Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Tricolored Blackbird as Threatened or Endangered, 70483-70492 [E6-20547]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 233 (Tuesday, December 5, 2006)]
[Proposed Rules]
[Pages 70483-70492]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-20547]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Tricolored Blackbird as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the tricolored blackbird (Agelaius 
tricolor) as threatened or endangered under the Endangered Species Act 
of 1973, as amended. We find that the petition does not present 
substantial scientific or commercial information indicating that 
listing the tricolored blackbird may be warranted. Therefore, we will 
not be initiating a status review in response to this petition. We ask 
the public to submit to us any new information that becomes available 
concerning the status of, or threats to, the tricolored blackbird or 
its habitat at any time.

DATES: The finding announced in this document was made on December 5, 
2006. You may submit new information concerning this species for our 
consideration at any time.

ADDRESSES: The complete file for this finding is available for public 
inspection, by appointment, during normal business hours at the 
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
2800 Cottage Way, Room W-2605, Sacramento, California 95825-1846. New 
information, materials, comments, or questions concerning this species 
may be submitted to us at any time.

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor or 
Arnold Roessler, Listing Branch Chief of the Sacramento Fish and 
Wildlife Office (see ADDRESSES), by telephone at (916) 414-6600, or by 
facsimile to (916) 414-6712. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800/877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding 
on whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files at 
the time we make the determination. To the maximum extent practicable, 
we are to make this finding within 90 days of our receipt of the 
petition, and the finding is to be published in the Federal Register.
    This finding summarizes information included in the petition and 
information available to us at the time of the petition review. A 90-
day finding under section 4(b)(3)(A) of the Act and section 424.14(b) 
of our regulations is limited to a determination of whether the 
information in the petition meets the ``substantial information'' 
threshold. Substantial information is ``that amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted'' (50 CFR 424.14(b)).

Previous Federal Action

    In 1990, the California Department of Fish and Game (CDFG) added 
the tricolored blackbird to its list of Bird Species of Special 
Concern. In 1991 the Yolo Chapter of the National Audubon Society 
submitted a petition to the Service and to the California Fish and Game 
Commission to list the tricolored blackbird as a threatened or 
endangered species. Researchers (Hamilton et al. 1995, p. 7) working on 
the species in 1992 found that the population had increased from the 
late 1980s; thus, the petitioners withdrew their petition based on new 
information that the population numbers had increased. The Service 
included this species as a candidate (Category 2) for Federal listing 
as either threatened or endangered in the 1991 and 1994 Candidate 
Notice of Review (CNOR) (59 FR 58981, p. 58990, issued November 15, 
1994). Category 2 status included those taxa for which information in 
the Service's possession indicated that a proposed listing rule was 
possibly appropriate, but for which sufficient data on biological 
vulnerability and threats were not available to support a proposed 
rule. In the CNOR published on February 28, 1996, the Service announced 
a revised list of plant and animal taxa that were regarded as 
candidates for possible addition to the List of Threatened and 
Endangered Species (61 FR 7595). The revised candidate list included 
only former Category 1 species. All former Category 2 species were 
dropped from the list in order to reduce confusion about the 
conservation status of these species, and to clarify that the Service 
no longer regarded these species as candidates for listing. Since the 
tricolored blackbird was a Category 2 species, it was no longer 
recognized as a candidate species as of the February 28, 1996, CNOR. 
The tricolored blackbird is now considered a U.S. Fish and Wildlife 
Service Bird of Conservation Concern (USFWS 2002). This designation is 
a result of mandates required through the Fish and Wildlife 
Conservation Act, which in part requires the Service to identify 
nongame migratory bird species that, without additional conservation 
actions, are likely to become candidates for listing under the Act. One 
of the goals of identifying species of conservation concern is to draw 
attention to the

[[Page 70484]]

species in greatest need of conservation action and to focus funding 
and efforts on conserving the species and preclude the need for 
listing.
    On April 8, 2004, we received a petition to list the tricolored 
blackbird as a threatened or endangered species from the Center for 
Biological Diversity (Center for Biological Diversity 2004). The 
petitioner also requested an emergency listing of the species. The 
submission clearly identified itself as a petition and included the 
requisite identification information of the petitioner, as required in 
50 CFR 424.14(a). In our May 25, 2004, response letter to the 
petitioner, we said that we had reviewed the petition and determined 
that an emergency listing was not warranted, and that because of other 
court-ordered listing and critical habitat actions and settlements, we 
would not be able to otherwise address the petition to list the 
tricolored blackbird at that time, but would complete the action when 
workload and funding allowed.
    On July 15, 2005, we received a 60-day notice of intent to sue 
filed by the Center for Biological Diversity for lack of response to 
the petition to list the tricolored blackbird. On February 13, 2006, 
the Center for Biological Diversity filed a complaint for declaratory 
judgment and injunctive relief in Federal District Court for the 
Northern District of California (Center for Biological Diversity v. 
Norton et al., No. C-06-0928), for our failure to issue a mandatory 90-
day finding on the petition to list the tricolored blackbird. On May 
11, 2006, we reached an agreement with the plaintiff to complete the 
90-day finding by December 6, 2006, and if substantial, to complete the 
12-month finding by October 18, 2007. This notice constitutes the 90-
day finding for the April 8, 2004, petition to list the tricolored 
blackbird.

Species Information

Description and Taxonomy

    The tricolored blackbird (Agelaius tricolor) is a medium-sized 
blackbird species in which males and females differ in plumage, size, 
and behavior. Adult male plumage is entirely black with a blue gloss in 
full sunlight. Adult males also have white and red wing plumage, are 
generally larger than females, and perform a display when breeding 
(Beedy and Hamilton 1999, pp. 1, 10). Immature male plumage is duller 
black than adult male plumage and is mottled with gray, eventually 
becoming mostly dull black with mixed black shoulder patch (Beedy and 
Hamilton 1999, p. 2). Adult female plumage is primarily black, with 
grayish streaks. The chin and throat are relatively whitish, rarely 
with faint pinkish or peach wash and the shoulder patch is small and 
reddish. Immature female plumage is similar to that of the adult 
female, except the reddish shoulder patch is absent (Beedy and Hamilton 
1999, p. 2). Individuals range from 18 to 24 centimeters (cm) (7 to 9 
inches (in)) in length, and from 40 to 70 grams (g) (1 to 2 ounces 
(oz)) in body mass, depending on gender and season (Beedy and Hamilton 
1999, p. 2).
    The tricolored blackbird is a highly colonial species and forms the 
largest breeding colonies of any North American passerine (perching) 
bird species (Orians and Collier 1962, p. 450; Cook and Toft 2005, p. 
74). Breeding colonies can attract thousands of birds to a single site. 
During a 1931-1936 study, Neff (1937, pp. 75, 76) described locating a 
colony of tricolored blackbirds in 1934 that was estimated to have more 
than 200,000 nests. If we take the number of nests reported, and 
multiply by 1.5 (mean estimated sex ratio of 2 females per male), we 
can calculate an estimated number of breeding adults (Orians 1961a, pp. 
300, 308). Using this calculation, we estimate that Neff (1937, pp. 75, 
76) documented about 300,000 breeding adults in the one colony. 
However, a breeding colony can also contain as few as six nests (about 
nine breeding adults), which Neff (1937, p. 79) described finding in 
1932 in Solano County. The highly synchronized and colonial breeding 
behavior of the tricolored blackbird may have adapted to exploit a 
changing environment where the locations of secure nesting habitat and 
plentiful food supplies were variable from year to year (Orians 1961a, 
pp. 297, 305, 306; Orians and Collier 1962, p. 456; Payne 1969, p. 9).

