Endangered and Threatened Wildlife and Plants; Final Rule To Amend the Listing for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) To Specify Over What Portion of Its Range the Subspecies Is Threatened, 39790-39838 [E8-15141]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 133 (Thursday, July 10, 2008)]
[Rules and Regulations]
[Pages 39790-39838]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-15141]



[[Page 39789]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Rule To Amend the 
Listing for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei) 
To Specify Over What Portion of Its Range the Subspecies Is Threatened; 
Final Rule

Federal Register / Vol. 73, No. 133 / Thursday, July 10, 2008 / Rules 
and Regulations

[[Page 39790]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R9-ES-2007-0003; 92220-1113-0000; C6]
RIN 1018-AV64


Endangered and Threatened Wildlife and Plants; Final Rule To 
Amend the Listing for the Preble's Meadow Jumping Mouse (Zapus 
hudsonius preblei) To Specify Over What Portion of Its Range the 
Subspecies Is Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service/USFWS), under 
the authority of the Endangered Species Act of 1973, as amended (Act), 
amend the listing for the Preble's meadow jumping mouse (Zapus 
hudsonius preblei) (Prebles) to specify over what portion of its range 
the subspecies is threatened. Based on the best scientific and 
commercial data available, we have determined that the Prebles is a 
valid subspecies and should not be delisted based upon taxonomic 
revision; the subspecies is not threatened throughout all of its range; 
and the portion of the subspecies' current range located in Colorado 
represents a significant portion of the current range where the 
subspecies should retain its threatened status. This determination is 
based on a thorough review of all available information, which 
indicates that Prebles' populations in Wyoming are more widespread and 
threats to the subspecies less severe than those known at the time of 
listing, but that in Colorado the Prebles is likely to become 
endangered within the foreseeable future.

DATES: This rule is effective August 11, 2008.

FOR FURTHER INFORMATION CONTACT: Susan Linner, Field Supervisor, U.S. 
Fish and Wildlife Service, Colorado Field Office at 134 Union Blvd., 
Suite 670, Lakewood, CO 80228; telephone (303) 236-4773. Individuals 
who are hearing-impaired or speech-impaired may call the Federal Relay 
Service at 1-800-877-8339 for TTY assistance.

SUPPLEMENTARY INFORMATION:

General Information

    Meadow jumping mice (Zapus hudsonius) are small rodents with long 
tails, large hind feet, and long hind legs. Total length of an adult is 
approximately 187 to 255 millimeters (7 to 10 inches), with the tail 
comprising 108 to 155 millimeters (4 to 6 inches) of that length 
(Krutzsch 1954, p. 420; Fitzgerald et al. 1994, p. 291).
    Typical habitat for Prebles is comprised of well-developed riparian 
vegetation with adjacent, relatively undisturbed grassland communities 
and a nearby water source (Bakeman 1997, pp. 22-31). Prebles are 
typically captured in areas with multi-storied cover with an understory 
of grasses or forbs or a mixture thereof (Bakeman 1997, pp. 22-31; 
Bakeman and Deans 1997, pp. 28-30; Meaney et al. 1997a, pp. 15-16; 
Meaney et al. 1997b, pp. 47-48; Shenk and Eussen 1998, pp. 9-11; Schorr 
2001, pp. 23-24). The shrub canopy is often willow (Salix spp.), 
although other shrub species may occur (Shenk and Eussen 1998, pp. 9-
11). Trainor et al. (2007, pp. 471-472) found that high-use areas for 
Prebles tended to be close to creeks and were positively associated 
with the percentage of shrubs, grasses, and woody debris. Hydrologic 
regimes that support Prebles' habitat range from large perennial rivers 
such as the South Platte River to small drainages only 1 to 3 meters 
(m) (3 to 10 feet (ft)) in width.
    Meadow jumping mice are primarily nocturnal or crepuscular (active 
during twilight), but also may be active during the day. The Prebles 
uses uplands at least as far out as 100 m (330 ft) beyond the 100-year 
floodplain (Shenk and Sivert 1999a, p. 11; Ryon 1999, p. 12; Schorr 
2001, p. 14; Shenk 2004; USFWS 2003b, p. 26). While the Prebles' 
dispersal capabilities are thought to be limited, in one instance a 
Prebles was documented moving as far as 1.1 kilometers (km) (0.7 mile 
(mi)) in 24 hours (Ryon 1999, p. 12). The Prebles typically enters 
hibernation in September or October and emerges the following May 
(Whitaker 1963, p. 5; Meaney et al. 2003).
    For additional information on the biology of this subspecies, see 
the May 13, 1998, final rule to list the Prebles as threatened (63 FR 
26517) and the June 23, 2003, final rule designating critical habitat 
(68 FR 37275).

