/endangered), or from our New Mexico Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of New Mexico would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Sacramento Mountains checkerspot 
butterfly. Information on our grant programs that are available to aid 
species recovery can be found at http://www.fws.gov/grants.
    Although the Sacramento Mountains checkerspot butterfly is only 
proposed for listing under the Act at this time,

[[Page 3750]]

please let us know if you are interested in participating in recovery 
efforts for this species. Additionally, we invite you to submit any new 
information on this species whenever it becomes available and any 
information you may have for recovery planning purposes (see FOR 
FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the Forest Service.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, 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 any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. Based on the best available information, 
the following actions are unlikely to result in a violation of section 
9, if these activities are carried out in accordance with existing 
regulations and permit requirements; this list is not comprehensive:
    (1) Possession, delivery, or movement, including interstate 
transport and import into or export from the United States, involving 
no commercial activity, of dead specimens of this taxon that were 
collected prior to the effective date of a final rule adding this taxon 
to the Federal List of Endangered and Threatened Wildlife;
    (2) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, non-forested area management, 
private or commercial development, recreational trail or forest road 
development or use, road construction, prescribed burns, timber 
harvest, pesticide/herbicide application, or pipeline or utility line 
construction crossing suitable habitat) when such activity is conducted 
in accordance with a biological opinion from the Service on a proposed 
Federal action;
    (3) Low-impact, infrequent, dispersed human activities on foot or 
horseback that do not degrade butterfly habitat (e.g., bird watching, 
sightseeing, backpacking, hunting, photography, camping, hiking);
    (4) Activities on private lands that do not result in the take of 
the Sacramento Mountains checkerspot butterfly, including those 
activities involving loss of habitat, such as normal landscape 
activities around a personal residence, proper grazing management, road 
construction that avoids butterfly habitat, and pesticide/herbicide 
application consistent with label restrictions; and
    (5) Activities conducted under the terms of a valid permit issued 
by the Service pursuant to section 10(a)(1)(A) and 10(a)(1)(B) of the 
Act.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Capture (i.e., netting), survey, or collection of specimens of 
this taxon without a permit from the Service pursuant to section 
10(a)(1)(A) of the Act;
    (2) Incidental take of Sacramento Mountains checkerspot butterfly 
without a permit pursuant to section 10(a)(1)(B) of the Act;
    (3) Sale or purchase of specimens of this taxon, except for 
properly documented antique specimens of this taxon at least 100 years 
old, as defined by section 10(h)(1) of the Act;
    (4) Use of pesticides/herbicides that are in violation of label 
restrictions resulting in take of Sacramento Mountains checkerspot 
butterfly;
    (5) Unauthorized release of biological control agents that attack 
any life stage of this taxon;
    (6) Removal or destruction of the native food plants being used by 
Sacramento Mountains checkerspot butterfly, defined as Penstemon 
neomexicanus, Helenium hoopesii, or Valeriana edulis, within areas that 
are used by this taxon that results in harm to this butterfly; and
    (7) Destruction or alteration of Sacramento Mountains checkerspot 
butterfly habitat by grading, leveling, plowing, mowing, burning, 
herbicide or pesticide spraying, intensively grazing, or otherwise 
disturbing non-forested openings that result in the death of or injury 
to eggs, larvae, or adult Sacramento Mountains checkerspot butterflies 
through significant impairment of the species' essential breeding, 
foraging, sheltering, or other essential life functions.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:

[[Page 3751]]

    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals). Additionally, our regulations 
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of 
designating critical habitat only, as the abiotic and biotic setting 
that currently or periodically contains the resources and conditions 
necessary to support one or more life processes of a species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. The implementing regulations at 50 CFR 424.12(b)(2) further 
delineate unoccupied critical habitat by setting out three specific 
parameters: (1) When designating critical habitat, the Secretary will 
first evaluate areas occupied by the species; (2) the Secretary will 
only consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species; and (3) for an 
unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the status report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    As the regulatory definition of ``habitat'' at 50 CFR 424.02 
reflects, habitat is dynamic, and species may move from one area to 
another over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that

[[Page 3752]]

habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed earlier in this document, there is currently no 
imminent threat of collection or vandalism identified under Factor B 
for this species, and identification and mapping of critical habitat is 
not expected to initiate any such threat. In our current condition 
assessment report and proposed listing determination for the Sacramento 
Mountains checkerspot butterfly, we determined that the present or 
threatened destruction, modification, or curtailment of habitat or 
range is a threat to Sacramento Mountains checkerspot butterfly and 
that those threats in some way can be addressed by section 7(a)(2) 
consultation measures. The species occurs wholly in the jurisdiction of 
the United States, and we are able to identify areas that meet the 
definition of critical habitat. Therefore, because none of the 
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have 
been met and because the Secretary has not identified other 
circumstances for which this designation of critical habitat would be 
not prudent, we have determined that the designation of critical 
habitat is prudent for the Sacramento Mountains checkerspot butterfly.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
Sacramento Mountains checkerspot butterfly is determinable. Our 
regulations at 50 CFR 424.12(a)(2) state that critical habitat is not 
determinable when one or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located. Careful assessments of the economic and environmental impacts 
that may occur due to a critical habitat designation are not yet 
complete, and we are in the process of working with the States and 
other partners in acquiring the complex information needed to perform 
those assessments. The information sufficient to perform a required 
analysis of the impacts of the designation is lacking. Therefore, we 
conclude that the designation of critical habitat for the Sacramento 
Mountains checkerspot butterfly is not determinable at this time. As 
noted above, the Act allows the Service an additional year to publish a 
critical habitat designation that is not determinable at the time of 
listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the proposed rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, 
when the range of the species includes States within the Tenth Circuit, 
such as that of the Sacramento Mountains checkerspot butterfly, under 
the Tenth Circuit ruling in Catron County Board of Commissioners v. 
U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we 
undertake a NEPA

[[Page 3753]]

analysis for critical habitat designation. We will invite the public to 
comment on the extent to which the upcoming proposed critical habitat 
designation may have a significant impact on the human environment, or 
fall within one of the categorical exclusions for actions that have no 
individual or cumulative effect on the quality of the human 
environment. We will complete our analysis, in compliance with NEPA, 
before finalizing the upcoming proposed critical habitat rule.
Government-to-Government Relationship With Tribes
    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We solicited information from the 
Mescalero Apache Nation within the range of the Sacramento Mountain 
checkerspot butterfly to inform the development of the current 
condition assessment report, but we did not receive a response. We will 
also provide the Mescalero Apache Nation the opportunity to review a 
draft of the current condition assessment report and provide input 
prior to making our final determination on the status of the Sacramento 
Mountain checkerspot butterfly. We will continue to coordinate with 
affected Tribes throughout the listing process as appropriate.

References Cited

    A complete list of references cited in this proposed rule is 
available on the internet at http://www.regulations.gov and upon 
request from the New Mexico Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the New 
Mexico Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to 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. In Sec.  17.11 amend the table in paragraph (h) by adding an entry 
for ``Butterfly, Sacramento Mountains checkerspot'' to the List of 
Endangered and Threatened Wildlife in alphabetical order under INSECTS 
to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                   * * * * * *
             Insects
 
                                                  * * * * * * *
Butterfly, Sacramento Mountains   Euphydryas anicia   Wherever found....  E              [Federal Register
 checkerspot.                      cloudcrofti.                                           citation when
                                                                                          published as a final
                                                                                          rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-01210 Filed 1-24-22; 8:45 am]
BILLING CODE 4333-15-P