Habitat

Breeding
    Tricolored blackbirds have three basic requirements in selecting a 
breeding colony site: (1) Open and accessible water; (2) a protective 
nesting substrate, such as flooded, spiny, or thorny vegetation; and 
(3) a suitable foraging area within a few kilometers of the nesting 
site to provide adequate food such as insects (Hamilton et al. 1995, p. 
25; Beedy and Hamilton 1997, p. 4).
    Neff (1937, pp. 67, 73) documented that the majority of tricolored 
blackbird breeding colony sites he observed were in marsh habitat 
dominated with cattails (Typha spp.) or bulrushes (tules) 
(Schoenoplectus spp. and Scirpus spp), or both. Neff (1937, p. 78) also 
stated that, while cattail and bulrushes were favored nesting 
substrates for the species, there was a surprising adaptability in the 
nest sites chosen. Vegetation such as barley (Hordeum spp.), mustard 
(Brassica nigra), blackberries (Rubus spp.), thistles (Cirsium and 
Centaurea spp.), nettles (Urtica sp.), and willows (Salix spp.) were 
used as nesting substrate, even when seemingly available cattail and 
bulrush marshes were nearby. These observations led Neff to conclude 
that marshes were not necessary for the continued existence of the 
tricolored blackbird, although he could not determine if there had been 
a change in habitat preference during the history of the species (Neff 
1937, p. 78).
    In recent decades many colonies of breeding tricolored blackbirds 
have been found to use nesting substrates such as giant cane (Arundo 
donax), safflower (Carthamus tinctorius), tamarisk (Tamarix spp.), mule 
fat (Baccharis salicifolia), Fremont cottonwood (Populus fremontii), 
California ash (Fraxinus latifolia), Himalayan blackberries (Rubus 
discolor), and wheat (Triticum spp.) (Beedy and Hamilton 1999, p. 5). 
The species has also been found in silage and grain fields in the San 
Joaquin Valley (Collier 1968, pp. 20, 21).
    Dairies and feedlots have been recently documented as habitat 
components for many tricolored blackbirds. In 1994, approximately 55 
percent of all observed breeding colonies were associated with dairies 
(Hamilton et al. 1995, pp. 5, 64). In some colonies, water source, 
nesting substrate, and foraging area were all available under the 
management of a single dairy operation.
    Hamilton (1998, p. 218) extensively studied the breeding season 
movements of tricolored blackbirds in the Central Valley of California, 
from 1994 to 1997. Hamilton (1998, p. 218) concluded from his data that 
tricolored blackbirds nest again in the same year at different 
localities, a pattern called itinerant breeding. Initiation of nesting 
in tricolored blackbirds occurs in late March to early April throughout 
California, but primarily in the San Joaquin Valley. Nesting occurs 
again in May to June in the Sacramento Valley and foothill rice growing 
areas (Hamilton 1998, pp. 223, 224; Beedy and Hamilton 1999, p. 4). 
Subsequent nesting efforts for tricolored blackbirds at some colonies 
may result in producing as many fledglings as the initial effort, but 
the usual nesting success is only a fraction of the initial effort 
(Beedy and Hamilton 1999, p. 11).

[[Page 70485]]

Foraging
    Tricolored blackbirds rapidly exploit any locally abundant insect 
prey, including grasshoppers (Orthoptera), beetles and weevils 
(Coleoptera), caddis fly larvae (Trichoptera), moth and butterfly 
larvae (Lepidoptera) (Crase and DeHaven 1978, p. 257), dragonfly nymphs 
(Odonata), and lakeshore midges (Diptera), as well as grains, snails, 
and small clams (Beedy and Hamilton 1999, p. 6). Tricolored blackbird 
foraging habitat during all seasons includes dry seasonal pools, 
pastures, rice fields, feedlots, dairies, and agricultural fields that 
are continuously mowed, such as alfalfa. The species is also known to 
forage in other areas, such as grasslands, marsh borders, and scrub, 
and saltbrush (Atriplex spp.), but rarely utilizes typically weed free 
areas such as vineyards, intensely managed orchards, and row crops 
(Beedy and Hamilton 1997, p. 5).
    Nesting tricolored blackbirds usually forage within 5 kilometers 
(km) (3 miles (mi)) of the breeding colony site (Orians 1961b, p. 299). 
However, Beedy and Hamilton (1997, p. 5) observed tricolored blackbirds 
foraging up to 13 km (8 mi) from the breeding colony. Orians (1961a, p. 
305) explained that the colonial structure of the tricolored blackbird 
is very energy demanding when compared to a similar species such as the 
red-winged blackbird, due to the large amount of energy expended while 
flying to and from distant feeding sites while providing forage for 
young. Food that can be rapidly exploited at the foraging site needs to 
meet the high energy requirement of the tricolored blackbird. Orians 
and Collier (1962, pp. 456-458) stated that because of the tricolored 
blackbird's high energy requirement, the species has an unpredictable 
breeding distribution and in unfavorable years has lower reproductive 
success than the red-winged blackbird. The presence of abundant and 
easily available food is a requirement for a successful tricolored 
blackbird colony and breeding location, and colony size can vary year 
to year depending on food availability and other environmental 
conditions (Orians 1961a, p. 308).