Previous Federal Actions

    We listed the Prebles as threatened under the Act on May 13, 1998 
(63 FR 26517). On May 22, 2001 (66 FR 28125), we adopted a final 
section 4(d) special rule for the Prebles that provides exemptions from 
section 9 take prohibitions for certain rodent control activities, 
ongoing agricultural activities, maintenance and replacement of 
existing landscaping, and existing uses of water. On October 1, 2002 
(67 FR 61531), we amended this rule to provide exemptions for certain 
noxious weed control and ditch maintenance activities. The special 
rule, as amended, was scheduled to end May 22, 2004, but was made 
permanent on May 20, 2004 (69 FR 29101). On June 23, 2003, we 
designated critical habitat for the Prebles in portions of Colorado and 
Wyoming (68 FR 37275).
    In June 2000, the Service established the Preble's Meadow Jumping 
Mouse Recovery Team (Recovery Team) composed of scientists and 
stakeholders. In June 2003, the Recovery Team provided their 
recommendations to the Service in the form of a draft recovery plan. 
The Service revised this technical working draft in November 2003. This 
document (hereafter referred to as the Preliminary Draft Recovery Plan) 
suggests the long-term protection of populations spread throughout the 
current range of the subspecies in order to lessen or eliminate 
threats. In particular, the documents suggest long-term protection of 1 
large population (with June abundances of 2,500 or more individuals), 2 
medium populations (with June abundances of 500-2,499 individuals), and 
6 small populations (with evidence of occupancy; possibly 150 mice) 
within the North Platte River basin; 2 large, 3 medium, and 18 small 
populations within the South Platte River basin; and 1 large 
population, and 6 small populations within the Arkansas River basin 
(USFWS 2003b, pp. 19-23). Recovery planning efforts were halted in 
December 2003 after new information became available questioning the 
taxonomic validity of the subspecies. While the availability of the 
Preliminary Draft Recovery Plan (USFWS 2003b) has not yet been 
announced in the Federal Register, it represents the best scientific 
information available to us concerning recovery needs of the Prebles.
    On December 23, 2003, we received two nearly identical petitions, 
from the State of Wyoming's Office of the Governor and Coloradans for 
Water Conservation and Development, seeking to remove the Prebles from 
the Federal List of Endangered and Threatened Wildlife (Freudenthal 
2003; Sonnenberg 2003). The petitions maintained that the Prebles 
should be delisted based on the taxonomic revision suggested by Ramey 
et al. (2003) and new distribution, abundance, and trends data that 
suggested the subspecies was no longer threatened or endangered 
(Freudenthal 2003, p. 1; Sonnenberg 2003, p. 1).
    On March 31, 2004, we published a notice announcing a 90-day 
finding that the petitions presented substantial information indicating 
that the

[[Page 39791]]

petitioned action may be warranted (69 FR 16944). On February 2, 2005, 
we published a 12-month finding that the petitioned action was 
warranted and a proposed rule to remove Prebles from the Federal List 
of Endangered and Threatened Wildlife (70 FR 5404). This notice also 
opened a 90-day public comment period. The proposed delisting was based 
upon a taxonomic revision suggested by Ramey et al. (2004a (a revision 
of Ramey et al. 2003)), which concluded that Prebles should be 
synonymized with a neighboring subspecies (Ramey et al. 2004a, pp. 1, 
13). Although this report remained unpublished and had received mixed 
peer reviews, we concluded that a lack of distinct genetic and 
morphologic differences suggested that Prebles was likely not a valid 
subspecies of meadow jumping mouse (Zapus hudsonius). Considering the 
weight that the findings of Ramey et al. (2004a) had in the proposed 
delisting, verifying these results prior to making a final decision on 
the proposal was a high priority of the Service (Williams 2004; 
Morgenweck 2005). As such, we contracted with the U.S. Geological 
Survey (USGS) to conduct additional genetic analysis of Prebles and 
four neighboring subspecies of meadow jumping mice (USGS 2005, pp. 1-
4).
    On January 25, 2006, the USGS released its report concluding that 
the Prebles should not be synonymized with neighboring subspecies of 
meadow jumping mice (King et al. 2006a, pp. 2, 29). On February 17, 
2006, the Service extended the rulemaking process an additional 6 
months as allowed under section 4(b)(6)(B)(i) of the Act (71 FR 8556). 
This USGS study indicated that there was substantial disagreement 
regarding the sufficiency or accuracy of the available data relevant to 
the determination contained in our proposed rule. We reopened the 
comment period for an additional 60 days and announced that we intended 
to assemble a panel of experts to carefully review and assess the two 
studies.
    On March 30, 2006, we published a notice of availability of the 
King et al. (2006a) and Ramey et al. (2005) data and extended the 
comment period on the proposed delisting rule an additional 30 days (71 
FR 16090). We then contracted with Sustainable Ecosystems Institute 
(SEI) to organize a scientific review panel to analyze, assess, and 
weigh the reasons why the data, findings, and conclusions of King et 
al. differed from the data, findings, and conclusions of Ramey et al. 
(as written in this sentence, and hereafter, ``Ramey et al.'' or ``King 
et al.'' without a modifying date refers to the overall work of these 
authors instead of a specific publication) (USFWS 2006, p. 14). On July 
21, 2006, SEI delivered a final report to the Service (SEI 2006a).
    On September 26, 2006, the State of Wyoming submitted a 60-day 
notice of intent to sue over our failure to publish a final 
determination on our 2005 proposed delisting rule within the timeframes 
allowed by the Act. On January 24, 2007, the State of Wyoming filed a 
petition for review with the court. On June 22, 2007, the Service and 
the State of Wyoming reached a settlement agreement which required 
that, by October 31, 2007, we submit to the Federal Register for 
publication either (1) a withdrawal of our 2005 proposed delisting 
regulation; or (2) a new proposed regulation considering the Prebles' 
taxonomy and the subspecies' threatened status in light of all current 
distribution, abundance, and trends data (State of Wyoming v. U.S. 
Department of the Interior, No. 07CV025J (District of Wyoming 2007)). 
On November 7, 2007, we published a revised proposed rule to amend the 
listing of the Prebles to specify over what portion of its range the 
subspecies is threatened and opened a 75-day public comment period (72 
FR 62992). Under the settlement agreement with the State of Wyoming, 
the Service agreed to submit a final determination on the revised 
proposed rule to the Federal Register no later than June 30, 2008.