Range and Distribution

    The tricolored blackbird is largely native to California, where 
more than 95 percent of the population occurs. Neff (1937, p. 63) 
described the range of the tricolored blackbird as largely endemic to 
the lowlands of California, west of the Sierra Nevada, but also 
sparsely occurring in southernmost Oregon and northwestern Baja 
California. The elevational range of the tricolored blackbird was 
documented by Neff (1937, p. 80) as going from sea level in San Diego 
and Santa Cruz Counties to about 1,200 meters (m) (3,937 feet (ft)) at 
Klamath Lake, Oregon. High-elevation colonies have been found in 
California at 1,158 m (3,800 ft) near Tehachapi, Kern County (Collier 
1968, pp. 9, 10). DeHaven et al. (1975, p. 171) stated that the overall 
geographic range of the species had not changed very much in the past 
30 years, and that colonies were still found in southern Oregon through 
Shasta County, California, along the coast from Sonoma County, 
throughout the Central Valley, and south to northwestern Baja 
California, Mexico. Sparse colonies have also been documented in 
Washington and Nevada (Beedy and Hamilton 1999, p. 3).
United States
    California. Active tricolored blackbird breeding colonies have been 
recorded in 46 counties in California since the 1980s, with the largest 
colonies being observed in the Central Valley (Beedy and Hamilton 1999, 
p. 3). The species currently breeds west of the Cascade Range, into the 
foothills east of the Sierra Nevada, north in Honey Lake basin in 
Lassen County, and in marshes of the Klamath basin in Siskiyou and 
Modoc Counties. The species also breeds from Humboldt to Shasta 
Counties, continuing south to southwestern San Bernardino County, 
western Riverside County, and western and southern San Diego County 
(Beedy and Hamilton 1999, p. 3).
    Oregon. The most reoccurring breeding colonies in Oregon occur in 
southern Klamath and southern Jackson Counties. A few other isolated 
breeding occurrences have been documented in northeastern Multnomah 
County, John Day Fossil Beds National Monument in Wheeler County, 
Umatilla County, and Lake County in southern Oregon. Tricolored 
blackbird breeding colonies in Oregon range from dozens to a few 
thousand breeding adults (Beedy and Hamilton 1999, p. 3; Marshall et 
al. 2003, pp. 578-580).
    Washington. A small breeding colony was reported in Grant County in 
1998, the first recorded observation for the State (Beedy and Hamilton 
1999, p. 3). Since 1999, the species has been recorded every month, 
except during the month of August, in Adams County (Seattle Audubon 
Society Web site 2006). A small breeding colony was discovered along 
Crab Creek, Grant County in 1998. In 2005, an additional larger colony 
was recorded near Texas Lake in Whitman County (Seattle Audubon Society 
Web site, 2006).
    Nevada. The first recorded breeding colony of tricolored blackbirds 
was documented in 1996, in Carson Valley, Douglas County, in western 
Nevada (Beedy and Hamilton 1999, p. 3). More recent observations have 
found a recurring colony in a small freshwater marsh in the Carson 
Valley that is not known to exceed 20 breeding pairs of tricolored 
blackbirds per year (Floyd et al. 2006).
Mexico
    Baja California. Tricolored blackbirds breed primarily in emergent 
marsh from the central and western portions of Baja California Norte, 
south to El Rosario, Mexico (Beedy and Hamilton 1999, p. 3; Hamilton 
2006). Tricolored blackbird breeding colonies on Baja range from a 
handful of breeding adults to a few thousand, with very few birds being 
observed in winter months (Erickson 2006).

Winter Range

    In the winter, tricolored blackbirds reside within a portion of 
their breeding range, with concentrations in coastal areas such as 
Monterey, Marin, Sonoma, and Santa Cruz Counties, and in and around the 
Sacramento-San Joaquin River Delta in California (Beedy and Hamilton 
1999, p. 3). Some small populations may remain during the winter within 
Oregon, Nevada, other portions of California, and Baja California, 
Mexico (Beedy and Hamilton 1999, p. 3).

Population Studies

    Population studies on tricolored blackbirds began with the studies 
of Neff, who conducted observations on the species from 1931 through 
1936 covering portions of the range (Neff 1937, p. 62). Location and 
level of survey effort varied from year to year. Neff (1937, pp. 61-80) 
found up to 491,000 nests and an estimated 737,000 breeding birds in 
1934 within the Sacramento Valley.
    While completing life history studies in Colusa and Yuba Counties, 
Orians (1961a, p. 285, 286, 297) located a colony in 1960 with more 
than 100,000 nests (estimated 150,000 breeding birds) in Colusa County, 
and several other colonies from 1957 through 1960 which contained 
nearly 100,000 nests each. Orians (1961a, p. 309) stated that 
tricolored blackbirds were in no threat of immediate extinction and 
that their ecology led them to be highly adaptable birds.
    DeHaven et al. (1975 p. 166) completed a population survey in each

[[Page 70486]]

breeding season (April-June) from 1969 through 1972. DeHaven et al. 
(1975) estimated the population size of tricolored blackbird colonies 
using either of two methods: (1) Counting the number of breeding birds, 
or (2) Counting nests to estimate the number of breeding birds. In 1969 
and 1970, the surveys were concentrated in the Central Valley, but 
there were also reports from Riverside and Siskiyou Counties (DeHaven 
et al. 1975, p. 166). In 1969, an estimated 181,000 breeding birds were 
located in the 19 counties surveyed. In 1970, an estimated 84,850 
breeding birds were located in the 19 counties surveyed. In 1971, 
surveys attempted to include the entire breeding range, except Baja 
California, from San Diego to southern Oregon. An estimated 167,540 
breeding birds were reported from 24 counties in California and Oregon. 
In 1972, an estimated 97,850 breeding birds were reported from 14 
counties from the northern San Joaquin valley through to southern 
Oregon (DeHaven et al. 1975, pp. 169, 170, 177). DeHaven et al. (1975, 
p. 179) concluded the population had declined compared to the surveys 
conducted by Neff in the 1930s.
    In 1994, the National Audubon Society, CDFG, the Service, 
University of California at Davis (UCD), and experienced volunteers 
initiated a one-day, rangewide population census in California of the 
tricolored blackbird (Beedy and Hamilton 1997, pp. 12, 13). Nearly all 
areas of the species' range were surveyed (Hamilton et al. 1995, p. 7). 
The survey was conducted from April 22 through April 24, 1994, with the 
assumption that the minimum number of birds entering the 1994 breeding 
season would be documented (Hamilton et al. 1995, pp. 14, 15). Census 
participants located an estimated 324,621 breeding birds across the 
range. This number was significantly higher than estimates of between 
84,850 to 181,000 breeding birds reported by DeHaven et al. (1975).
    In 1997, a CDFG-coordinated population survey was conducted 
following the methods in Hamilton et al. (1995) (Beedy and Hamilton 
1997, p.13). On April 27, 1997, census participants located an 
estimated 217,696 breeding tricolored blackbirds as compared to an 
estimated 324,621 breeding birds in 1994.
    In 2000, the Service sponsored a population estimate survey, which 
was coordinated by UCD and the California Audubon Society between April 
21 and 24, 2000 (Hamilton 2000). The 2000 survey attempted to: (1) 
Locate all tricolored blackbird colonies throughout their current 
(April 21-24, 2000) distribution in California; (2) Estimate their 
numbers; and (3) Determine the outcome of their nesting activity 
(Hamilton 2000, pp. 7-8). As in past surveys in 1994 and 1997, focus on 
a particular date avoided counting birds twice as they moved to 
different areas during the breeding season. Approximately 153,995 
breeding birds were located throughout California during the April 
census (Hamilton 2000, p. 27). Hamilton (2000, p. 8) stated that this 
population estimate represented an uneven portion of the species' 
breeding range, because intensively farmed agricultural areas in the 
Central Valley are seldom surveyed, and as a result, colonies are 
likely not located.
    In 2004, a survey was conducted in the Central Valley and four 
counties outside the Central Valley (Siskiyou, Santa Clara, Monterey, 
and Riverside) from April 16 to April 19, 2004 (Green and Edson 2004, 
p. 23). The goal of the 2004 survey was to visit all historical 
breeding colonies in the Central Valley where 2,000 or more birds were 
previously found. Of the 184 historic colony sites surveyed (out of 216 
historic records), 28 sites surveyed supported active colonies (Green 
and Edson 2004, p. 25). Although no formal breeding population estimate 
was made for 2004, Green and Edson (2004, pp. 25, 27) reported that 
colony sizes recorded in 2004 were between 5 and 102,000 breeding 
adults.
    Hamilton (2004, p. 32), using his own data and data collected by 
Green and Edson (2004), estimated that 223,069 young fledged from the 
entire breeding season in 2004 (Hamilton 2004, p. 39). Approximately 
97,733 of the 223,069 fledged from a colony on Delevan National 
Wildlife Refuge (NWR) of an estimated 136,000 breeding birds (Hamilton 
2004, p. 38). This colony is the largest documented since the 1960s. In 
2005, Hamilton and Meese (2006, p. 6), using the same methods as in the 
1994, 1997, and 2000 surveys, estimated 260,000 breeding birds in the 
population.

Threats Analysis

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal list of 
endangered and threatened species. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act: (A) Present or threatened 
destruction, modification, or curtailment of habitat or range; (B) 
Overutilization for commercial, recreational, scientific, or 
educational purposes; (C) Disease or predation; (D) Inadequacy of 
existing regulatory mechanisms; or (E) Other natural or manmade factors 
affecting its continued existence. In making this finding, we evaluated 
whether threats to the tricolored blackbird as presented in the 
petition and other information available in our files at the time of 
the petition review may pose a concern with respect to the species' 
survival such that listing under the Act may be warranted. Our 
evaluation of these threats is presented below.
    For the five-factor threats analysis, we have included the 
information submitted by the petitioner in its entirety for each 
factor, and then included our evaluation of the information provided by 
the petition and our evaluation of other information available to us 
regarding threats to the species.

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

Information Provided by the Petitioner
Destruction of Native Habitats
    The petitioner claims that loss and degradation of native breeding 
habitat for the tricolored blackbird threaten the species and have led 
to a significant decline in the overall population size throughout its 
range. The petitioner cites the studies conducted in the 1930s (Neff 
1937) to support this claim. The population studies conducted by Neff 
(1937, p. 77) state that many favorable habitats of the tricolored 
blackbird, including emergent vegetation growth, have been destroyed by 
reclamation, drainage, dredging, reservoir construction, and clearing 
of marshes and canals.
    According to the petition, only 560,000 acres (ac) (226,624 
hectares (ha)) of the original 4 million ac (1.6 million ha) of 
wetlands in the Central Valley still existed by 1939, and by the mid 
1980s only 243,000 ac (98,339 ha) of wetlands remained (Beedy and 
Hamilton 1997, pp. 10, 11). The petition further states that native 
perennial grasslands have been reduced by more than 99 percent in the 
Central Valley and surrounding foothills of California (Beedy and 
Hamilton 1997, p. 11). The petition claims that the remaining marsh 
nesting habitat for tricolored blackbirds has been reduced to small 
isolated patches, and these patches support high concentrations of 
tricolored blackbird predators (predation is addressed under Factor C, 
below).
    The petition also discusses the loss of breeding habitat at sites 
where colonies once occurred, such as in Yolo County

[[Page 70487]]

during the 1930s. Colonies were not re-located due to little or no 
habitat remaining during subsequent studies between 1969 and 1972 
(DeHaven et al. 1975, p. 179).
Colony Destruction by Agricultural Activities
    The petition cites a white paper and briefing statement (USFWS 
2000, p. 1) to claim that tricolored blackbirds nest in grain silage 
fields at the same time that forage is harvested for optimum moisture 
content. The petition asserts that harvesting of grain silage causes 
nest destruction and direct mortality and further claims that this 
threatens most of the remaining breeding population of the species. In 
addition, the petition cites Beedy and Hamilton (1997, p. 17) to 
support the claim that many agricultural areas within the range of the 
tricolored blackbird have been converted to urban uses and that the 
urbanization of agricultural lands will continue to result in loss of 
habitat used by the tricolored blackbird.
    The petition states that tricolored blackbirds have been adaptive 
in their choice of nesting substrates and have shown an increasing 
trend towards use of upland substrates for nesting since the 1930s 
(Cook and Toft 2005, p. 75). The petition also states that use of 
silage fields at dairies is a relatively recent phenomenon and is a 
primary nest site selection substrate (Beedy and Hamilton 1997, pp. 4, 
18; Beedy and Hamilton 1999, p. 5).
    The petition provides data compiled from various surveys that 
provide examples of recent breeding failures because of silage harvest. 
The petition concedes that the list is not complete, and states that 
the concentration of most of the tricolored blackbird reproductive 
effort into a few large colonies that are selecting grain silage as a 
nesting substrate has greatly increased the risk of extinction should 
the annual destruction of such a large proportion of nests continue 
unabated (Cook and Toft 2005, p. 85).
Destruction of Other Suitable Upland Breeding Substrates and 
Surrounding Habitats
    The petition claims that more recent important nesting substrates 
include agricultural fields (especially grain silage) and Himalayan 
blackberry (DeHaven et al. 1975, pp. 171, 172; Hamilton et al. 1995, p. 
25; Cook 1996, pp. 23, 24). The petition claims that the lack of 
protection and loss of non-native nesting substrates such as Himalayan 
blackberry, thistle, and prickly lettuce are a threat to the tricolored 
blackbird. These non-native nesting substrates occur on private 
property and are often subject to removal. The petition states that 
Himalayan blackberry supports the highest density of nesting tricolored 
blackbirds among all other substrates, and that reproductive success is 
higher than in other commonly used substrates such as emergent marsh 
and silage (Cook and Toft 2005, pp. 85-86).
Curtailment of the Species' Range
    The petitioner contends that the loss of wetland and grassland 
habitats has led to tricolored blackbirds remaining in a few large but 
isolated population centers. However, the petitioner does not claim 
that the range of the species has declined significantly. The petition 
claims that the species is found throughout its former range, including 
small populations in Washington, Oregon, and Nevada, but that few if 
any reports of tricolored blackbird nesting have been confirmed since 
1999.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
Destruction of Native Habitats
    The petitioner cited Neff (1937, p. 77) and Beedy and Hamilton 
(1997, pp. 10, 11) to support the claim that there has been significant 
native habitat loss for the tricolored blackbird. The petition claims 
this is a threat to the species and that by 1939, 86 percent of native 
marsh habitat had been reduced in the Central Valley. We agree with the 
petitioner that wetland loss has occurred for many decades in the 
Central Valley of California, resulting in loss of tricolored blackbird 
habitat. However, our review of the literature found that while Neff 
(1937, pp. 78-79) does discuss that habitat loss had occurred prior to 
and during his studies from 1931 to 1936, he did state that all of the 
threats to the species during his studies, such as human activities, 
predators, weather, or other factors, had only minimal impact on the 
species. Further, Neff (1937 p. 78) stated that tricolored blackbirds 
showed surprising adaptability in their choice of nesting substrates, 
even when seemingly favorable native wetland marshes were available, 
and that tricolored blackbirds were nesting in almost every county in 
which they had nested during the period 40-70 years prior to his 
studies (approximately 1867 to 1897).
    Furthermore, Orians (1961a, p. 309) stated that Neff's (1937, p. 
62) studies were initiated due to the concern that tricolored 
blackbirds may not adapt well to conditions such as water drainage and 
conversion of grasslands to cultivation. Orians (1961a, pp. 309, 310) 
stated that tricolored blackbirds were not in danger of immediate 
extinction, but that they were highly adaptable in their choice of 
nesting substrate and in utilizing the abundant food supply of insects 
in agricultural lands of the California Central Valley. Because of the 
species' apparent ability to utilize a range of habitat types, we do 
not believe that historic habitat losses have been demonstrated to be a 
substantial threat to the species.
    DeHaven et al. (1975, pp. 175, 176, 179) also state that suitable 
nesting habitat for the tricolored blackbird had been lost in some 
local areas. However, they also state that these local losses in 
habitat have not contributed significantly to any overall population 
decline of the species, and that tricolored blackbirds leave many 
apparently suitable nesting sites unused, likely because of yearly food 
availability and water supply and other potentially unknown factors. 
DeHaven et al. (1975, pp. 166-180) stated that more research was needed 
to help isolate a cause for the apparent decline from 1969 to 1972, as 
compared to Neff's (1937, pp. 66, 67) population estimates from 1931 to 
1936. Because no complete surveys were conducted between 1937 and 1969, 
it is difficult to draw conclusions. Based on the limited number of 
surveys during this time period, it is possible that no decline did 
occur, and that population numbers are within a range of variability 
that would be expected for this species.
    As stated earlier in the Population Studies section, status surveys 
for tricolored blackbirds began with the studies of Neff from 1931 to 
1936 (Neff 1937, pp. 61-81), where Neff estimated between 95,000 and 
737,000 breeding birds for the 5-year timeframe. DeHaven et al. (1975, 
pp. 166-180) estimated a rangewide population of between 84,850 and 
181,000 breeding birds between 1969 and 1972. More recent surveys 
estimated 324,621 breeding birds in 1994; 217,696 in 1997; 162,000 in 
2000; and 260,000 in 2005. Based on these population estimates, we do 
not agree with the petitioner's assertion that the population is in 
decline. That relatively low numbers were recorded since Neff's (1937) 
high estimate of 737,000 birds in the 1930s does not in our view 
provide substantial information that the species may warrant listing 
because of the uncertainty of Neff's estimating procedures and recent 
comparable studies show the species to be stable or increasing since 
the 1970s.