Public Comments Solicited

    Comments on this rulemaking were accepted from February 2 to May 3, 
2005 (70 FR 5404, February 2, 2005), from February 17 to April 18, 2006 
(71 FR 8556, February 17, 2006; 71 FR 16090, March 30, 2006), and from 
November 7, 2007 to January 22, 2008 (72 FR 62992, November 7, 2007). 
Open houses and public hearings were held on December 10, 2007, in 
Lakewood, Colorado, and on December 12, 2007, in Wheatland Wyoming (72 
FR 62992, November 7, 2007). These opportunities to comment were 
publicized via the Federal Register, press releases, public notices in 
area newspapers, postings on our Web site, and direct contact with 
Federal and State agencies, county governments, scientific 
organizations, and other interested parties. In addition, the media 
provided substantial coverage of the proposals. Comments could be hand 
delivered to us, submitted to us via e-mail, mail, the Federal e-
Rulemaking Portal, fax, or provided during public hearing testimony.
    Comments were submitted by a variety of parties including the 
general public, business interests, environmental organizations, and 
Federal, State, and local governments. We received 122 written, faxed, 
or e-mailed comments during public comment periods (excluding peer 
reviewers' comments discussed below). An additional eight comments were 
provided during two public hearings. On March 24, 2006, the Service 
received a Data Quality Act challenge on behalf of Coloradans for Water 
Conservation and Development and the Colorado Farm Bureau. While this 
challenge was handled separately from this rulemaking, all of the 
relevant issues raised also were considered public comments and 
considered in this final determination. All of the public comments 
available prior to the July 2006 SEI panel were made available to the 
panelists.

Peer Review

    In accordance with our Interagency Policy for Peer Review in Act 
Activities (59 FR 34270, July 1, 1994) and the Office of Management and 
Budget's (OMB) Final Information Quality Bulletin for Peer Review (70 
FR 2664, January 14, 2005), we sought the expert opinions of 
appropriate and independent specialists regarding this rulemaking. 
First, we contacted five reviewers with expertise in genetics, 
systematics, and small mammals to review the taxonomic portions of this 
document. Four of those solicited provided comments during one or more 
of the comment periods (Gore 2008; Hoekstra 2005; Kelt 2005, 2006, 
2008; Spencer 2005, 2006a, 2008). All of the peer reviews submitted 
prior to the July 2006 SEI panel meeting were made available to the 
expert panelists (Hoekstra 2005; Kelt 2005, 2006; Spencer 2005, 2006a). 
Second, we contacted an additional five reviewers with expertise in 
small-mammal biology, riparian-community ecology and status, population 
dynamics and extinction risk, and/or development trends and land-use 
conflicts to review the remainder of the 2007 revised proposal. All 
five of these reviewers provided comments (Anderson 2008; Beauvais 
2008; Buskirk 2008; Nupp 2008; Travis 2008).
    Given the information now available, all of the experts who 
commented on taxonomic portion of the rule were supportive of our 
discussion, analysis, and/or conclusions. No reviewers expressed 
significant concerns over our analysis of the Prebles' taxonomy.
    Reviews that focused on the remainder of the 2007 revised proposed 
rule were generally supportive of Service efforts, but provided 
criticism

[[Page 39792]]

and suggestions regarding various aspects of the revised proposed rule. 
Six reviewers provided comments on whether evidence we presented in the 
revised proposed rule sufficiently supported our removal of the Act's 
protections for the Wyoming populations. Three reviewers supported our 
proposal as being reasonable based on evidence presented. Two reviewers 
questioned the proposal based largely on adequacy of existing knowledge 
regarding Prebles' populations in Wyoming. One reviewer opposed the 
proposal, calling it weakly supported. Two reviewers suggested that the 
revised proposed rule should have made better use of geographic 
information systems (GIS) to depict and analyze trapping efforts, 
documented occurrence, appropriate habitat, and projected threats.
    Reviewer opinions also varied on use of the Wyoming--Colorado State 
line to delineate a significant portion of Prebles' range. While 
reviewers generally considered a division based on the North Platte 
River basin and the South Platte River basin more appropriate from an 
ecological or mouse population perspective, three concluded that the 
use of the State line was supported by the differing levels of threats 
described. Two reviewers called for more detailed analysis of threats 
as related to both sides of the State line. One reviewer discounted 
significant differences in threats across the State line. Three 
reviewers mentioned the administrative or practical convenience of 
using the State line.

Summary of Public Comments

    We reviewed all comments from peer reviewers and the public for 
substantive issues and new information regarding this rulemaking. 
Substantive comments received during the comment periods have been 
addressed below or incorporated directly into this final rule. Comments 
of a similar nature have been grouped together under subject headings 
in a series of issues and responses.