[[Page 70488]]

Colony Destruction by Agricultural Activities
    The petition cites a Service white paper and briefing statement 
(Service 2000) stating that harvesting of grain silage causes nest 
destruction and direct mortality, which threatens most of the remaining 
breeding population of the species. We agree that active colonies 
nesting in silage should be protected, and that loss of tricolored 
blackbirds and reduction of nesting success occurs and may cause 
localized declines. The white paper and briefing statement was 
developed to inform and provide recommendations to Service management 
for managing tricolored blackbird use of dairy silage as a nesting 
substrate. The paper outlined concerns of using silage buyouts as a 
long-term solution to tricolored blackbird conservation. However, no 
information provided by the petitioners or other information otherwise 
available to us including the white paper or information cited in the 
paper (i.e. DeHaven 2000) suggests that silage harvest has or will 
contribute to a rangewide population decline. Population numbers since 
the 1970s, as discussed above, appear to be somewhat stable. Tricolored 
blackbirds may breed more than one time in the breeding season if a 
prior breeding effort failed (Hamilton 1998, pp. 223, 224). Although 
the subsequent breeding effort may be smaller than the initial effort 
(Beedy and Hamilton 1999, p. 11), the ability to re-nest probably 
mitigates the occasional loss of nests with silage cutting. Hamilton 
(2004, p. 43) also stated that the claim of declines in the tricolored 
blackbird population due to the harvesting of silage is not based upon 
a complete analysis of existing data.
Destruction of Other Suitable Upland Breeding Substrates and 
Surrounding Habitats
    The petition cites Cook and Toft (2005, pp. 85, 86) as stating that 
Himalayan blackberry supports the highest density of tricolored 
blackbird nesting among all other substrates, and that therefore lack 
of protection of this habitat is a threat to the tricolored blackbird. 
We agree that tricolored blackbirds may nest in non-native substrates 
such as Himalayan blackberry, thistles, and prickly lettuce, as stated 
by the petition. However, we have no information and the petitioner 
provided no information to suggest that the lack of protection of non-
native substrates such as Himalayan blackberry is a threat to the 
continued existence of the tricolored blackbird. Again, as stated 
above, the most recent surveys estimate the tricolored blackbird 
population has increased from 162,000 to 260,000 breeding birds since 
2000, and the number of birds appear to be consistent with, or higher 
than, the numbers of birds found in the 1970s. Further, no information 
is available to suggest that breeding habitat should be considered 
limiting, or that its loss should be considered a substantial threat. 
For these reasons, we reject the petitioner's assertions that lack of 
protection for breeding habitat should be considered a threat.
Range and Distribution
    The petition does not specifically claim that a reduction in range 
has occurred for the species, but it does state that few if any 
breeding reports outside of California have been confirmed since 1999. 
We reviewed currently available information on tricolored blackbird 
breeding from Washington, Oregon, and Nevada, and found that this 
information supports the contention that the species continues to breed 
in these areas and documents new areas where it has been found between 
2003 and 2006 (Marshall et al. 2003, pp. 578-580; Floyd et al. 2006; 
Seattle Audubon Society Web site, 2006). Based on this recent 
information we disagree with the petitioner that few if any breeding 
reports outside of California have been confirmed since 1999, but that 
the most current information shows new breeding colonies in all three 
states.
Summary of Factor A
    To summarize Factor A, information included in the petition and 
information otherwise available to us demonstrate that destruction of 
native habitats, direct nest loss and mortality caused by agricultural 
activities, and destruction of other suitable breeding habitats has 
occurred and may continue to impact the local abundance and viability 
of tricolored blackbirds. Loss of wetlands has occurred in the Central 
Valley of California in tricolored blackbird habitat for many decades. 
However, the population has increased in recent survey years and 
appears to be stable since the 1970s. The petition has presented no 
information that suggests that the habitat loss experienced is having 
an impact on the population levels of the tricolored blackbird. 
Additionally, the harvesting of silage during the tricolored blackbird 
breeding period can have localized negative impacts on species habitat 
and populations due to direct mortality and nest destruction. However, 
we currently have no information and the petition provided no 
information on how the loss of a local breeding effort affects the 
population in subsequent years, or to support a determination that 
silage harvesting is a substantial risk to the rangewide population and 
continued existence of the tricolored blackbird. The species is found 
throughout the majority of its historical range, with additional new 
breeding populations documented in Washington, Oregon, and Nevada. 
Therefore, we find that the petition and other information otherwise 
available to us does not contain substantial scientific or commercial 
information indicating that the continued existence of the species is 
threatened by the present or threatened destruction, modification, or 
curtailment of the species' habitat or range.

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

Information Provided by the Petitioner
    The petition claims that a history of widespread persecution of 
blackbird species has likely contributed to a decline in the tricolored 
blackbird. The petition cites Neff (1942, pp. 46, 47) who stated that 
in 1928 and 1929, market hunting for blackbirds in the Central Valley 
of California became a thriving business and a market was created in 
large cities by Italian produce firms. Market hunters killed thousands 
of blackbirds; it was reported that one group of market hunters shipped 
nearly 400,000 blackbirds from the Sacramento Valley in five seasons 
(Neff 1942, pp. 46). Market hunting started to decrease by 1936 and 
1937, with an estimated 88,000 birds being shipped (Neff 1942, pp. 47).
    The petition also cites Neff (1942, pp. 46, 47) as stating that 
numerous blackbirds were reportedly shot by ranchers, used by people as 
target practice, and poisoned to control damage to crops. The 
petitioners state that these killings were a source of high adult 
mortality. The petitioners also state that poisoning of thousands of 
blackbird species to control rice crop damage in the Central Valley of 
California continued until the 1960s (Beedy and Hamilton 1997, p. 18). 
The petition states that due to improved harvesting methods, rice 
varieties that ripen faster, and fewer individual blackbirds, 
extermination programs have ceased; however, the historic occurrence of 
blackbird poisoning has likely contributed to the species' population 
decline (Beedy and Hamilton 1997, p. 18).

[[Page 70489]]

Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    We agree that tricolored blackbirds were deliberately killed 
historically for market use, sport hunting, or protection of crops by 
use of poisons or guns; however, we are not aware of a current market, 
sport hunting or protection of crops by the use of poison on the 
tricolored blackbird. No information was provided by the petitioners or 
was available to us that documents any historic or current information 
describing how poisoning or market hunting may have contributed to the 
overall decline of the species' population size or reduction in its 
range. Therefore, we find that the petition does not contain 
substantial scientific or commercial information to indicate that the 
tricolored blackbird is threatened by overutilization for commercial, 
recreational, scientific, or educational purposes.

C. Disease or Predation

Information Provided by the Petitioner
    The petition cites several papers (Hamilton et al. 1995, p. 21; 
Beedy and Hamilton 1997, p. 10; Hamilton 2000, p. 14) that describe 
predation as major cause of large-scale nesting failures in many 
tricolored blackbird colonies, especially those colonies that nest in 
native emergent marsh. The petition cites Hamilton et al. (1995, pp. 
21, 35) and Hamilton (2000, pp. 13, 14) to claim that black-crowned 
night-heron and raccoon predation on tricolored blackbird colonies in 
marshes can destroy all or the majority of nests within such colonies, 
which results in nest failure of the entire colony. The petition states 
that tricolored blackbirds nesting at Kern NWR in Kern County and the 
Maxwell I and II colonies in Colusa County failed due to black-crowned 
night-heron predation. The petitioners also state that black-crowned 
night-heron predation on the tricolored blackbird is of special concern 
at National Wildlife Refuges, because the refuges are becoming more 
important nesting sites for black-crowned night-herons and tricolored 
blackbirds as private lands are converted to other uses, and as grain 
silage fields may be harvested during the tricolored blackbird nesting 
season. The petition cites Cook and Toft (2005, pp. 80-82) to claim 
that tricolored blackbird reproductive success was much lower in native 
emergent marsh than in any other nesting substrate, except for silage 
that was lost to harvesting operations.
    The petition also cites a long list of historic, native predators 
that may have preyed upon tricolored blackbirds, and claims there have 
been recent reports of predation on tricolored blackbird colonies by 
feral cats (Felis catus) (Beedy and Hamilton 1997, p. 17). The petition 
also states that tricolored blackbirds are not aggressive towards 
predators and will sit silently instead of attacking, unlike the 
behavior of red-winged blackbirds (Beedy and Hamilton 1997, p. 17, 
Beedy and Hamilton 1999, p. 12).
    The petition does not discuss or provide any information on how 
disease threatens the tricolored blackbird.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    The petition infers from Hamilton et al. (1999) that reproductive 
success of tricolored blackbirds in cattail marshes is low because of 
the high rate of predation that this nesting substrate endures due to 
high concentration of predators such as raccoons and black-crowned 
night-herons. Hamilton et al. (1999, p. 12) stated that expansion of 
large cattail nesting areas for tricolored blackbirds should be 
avoided, due to high predation of colonies in this type of nesting 
substrate. However, Hamilton (2000 p. 20) withdrew the previous 
statement made in 1999 due to observations made in 2000 of low or 
absent black-crowned night-heron predation on other tricolored 
blackbird colonies nesting in cattails. In 2000, Hamilton (2000, p. 28) 
observed large tricolored blackbird colonies in cattails which were not 
preyed upon by black-crowned night-herons. The large colonies include 
the two colonies on Delevan NWR that contained approximately 37,000 
breeding adults and produced approximately 34,000 successful 
fledglings. In 2004 at Delevan NWR in Colusa County, a large colony 
(approximately 135,000 breeding adults) successfully nested in a 
cattail marsh, producing approximately 97,000 fledglings (Hamilton 
2004, p. 35). While some predation probably occurs at all tricolored 
blackbird colonies, there is insufficient information to suggest or 
conclude that predation on nests in cattail marshes is a threat at the 
population level.
    The petitioners cited an example that tricolored blackbirds nesting 
at Kern NWR in Kern County and at Maxwell I and II in Colusa County 
failed due to black-crowned night-heron predation. We presume that the 
petitioners used Hamilton (2000, pp. 28, 29) for the Maxwell example, 
since no reference was given. The data provided by Hamilton (2000, p. 
28) indicate the Maxwell I nesting site produced approximately 1,199 
successful fledglings from about 5,000 breeding adults, while the 
Maxwell II nesting site only produced 38 successful fledglings from 
about 2,000 breeding adult tricolored blackbirds. No information was 
provided or available to determine why the fledgling rate at Maxwell II 
was low. We also could not determine what documentation the petitioners 
used to support their claim that a colony at Kern NWR failed due to 
predation. According to DeHaven (2000, pp. 17, 18), predation is 
reported by researchers about as frequently in the 1990s as it was in 
the 1970s, and it is not known if the losses to tricolored blackbird 
colonies from predation are within a historical and normal range that 
would be expected of a colonial nesting species.
    Payne (1969, p. 26) states that the loss to any one breeding effort 
of a tricolored blackbird colony may be reduced due to the species' 
dense colony structure; a colony is likely to occur within the 
territory of only one predaceous raptor. Although tricolored blackbirds 
have demonstrated that they are not aggressive defenders against 
predators, there is no information available to us or submitted by the 
petitioner that shows that lack of aggression towards predators may 
threaten the continued existence of the tricolored blackbird.
    The petitioner cited Beedy and Hamilton (1997, p. 17) as stating 
that predation on tricolored blackbird nests by feral cats is a recent 
phenomenon. We found that Beedy and Hamilton (1997, p. 17) cited Payne 
(1969, p. 25) who reported predation of tricolored blackbirds by feral 
cats. Payne (1969, p. 25) states that dozens of tricolored blackbird 
adults were found dead around a marsh in Marysville, California, and 
appeared to have been killed by numerous feral cats. While the Service 
agrees that predation on the species' nests by feral cats is a more 
recent occurrence than other predation reported in the early 1900s, 
there is no current evidence available to us or supplied by the 
petitioner to suggest that feral cat predation is significant range 
wide, or a threat to the continued existence of the tricolored 
blackbird.
Summary of Factor C
    To summarize factor C, information provided in the petition and 
other available information suggests that predation on tricolored 
blackbird colonies does occur. Predation on tricolored blackbird 
colonies nesting in cattail marshes by black-crowned night-herons has 
been documented. While the Service agrees that predation occurrences 
may be the potential cause of some nesting failures, especially in