Technical and Editorial Comments

    Issue: Several technical and editorial comments were provided by 
respondents. In addition, peer reviewers and other commenters provided 
or suggested additional literature to consider in our final rule.
    Response: We corrected inaccuracies in the revised proposed rule 
wherever appropriate. We also edited portions of the text to make it 
clearer. We reviewed and incorporated relevant additional literature 
and information when appropriate. The list of literature cited in this 
rule will be posted online (https://www.fws.gov/mountain-prairie/
species/mammals/preble/).
    Defining a ``Listable Entity'' under section 4 of the Act.
    Issue: We received numerous comments on taxonomic data quality and 
quantity. Many questioned the amount of data necessary to make such 
taxonomic determinations. Some commenters questioned the basis for the 
initial listing of the subspecies. Other commenters discussed whether 
the available data relied upon in our 2005 proposed rule was sufficient 
or insufficient. Some commenters suggested we should employ the 
precautionary principle when making a call on delisting. Other 
commenters questioned our apparent reliance upon the peer reviewer 
``majority vote'' as a justification for our 2005 proposed delisting. 
Still other commenters noted or questioned evidence of political 
interference in this rulemaking process.
    Response: The Act requires that we base our determinations upon the 
best scientific and commercial information available. As a result, we 
evaluate all of the available information, its adequacy and 
reliability, and determine what the weight of evidence suggests. This 
final rule meets this standard. These issues and the available data are 
discussed below in the sections titled: Taxonomy; Other Taxonomic 
Information Available Prior to Listing; Taxonomic Information Solicited 
After Listing; and Taxonomic Conclusions.
    Issue: Many questioned the standards used to test what is a valid 
subspecies. Some commenters suggested philosophical differences played 
a role in shaping the hypothesis of each researcher and what each 
researcher considered a valid subspecies. Other commenters suggested 
that the Service is inconsistent in applying subspecies standards in 
its section 4 determinations. Some commenters noted that there are no 
quantitative standards in use by the scientific community or the 
Service with which to objectively describe subspecies. Some commenters 
suggested that acceptance by the scientific community is often nothing 
more than opinion.
    Response: As defined by the Act, a species includes any subspecies 
of fish or wildlife or plant, and any distinct population segment (DPS) 
of any species of vertebrate fish or wildlife which interbreeds when 
mature. The Act does not further define subspecies. Service regulations 
(50 CFR 424.11) state that ``In determining whether a particular taxon 
or population is a species for the purposes of the Act, the Secretary 
shall rely on standard taxonomic distinctions and the biological 
expertise of the Department and the scientific community concerning the 
relevant taxonomic group.'' This regulatory standard is consistent with 
the Act's requirement that we make such determinations solely on the 
basis of the best scientific and commercial data available. The Service 
consistently applies this standard.
    In this case, we determine that the best scientific and commercial 
data available support the conclusion that the Prebles is a valid 
subspecies. While philosophical differences among researchers may play 
a role in what a particular researcher considers a biologically 
meaningful difference, we conclude that the weight of evidence supports 
the Prebles as a valid subspecies.
    Specifically, the Prebles' geographic isolation from other 
subspecies of meadow jumping mice (Krutzsch 1954, pp. 452-453; Long 
1965, pp. 664-665; Beauvais 2001, p. 6; Beauvais 2004; SEI 2006a, p. 
34) has resulted in the accretion of considerable genetic 
differentiation (King et al. 2006b, pp. 4336-4348; SEI 2006a, pp. 41-
43). The available data suggest that the Prebles meets or exceeds 
numerous, widely accepted subspecies definitions (Mayr and Ashlock 
1991, pp. 43-45; Patten and Unitt 2002, pp. 26-34; SEI 2006a, p. 44).
    In terms of quantitative standards, the 75 percent rule (Amadon 
1949; Patten and Unitt 2002) is one of the only widely employed 
quantitative subspecies definitions (Haig et al. 2006, pp. 1584-1594). 
This definition suggests a subspecies is valid if 75 percent or more of 
a population is separable from all (or > 99 percent of) members of the 
overlapping population. As noted by SEI (2006a, p. 44), the Prebles 
exceeds this quantitative standard.
    Issue: We received numerous comments regarding the status of the 
Prebles relative to the requirements of the Interagency Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments 
Under the ESA (DPS policy) (61 FR 4722, February 7, 1996) including the 
suggestion that the Prebles should or could be split into multiple DPSs 
based on significant genetic differences observed between populations 
north and south of Denver (Ramey et al. 2005, pp. 334-341; King et al. 
2006a, pp. 28-29).
    Response: The available data supports the taxonomic status of the 
Prebles as a valid subspecies making most comments about potential 
application of the DPS policy moot. We do not believe splitting the 
subspecies into multiple DPSs would be prudent or beneficial

[[Page 39793]]