[[Page 70490]]

cattail marshes, evidence also demonstrates that tricolored blackbirds 
can breed successfully in cattail marshes. There is no evidence that 
predation has increased above natural levels and is often localized in 
nature. We are not aware of any information indicating that predation 
has caused a reduction in the range or population size of the species, 
or that a reduction in the population of this species is likely to 
occur in the future due to predation. Therefore, we find that the 
petition does not contain substantial scientific or commercial 
information to document disease or predation may be a factor that 
threatens the tricolored blackbird.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided by the Petitioner
    The petition claims that the tricolored blackbird is not protected 
by existing regulatory mechanisms. The petition stated that the 
tricolored blackbird is considered a non-game bird of management 
concern by the Service. The petition also stated that the tricolored 
blackbird is considered a species of special concern by the CDFG. 
Additionally, the petition states that the tricolored blackbird is not 
listed under the Act or the California Endangered Species Act 
(California Fish and Game Code section 2070 et seq). The petition 
claims that current designations do not provide specific legal 
protection to the species aside from the requirement that a project may 
trigger California Environmental Quality Act (CEQA) review where the 
impacts of the proposed action on the species must be analyzed. Actions 
that do not trigger CEQA would not require review. The petition also 
claims CEQA's mandates for environmental protection have not been 
implemented to protect the tricolored blackbird.
    The petition states that the Migratory Bird Treaty Act (MBTA) 
should afford the species protection; however, the petition further 
states that the statute is rarely if ever enforced against private 
landowner violators, and that enforcement agencies have turned a 
``blind eye'' to annual violations of the MBTA by private landowners. 
The petition states that the statute strictly prohibits all ``taking'' 
(to ``pursue, hunt, shoot, wound, kill, capture, or collect,'' or 
attempt to do so) of migratory birds unless authorized by a permit 
issued under Department of the Interior regulations (16 U.S.C. 703) and 
under 50 CFR 10.12. The petition claims that private property owners 
who destroy tricolored blackbird nests are in clear violation of the 
MBTA and its implementing regulations.
    Additionally, the petition claims that private landowners with 
dairies or other commercial agricultural operations on their property 
are in violation of the California Business and Professions Code 
Section 17200, and the MBTA. The petition states that the code defines 
``unfair competition'' to include ``unlawful, unfair or fraudulent 
business practice and unfair, deceptive, untrue or misleading 
advertising.'' A business practice constitutes unfair competition if it 
is forbidden by any law, whether civil or criminal, whether Federal, 
State, or municipal, or whether statutory, regulatory, or court-made. 
The petition claims that private business owners who are destroying 
tricolored blackbird nests are vulnerable to enforcement actions under 
both the MBTA and the California Business and Professions code.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    The tricolored blackbird is considered a U.S. Fish and Wildlife 
Service Bird of Conservation Concern (USFWS 2002). In general, species 
are classified as such because of (1) Documented or apparent population 
declines, (2) Small or restricted population, or (3) Dependence on 
restricted or vulnerable habitats. This designation is a result of 
mandates required through the Fish and Wildlife Conservation Act, which 
in part requires the Service to identify non-game migratory bird 
species that, without additional conservation actions, are likely to 
become candidates for listing under the Act. While all of the bird 
species included in the list are priorities for conservation action, 
the list makes no finding with regard to whether they warrant 
consideration for federal listing. The goal is to prevent or remove the 
need for additional listings by implementing proactive management and 
conservation actions.
    In May 1990, the CDFG added the tricolored blackbird to its species 
of concern list. In general CDFG classifies species as such because 
they (1) Are declining at a rate that could result in listing, or (2) 
historically occurred in low numbers and known threats to their 
persistence currently exist. This classification offers no legal 
protection in itself, but encourages consideration of the species in 
impact analyses, mitigation planning, and other environmental 
documentation (Beedy et al. 1991, p. 5).
    Local governments are typically the lead agency for conducting CEQA 
review of projects to convert native vegetation; thus, CDFG considers 
an environmental document prepared by the lead agency. CDFG considers 
potential impacts of the proposed project and provides information to 
the lead agency about possible impacts to wildlife species and habitat. 
CDFG can provide advisory recommendations for avoiding, minimizing, and 
mitigating impacts of the project. Recommended measures to reduce or 
avoid impacts do not become mandatory, unless adopted by the lead 
agency. Changes in agricultural uses, including those that may result 
in impacts to tricolored blackbirds, do not typically trigger CEQA 
requirements or allow for CDFG review (Gustafson and Steele 2004, p. 
31).
    The Migratory Bird Treaty Act implements various treaties and 
conventions between the United States and Canada, Japan, Mexico, and 
the former Soviet Union for the protection of migratory birds. Under 
the MBTA, taking, killing or possessing migratory birds is unlawful. 
Unless permitted by regulations, the MBTA provides that it is unlawful 
to pursue, hunt, take, capture or kill; attempt to take, capture, or 
kill; possess; offer to or sell, barter, purchase, or deliver; or cause 
to be shipped, exported, imported, transported, carried, or received, 
any migratory bird, part, nest, egg or product, manufactured or not (16 
U.S.C. 703). According to the MBTA, a person, association, partnership, 
or corporation that violates the MBTA or its regulations is guilty of a 
misdemeanor and subject to a fine of up to $15,000, jail up to 6 
months, or both. Anyone who knowingly takes a migratory bird and 
intends to, offers to, or actually sells or barters the bird is guilty 
of a felony, with fines up to $2,000, jail up to 2 years, or both (16 
U.S.C. 707).
    Historically for the tricolored blackbird, the majority of breeding 
occurred in marshes and blackberry thickets. More recently, the species 
may nest in the grain silage fields associated with diaries. These 
grain silage fields are often harvested (when moisture content of the 
forage is optimal) while nesting species are still present (DeHaven 
2000, p. 1). The Service agrees with the petitioner that harvesting of 
silage while the species is still nesting would be a violation of the 
MBTA if eggs and young are destroyed. We pursue investigation of such 
MBTA violations as we are made aware of their occurrence.
    As stated in the petition, the MBTA is the current Federal 
regulatory mechanism in place to protect the tricolored blackbird 
throughout its range in the United States. The petition claims that the 
Service turns a ``blind eye'' to