from a conservation perspective. In this case, we do not foresee any 
significant benefit to recovering multiple DPSs instead of a single 
listed entity.
    Issue: Some commenters suggested that the Service's revised 
proposed rule (72 FR 62992, November 7, 2007) displayed bias in our 
presentation of the available information. Specifically, some 
commenters suggested we highlighted flaws in reports questioning the 
taxonomic validity of the Prebles, while not offering similar critiques 
of information supporting the subspecies' taxonomic validity.
    Response: To the maximum extent possible, we attempted to 
objectively portray the available information regardless of the 
position it articulated. All information was held to a similar level of 
critical review. However, we have reviewed the final rule relative to 
the specific objections and made minor revisions where appropriate.
    Ramey et al. and King et al.
    Issue: Some commenters suggested the Ramey et al. (2003, 2004a, 
2004b, 2005) studies exhibited bias. Some commenters questioned whether 
the studies could be relied upon because the studies were largely 
funded by the State of Wyoming, one of the petitioners. Other 
commenters noted that the conclusions strayed beyond genetics and 
taxonomy into policy considerations.
    Response: Ramey et al. (2004a, 2004b, 2005) were subjected to 
extensive peer and public review, were reviewed and approved by a peer-
reviewed journal, and were reviewed by the SEI expert panel. All of 
this information has been taken into consideration in this final 
determination.
    Issue: Some commenters suggested the King et al. (2006a, 2006b) 
studies exhibited bias. It was suggested that Dr. King has a history of 
designating unwarranted or questionable subspecies. Some commenters 
questioned Dr. King's qualifications. Other commenters suggested that 
USGS was inherently biased because the Service and USGS are sister 
agencies under the Department of the Interior.
    Response: King et al. (2006a, 2006b) were the subject of extensive 
peer review and public review, were reviewed and approved by a peer-
reviewed journal, and were reviewed by the SEI expert panel. All of 
this information has been taken into consideration in this final 
determination.
    We believe the USGS research team was well qualified to conduct the 
analysis. For example, their previous work concerning Atlantic salmon 
(Salmo salar) was upheld by a National Research Council (2002b, p. 4) 
review. This validation provided us with confidence that these 
researchers' expertise could meet our scientific needs. We do not 
believe that USGS' research conclusions were biased by the fact that it 
is a sister agency to the Service.
    Issue: Some commenters questioned the critiques raised by peer 
reviewers and the scientific community. Rebuttals were offered for each 
criticism of Ramey et al. (2005) listed in the proposed rule. It was 
suggested that we failed to explain that many of these issues were 
relevant to the draft they evaluated (Ramey et al. 2004a, 2004b), but 
resolved in the publication (Ramey et al. 2005). Finally, it was 
suggested that many of these same issues plague the King et al. (2006b) 
report.
    Response: We have revised this section (see the Taxonomic 
Information Solicited After Listing section below) so as to clearly 
explain that many of the issues raised by peer reviewers of Ramey et 
al. (2004a, 2004b) were rectified in the 2005 publication (Ramey et al. 
2005). Each of these critiques was carefully considered. All of the 
issues remaining in this section of this final rule continue to remain 
relevant and may have contributed, at least in part, to the conclusions 
of Ramey et al. (2005).
    For example, while the comment defended the use of museum 
specimens, we remain concerned that Ramey et al.'s (2004a, 2004b, 2005) 
reliance upon museum specimens may have contributed to contamination of 
numerous key samples. As noted by Douglas (2004), the quality of DNA 
extracted from museum specimens is often inferior, fragmented, and low 
quantity. As a result, amplification can be difficult and cross-
contamination with other high-quality DNA can occur. Ramey et al. 
(2004a, p. 6) confirmed ``some DNA extracts, most notably those of 
older museum specimens (prior to 1980), did not amplify well or at 
all.'' King et al. (2006b, pp. 4355-4357) demonstrated that numerous 
key DNA sequences were not repeatable. Most importantly, SEI (2006a, 
pp. 21-30) confirmed evidence of contamination of key Ramey et al. 
samples after reviewing the original supporting data. While other 
explanations are possible (King et al. 2006, p. 4345; Ramey et al. 
2007, p. 3519), we have concluded that the Ramey et al. (2005) data 
demonstrates sufficient evidence of contamination to warrant inclusion 
on this list of concerns.
    Similarly, results can be meaningfully altered if a museum 
specimen's tag (marking locality and subspecies) is incorrect. This 
appears to be the case with museum specimens KU115895, KU115896, and 
KU115897 (Anderson & Jones 1971 as cited in King et al. 2006b, p. 
4357). That said, museum specimens remain a valuable resource in 
providing specimens from a large geographic area and often allow a 
study to be executed in relatively short time. As recommended by the 
literature, proper precautions are required (Cooper and Poinar 2000).
    Most of the other critiques of Ramey et al. centered on study 
design and the thoroughness of the evaluation. We continue to list 
these issues because each of these factors may have influenced the 
study's results and conclusions. We also have tried to clarify when a 
similar issue may have influenced the results and conclusions of King 
et al. The relative importance of many of these issues is discussed in 
the SEI report (SEI 2006, pp. 20-43).
    Issue: Numerous commenters suggested that the sampling regime was a 
critical difference between the two studies (Ramey et al. 2004a, 2004b, 
2005; King et al. 2006a, 2006b). Several commenters suggested that 
Crandall and Marshall (2006) represented the best scientific and 
commercial information available in that their report combined the 
Ramey et al. (2005) and King et al. (2006a) data into a single, 
comprehensive analysis.
    Response: We think that an ideal sampling strategy, with unlimited 
resources, would sample many individuals from many populations across 
the range of all 12 recognized meadow jumping mouse subspecies. 
Instead, Ramey et al. sampled a few individuals from many sites, while 
King et al. sampled many individuals from a few sites. Each approach 
has its strengths and weaknesses.
    The Ramey et al. approach likely captures variation across the 
range of the subspecies (Ramey et al. 2005, p. 332), but may 
underestimate the level of within-population variation, inflate within-
subspecies variance, and potentially lower the between-subspecies 
differentiation (King et al. 2006b, p. 4346). The King et al. 
population-oriented approach likely denotes the diversity within a 
population (King et al. 2006b, p. 4346), but may not capture variance 
along past or present contact zones between the subspecies (SEI 2006a, 
pp. 31-43) and may predispose the results to an exaggeration of genetic 
distances among subspecies (Ramey et al. 2007, p. 3519). We considered 
each of these potential sources of bias in our evaluation of the 
available data. Overall, we concluded that sampling played only a minor 
role

[[Page 39794]]

in shaping differences between the two studies. Instead, we believe 
apparent contamination among a number of key samples was likely the 
primary reason the Ramey et al. (2005) and King et al. (2006b) mtDNA 
data differed. While Crandall and Marshall (2006) employed a hybrid 
approach reevaluating both the Ramey et al. and King et al. mtDNA 
sequences, this unpublished study has a number of important weaknesses 
(see Spencer 2006b) including the inclusion of these same questionable 
samples. As Crandall and Marshall (2006, p. 5) put it, ``much is 
dependent on these few samples.'' We have concluded that inclusion of 
these apparently contaminated samples makes the mtDNA results and 
conclusions of Ramey et al. (2005) and Crandall and Marshall (2006) 
unreliable.
    Issue: Several commenters suggested that even if the apparently 
contaminated samples are removed from the analysis, the data still 
supports the conclusions of Ramey et al. (2005).
    Response: No data or analysis were presented to support the 
assertion that Ramey et al.'s key conclusions would not differ if the 
suspect samples were removed. Ramey et al. (2007, p. 3520) state that 
``With the samples in question excluded, analysis of molecular variance 
results just exceed our threshold, but the Prebles is still not even 
close to being reciprocally monophyletic.'' This suggests the mtDNA 
results would satisfy Ramey et al.'s (2005, p. 332) a priori mtDNA 
hypothesis for a valid subspecies where there was greater molecular 
variance among than within subspecies. Overall, we feel the available 
data is compelling in its support of the validity of this taxon.
    Issue: A few commenters suggested that Ramey et al. set up 
subspecies standards in advance of data collection, while King et al. 
relied upon post-hoc interpretations of the data.
    Response: Our evaluation of Ramey et al. (2003, p. 4; 2004a, p. 4; 
2005, pp. 331-334), USGS (2005, p. 3) and King et al. (2006a, p. 5; 
2006b, p. 4332) revealed that both research teams developed their 
hypotheses in advance of data collection which they consistently 
applied throughout the process.
    Issue: A few commenters questioned whether hybridization between 
the Prebles and the western jumping mouse could have impacted each 
study's results.
    Response: Genetic distance between the Prebles and the western 
jumping mouse is significant (King et al. 2006b, p. 4341), and the 
available genetic studies experienced no difficulty differentiating 
between the two species (Riggs et al. 1997, pp. 6-11; Ramey et al. 
2005, p. 332; King et al. 2006b, p. 4341). Wunder and Harrington (1996, 
section 6.0) also ruled out hybridization based on a small sampling of 
random amplification of polymorphic DNA (RAPD) (an amplification of 
random segments of DNA with single primer of arbitrary nucleotide 
sequence). Based upon the best scientific and commercial information 
available, we do not believe hybridization is occurring between these 
two distinct species.
    Issue: Several commenters suggested King et al. examined too much 
data. Specifically, it was suggested that the statistically significant 
differences observed by King et al. were the result of the large number 
of microsatellite loci (the specific position of a gene or other 
chromosomal marker) examined and not reflective of any meaningful 
biological difference.
    Response: We find no support for the position that significant 
differences detected by King et al. were an artifact of an excessively 
large sample size. The Ramey et al. and King et al. microsatellite 
results do not appear dependent upon the number of loci examined (5 and 
21 loci, respectively) as both data sets support a statistically 
significant independent cluster that corresponds to the Prebles 
(Crandall and Marshall 2006, pp. 26-27; SEI 2006a, p. 43). This, in 
combination with other available data, supports continued recognition 
of the subspecies as a valid taxon.

Information Quality and Peer Review for Taxonomy

    Issue: Numerous commenters suggested we should not rely upon 
unpublished literature that has not been subjected to a scientific 
journal's peer review process. They felt that using Ramey et al. or 
King et al. violated the Data Quality Act (44 U.S.C. 3516 et seq.) and 
Service policy. Several commenters thought we should reopen the comment 
period once these documents were accepted for publication or published.
    Response: The Act requires that our actions be based upon the best 
scientific and commercial information available. Occasionally, relevant 
scientific and commercial information is not, or has not yet been, 
published. In these cases, peer review may assist us in our evaluation 
of the available science. At this point, most of the key literature 
relevant to the subspecies' taxonomy has been subjected to extensive 
peer review, reviewed and published by peer-reviewed journals, and 
reviewed by the SEI expert panel. Additionally, the public has had an 
opportunity to review and comment on all of the relevant literature (70 
FR 5404, February 2, 2005; 71 FR 8556, February 17, 2006; 71 FR 16090, 
March 30, 2006; 72 FR 62992, November 7, 2007). Finally, we have 
conducted numerous peer reviews of our regulatory proposals (70 FR 
5404, February 2, 2005; 71 FR 8556, February 17, 2006; 71 FR 16090, 
March 30, 2006; 72 FR 62992, November 7, 2007) in compliance with the 
Interagency Cooperative Policy for Peer Review in Act Activities (59 FR 
34270, July 1, 1994) and the Office of Management and Budget's ``Final 
Information Quality Bulletin for Peer Review'' (Office of Management 
and Budget 2004). We have evaluated all of the available information, 
its adequacy and reliability, and determined what the weight of 
evidence suggests. Given the above, we feel we have exceeded all 
Federal requirements for information quality and peer review.
    Issue: Several commenters questioned the independence, 
impartiality, political motivation, and appropriate expertise of select 
local peer reviewers. Some commenters questioned the independence and 
impartiality of the Colorado Division of Wildlife (CDOW) in soliciting 
these peer reviews.
    Response: The CDOW solicited and received nine peer reviews of 
Ramey et al. (2004a) from regional scientists with a variety of 
expertise relevant to the questions at hand. These reviews were 
transmitted to us on April 24, 2004. We believe that the CDOW acted 
independently and impartially in selecting qualified reviewers of the 
subject study. During the summer of 2004, we solicited reviews from 
seven additional scientists selected for expertise in genetics and 
systematics. Reviewers were targeted from a wide variety of areas to 
geographically balance the CDOW review. Collectively, this diverse 
group of experts provided a balanced and objective review. To maintain 
consistency, we later contacted the same 16 experts to peer review 
Ramey et al. (2004b) and King et al. (2006a). It should be noted that 
some reviewers declined to participate in subsequent rounds of review 
(Ramey et al. 2004b; King et al. 2006a) because of these accusations of 
bias.
    Issue: Some commenters questioned why the Service asked non-
geneticists to review King et al. (2006a).
    Response: As noted above, we solicited peer reviews of King et al. 
(2006a) from the same 16 reviewers asked to review Ramey et al. (2004a, 
2004b). While we recognized this group included some non-geneticists, 
we felt consistency among reviewers was critical. We note that most of 
the non-

[[Page 39795]]

geneticists voluntarily declined to participate in the review of King 
et al. (2006a). The one exception, Armstrong (2006), is a respected 
academic with considerable expertise on the Prebles. His review was 
useful.

Expert Panel

    Issue: Several commenters questioned the Service's decision to 
organize a scientific panel to review the available information on the 
species' taxonomic and conservation status.
    Response: Recognizing the controversial nature of this 
determination, the Service decided not to organize and convene an 
expert panel ourselves. Instead, we contracted with an independent 
organization to assemble and manage the scientific review panel.
    Issue: Numerous parties had issue with the SEI expert panel. Some 
commenters opined that the SEI panel was tainted because the 
composition of the panel and the time allotted to participants was 
altered to favor a particular outcome. Some commenters questioned the 
objectivity and qualifications of SEI and the panelists.
    Response: We stand by the process used in the SEI review panel. 
Following an open and competitive bid process, SEI was selected as the 
contractor in June 2006. Once selected, SEI ran all aspects of this 
process within the bounds of the contract. The selection and retention 
of panelists as well as the agenda was entirely within SEI's purview. 
SEI also determined that the public could attend. In addition, Drs. 
Ramey, Crandall, and King addressed the panel in person. Other 
scientists participated over the phone. Questions from the audience 
were also presented for the panel's consideration. The panel also had 
access to published literature, unpublished reports, third-party 
critiques, public comments, and other materials suggested by interested 
parties (SEI 2006a, pp. 48-55). Overall, we think that the process was 
fair, open, and unbiased.
    Furthermore, we believe SEI and the panelists were well qualified 
to conduct the contracted review. SEI regularly conducts such 
scientific reviews including panels on northern spotted owl, pallid 
sturgeon, and Everglades restoration (see: https://www.sei.org/). The 
panelists' qualifications are well established. As illustrated in 
appendix 1 of the SEI (2006a, pp. 56-82) report, each panelist has an 
extensive background in the genetic and systematic issues relevant to 
the Prebles' review.
    Issue: Some commenters suggested that the SEI report went beyond 
the original scope of their contract. Specifically, commenters 
suggested the SEI report should have abstained from offering reviewers' 
taxonomic conclusions.
    Response: We contracted with SEI to analyze, assess, and weigh the 
reasons why the data, findings, and conclusions of the two studies 
differed (USFWS 2006, p. 14). Incorporation of the panelists' taxonomic 
conclusions was a natural outgrowth of the contract's stated purpose. 
The final report fully satisfied SEI's contractual obligations.