[[Page 70491]]

violations of the MBTA. We are unaware of, and were not provided by the 
petitioners, with information that documents lack of enforcement of 
specific violations under the MBTA. Therefore, we believe that the MBTA 
provides protections for the species.
    In an effort to conserve and protect the tricolored blackbird, the 
Service and CDFG have been cooperating with public and private 
stakeholders to address and prevent violations of the MBTA and CEQA. 
The petition acknowledges these efforts and cites a 2000 example of 
Tevelde Farm in which the agencies arranged to compensate the farm to 
delay harvesting of silage to allow approximately 20,000 tricolored 
blackbirds to fledge. The Service and CDFG have been funding private 
landowners for purchase of silage crops or delay of harvesting 
activities since 1993 to avoid taking of nesting tricolored blackbirds 
in silage and to enhance reproductive success. The Service recognizes 
that these silage purchases or reimbursements for delay of harvest are 
not long-term solutions, and will be used as a short-term approach 
until a long-term management strategy can be devised to increase 
protection of the tricolored blackbird.
Summary of Factor D
    To summarize Factor D, existing Federal and State regulations 
currently provide protection for the tricolored blackbird through the 
Federal Migratory Bird Treaty Act and CEQA review process. The 
petitioners only provide speculation on the lack of regulatory 
enforcement of the MBTA and CEQA and do not mention specific instances 
where these Acts were not enforced. Further, there is no evidence that 
lack of regulatory mechanisms is causing a population decline. Due to 
this lack of information, we are unable to determine that the 
inadequacy of existing regulatory mechanisms has led to reduction in 
the population size across all or within the range of the species, or 
that a reduction in the population of this species is likely to occur 
in the future. Therefore, we find that the petition does not present 
substantial scientific or commercial information that lack of 
regulatory mechanisms may present a threat to the tricolored blackbird.

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

Information Provided by the Petitioner
Chemical Contaminants
    The petition claims that chemical contaminants are a threat to 
birds, including the tricolored blackbird, and those contaminants can 
cause mortality and nesting failures. While the petition acknowledges 
that the ``link between environmental contaminants and nesting failure 
of tricolor[ed]s is largely unstudied,'' the petition claims that some 
mortality of tricolored blackbirds has been documented due to chemical 
toxicity and this source of mortality could become more substantial if 
tricolored blackbird populations continue to decline. Citing Beedy and 
Hayworth (1992, pp. 33-35), the petition describes a complete nesting 
failure of approximately 50,000 tricolored blackbirds, at Kesterson 
Reservoir in Merced County in 1986. The petition also cites Beedy and 
Hayworth (1992, pp. 33-35), who collected dead nestlings, of which some 
had club feet, along with other species of birds that had similar 
deformities, and sampled tricolored blackbird nestlings and found them 
to have higher concentration of selenium in their livers than that of 
red-winged blackbirds sampled at a nearby location. The petition cites 
Beedy and Hamilton (1997, pp. 18, 19) who stated that the suspected 
cause of tricolored blackbird nestling deaths in 1986 was from selenium 
contamination.
    The petition further cites Beedy and Hamilton (1999, p. 18): 
Reporting biologist William J. Hamilton III personally observed a 
tricolored blackbird colony that failed to hatch due to mosquito 
abatement spraying in Kern County. The petition also cites the 
California Department of Pesticide Regulation (CDPR) data (CDPR Web 
site data 2002) detailing types and quantities of chemicals used in 
Sacramento, San Joaquin, Merced, Fresno, and Tulare Counties. The 
petition cites EXOTOXNET (2004) to describe which chemicals are toxic 
to birds in general. The petition additionally states that although 
tricolored blackbirds were not studied directly, many of the chemicals 
listed by the CDPR data are highly toxic to birds and are used within 
the known breeding range of the species.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    Beedy and Hayworth (1992, p. 42) describe that in April 1986, 
approximately 47,000 tricolored blackbirds tried to nest at Kesterson 
Reservoir. Surveys were conducted from April 18 to 23, 1986, of 162 
tricolored blackbird nests. The study found that 84.6 percent of those 
nests were either empty or contained addled eggs or dead chicks, and 
266 additional chicks were found dead on levee roads. Only 100 birds 
were fledged from the Kesterson Reservoir colony, which suggests a near 
nesting failure in the 1986 breeding season. Some of the dead nestlings 
from 1986, along with dead nestlings from further studies in 1987, were 
examined for deformities and their livers were screened for toxins, and 
some of the nestlings from both years were determined to have club feet 
and high levels of selenium in their livers. Beedy and Hayworth (1992, 
pp. 41, 42) state that more research was needed to determine if 
selenium contamination was the reason of nestling mortality, and if the 
nesting failures observed were an isolated incident or a widespread 
general decline of the tricolored blackbird, since the cause and 
magnitude of nestling mortality vary tremendously between colonies. 
Additionally, in 1986, the U.S. Department of the Interior decided to 
close the San Luis Drain, so selenium and salt no longer concentrate at 
Kesterson, and tricolored blackbirds no longer nest there. Aside from 
the nesting failure due to the potential selenium contamination in 
1986, we were provided no information in the petition nor have we 
received any other information of other potential selenium-related 
nesting failures in tricolored blackbirds or any information supporting 
the idea that selenium contamination is currently a threat to the 
tricolored blackbird. There also was no information provided by the 
petition or otherwise available that describes what effect the nesting 
failure at Kesterson had on the tricolored blackbird population in 1986 
or subsequent nesting seasons.
    The petition did not provide, and we are not aware of, any 
information or data to support the observation William J. Hamilton III 
made in Kern County of a complete nesting failure due to the spraying 
of mosquito abatement. We are not aware of any information or data that 
documents this nesting failure or whether the nesting failure was due 
to chemical contamination or other factors. While providing information 
on pesticide use in five counties in California from the CDPR, the 
petition did not provide information beyond speculation regarding the 
effects of these