Availability of Taxonomic Information

    Issue: Several commenters raised a concern that we relied on a 
paper (King et al. in review) for this rulemaking that we did not 
possess and thus was not available for public review during the comment 
period. Since this report was not available, some commenters requested 
an extension of the comment period.
    Response: The revised proposed rule referenced a document by USGS 
cited as ``King et al. (in review).'' This article was not the primary 
jumping mouse study by King et al. The primary study and its supporting 
data were released to the public in early 2006 (King et al. 2006a; 71 
FR 8556, February 17, 2006; 71 FR 16090, March 30, 2006) and published 
in Molecular Ecology in late 2006 (King et al. 2006b).
    Instead, King et al. (in review) was a comment article that 
Molecular Ecology intended to publish in the News and Views section of 
the journal, in response to Ramey et al. (2007) (another comment 
article). These comment articles were cited once in the revised 
proposed rule in a sentence that read: ``Other evaluations of the 
available literature and data include Ramey et al. (in press), King et 
al. (in review), Crandall and Marshall (2006), Spencer (2006b), and 
Cronin (2007).'' This sentence cited King et al. (in review), among 
other documents, to inform the public we were aware of its existence. 
However, our determination that the Prebles is a valid subspecies did 
not use or rely on this document.
    The comment was correct that we did not have this document in our 
files. By citing the document as ``in review,'' we intended to convey 
that the document had been drafted and submitted for publication, but 
not yet accepted as it was still undergoing peer review. The USGS 
typically does not release documents unless they have been accepted for 
publication or otherwise peer reviewed. As the peer review process for 
this document remains incomplete, the article is solely in the 
possession of USGS and the reviewing journal.
    Given the context of this citation and its inconsequentiality to 
our determination, we do not think that this document was critical to 
the public's review or understanding of our proposal. Therefore, we did 
not grant an extension of the comment period.

Distribution, Status, Population Size, and Population Trends

    Issue: Some commenters contended that our 2005, 12-month finding 
and proposed rule should have evaluated the distribution, abundance, 
trends, and threats information from the delisting petitions.
    Response: On February 2, 2005, we issued a 12-month finding on a 
petition to delist the Prebles and proposed to remove the mouse from 
the Federal list of endangered and threatened species (70 FR 5404, 
February 2, 2005). The basis for the proposed action was that the 
Prebles was ``likely not a valid subspecies of meadow jumping mouse.'' 
It was not necessary or appropriate to consider distribution, 
abundance, trends, or threats until it was determined that the Prebles 
qualified as a listable entity under the Act. Once we determined that 
the Prebles was a valid subspecies, we considered all relevant 
information on Prebles' distribution, abundance, trends, and threats in 
our revised proposed rule (72 FR 62992, November 7, 2007) and in this 
final rule.
    Issue: Some commenters suggested that Figure 1 could have been more 
clear or more informative. Specific suggestions put forth were to: 
Include more detail; depict all jumping mouse captures noting the 
species; and provide a better explanation of the data depicted in the 
key and text. One reviewer commented that the database from which 
Figure 1 was derived should be available to the public.
    Response: Figure 1 was too busy and difficult to read in the 
Federal Register. As a result, we have split this graphic 
representation of occupancy into a Wyoming (Figure 1) and a Colorado 
figure (Figure 2). We also revised the corresponding text. This final 
rule more clearly depicts known Prebles' distribution and results of 
other trapping efforts. The supporting data (Service 2008) is available 
upon request.
    Issue: Reviewers commented that distribution of available habitat 
and threats to the Prebles could be mapped, quantified, and better 
visualized through use of GIS. One reviewer suggested that we clearly 
map all threats or confirm that project constraints make these measures 
impractical.

[[Page 39796]]

    Response: The Service has mapped potential Prebles' habitat (67 FR 
47154, July 17, 2002; 68 FR 37276, June 23, 2003), as has the Wyoming 
Natural Diversity Database (WNDD) (Beauvais 2001, 2004), the CDOW, and 
some Colorado counties. The Center for the West produced a series of 
GIS maps predicting growth through 2040 for the west including the 
Colorado Front Range and Wyoming (Travis et al. 2005, pp. 2-7). These 
models represent a good approximation of projected development 
pressures. We also worked with the CDOW to examine protection status of 
designated critical habitat units and other selected areas supporting 
the Prebles. These results are summarized in the 5-factor analysis 
below.
    Issue: We received numerous comments on data quality and quantity 
relative to the subspecies' status. Many noted limited available 
information or data on historical and current range, current abundance, 
population trends, threats, and ecological relationships. Some 
commenters suggested this illustrated the weakness of our original 
listing and, therefore, suggested we should delist range-wide. Other 
commenters suggested a change in listing status in any portion of the 
subspecies' range should be precluded until better data is available.
    Response: The Act requires our determinations be based upon the 
best scientific and commercial information available. As a result, we 
evaluate all of the available information, its adequacy and 
reliability, and determine what the weight of evidence suggests. This 
final rule meets this standard.
    Issue: One reviewer suggested that we quantify relative abundance 
of the Prebles and compare abundance estimates to habitat features to 
better define quality habitat. This reviewer thought we could estimate 
relative abundance by calculating and comparing Prebles captured per 
trap night (number of traps employed times number of nights of 
trapping) for all trapping efforts throughout Prebles' range.
    Response: Where we have abundance information, we present it in 
this final rule. Data available is not adequate to quantify and compare 
the relative abundance of the Prebles across its range with any 
reasonable degree of confidence (i.e., much of the trapping was on 
small sites and over short periods with inconsistent timing and 
conditions).
    Issue: One commenter claimed our analysis is flawed because the 
Prebles cannot be differentiated from the western jumping mouse.
    Response: Genetic markers are effective in differentiating meadow 
jumping mice and western jumping mice (Riggs et al. 1997, pp. 2-8; 
Ramey et al. 2005, pp. 344-346; King et al. 2006b, pp. 4341, 4344). 
Additionally, Discriminant Function Analysis (DFA) (analysis of cranial 
measurements and an anterior medial toothfold characteristic) appears 
to be a reliable technique for differentiating the two species (Conner 
and Shenk 2003a). We acknowledge that, for a number of historical and 
recent capture sites, mice were tentatively identified in the field 
based on capture location, size, and external features, but definitive 
identification to species was never attempted. In many of these cases, 
genetic samples were not obtained nor were voucher specimens taken; 
therefore, the specimen's species identity remains inconclusive. As 
noted below, positive identification to species is only an issue in 
areas of overlapping range (i.e., high-elevation sites in Colorado and 
most of Wyoming). We have addressed potential shortcomings for species 
identification in our analysis, and we have reviewed and modified the 
text for added clarity.
    Issue: Several commenters noted that Prebles are now known from 
more drainages and a greater number of sites than at the time of 
listing. These commenters suggested this was evidence that Prebles' 
populations are secure. One commenter requested that we state the 
specific number of sites where the Prebles is known to occur.
    Response: We have acknowledged an increase in our knowledge of 
distribution of Prebles, especially in the Wyoming portion of its 
range. We have summarized areas of known or potential occurrence by 
river basin, drainage (8-digit USGS hydrologic units), and river or 
stream. We also have emphasized instances where confirmed captures have 
extended our knowledge of Prebles' range and occurrence. We think that 
the number of individual capture sites is less meaningful. 
Documentation of multiple capture sites within portions of drainages or 
along streams where Prebles' populations occur is largely a function of 
trapping effort. When multiple sites are within close proximity of each 
other, counting each occurrence instead of a single population 
exaggerates abundance. Further, as one peer reviewer correctly 
cautioned, trends cannot be established from the number of documented 
sites alone, and that an increase in documented sites resulting from 
increased trapping efforts could mask a decreasing population trend.
    Issue: One commenter stated that the Prebles' range has not 
declined significantly. This commenter suggested the subspecies is now 
known to be present in virtually all historically documented locations 
except those in the greater Denver area.
    Response: The subspecies' declines within Colorado are fully 
explained in Factor A below. This analysis includes the apparent 
extirpation of the subspecies from approximately 420 km (260 mi) in and 
downstream of areas with concentrated human development. In terms of 
historically documented locations (i.e., sites from which we have 
specimens prior to 1980), we are aware of 17 such sites in Colorado. Of 
these, only one of these sites is currently thought to support the 
Prebles. The majority of historical records of Prebles in Colorado come 
from what is now widely known as the Front Range urban corridor, which 
extends well beyond the Denver area. In Wyoming, with the possible 
exception of Cheyenne, the Prebles is likely present at the few sites 
where it was historically documented.
    Issue: One commenter concluded that the high number of section 7 
consultations conducted in Colorado as compared to Wyoming was evidence 
of ``expansive range and increasing populations'' in Colorado.
    Response: A more reasonable explanation for the number of section 7 
consultations is that human development is expanding into areas of 
Prebles' occurrence. In Wyoming, far less development is occurring in 
areas where the Prebles is present.
    Issue: Some commenters questioned how we established that over 80 
percent of trapping efforts in Colorado since listing have failed to 
capture Prebles. They questioned whether western jumping mice were 
included in the results and questioned the expertise of the trappers 
conducting the studies. Some commenters requested comparative trapping 
success rates from Wyoming trapping.
    Response: From 1998 to 2007, 27 percent of 1,350 data points 
associated with trapping efforts targeting Prebles in Colorado have 
resulted in captures of jumping mice (USFWS 2008). When we controlled 
for repeated trapping at single sites, such as established research 
sites, jumping mouse capture rates drop to less than 20 percent. Even 
this estimate may be high as some of these jumping mice were likely 
western jumping mice, particularly those from high-elevation trapping 
efforts.
    From 1998 to 2007, 74 percent of 219 data points associated with 
trapping efforts in Wyoming have resulted in captures of jumping mice 
(USFWS

[[Page 39797]]

2008). The overlapping range of Prebles and western jumping mouse in 
Wyoming must be considered when comparing Preble's capture success 
between the two States. Based on individual mice confirmed to species, 
it is likely that more of the successful trapping efforts in Wyoming 
captured only western jumping mice. Of positive jumping mouse capture 
sites, 29 percent of the sites included only Prebles, 55 percent of the 
sites included only western jumping mice, 5 percent of the sites had 
both species present, and specimens from 11 percent of the successful 
sites were never positively identified to species.
    All jumping mouse trapping efforts since listing have been carried 
out by researchers holding Service and State permits. While experience 
of individual biologists may vary, we believe all individuals permitted 
to trap Prebles are qualified to conduct such surveys.

Foreseeable Future

    Issue: One commenter stated that foreseeable future as defined in 
the revised proposed rule was too short, citing climate change 
projections to 100 years and Service HCPs issued for 50 years.
    Response: The term foreseeable future is not defined by the Act or 
in the implementing regulations at 50 CFR part 424. Merriam-Webster's 
Law Dictionary (1996) defines ``foreseeable'' as such as that which 
reasonably can or should be anticipated such that a person of ordinary 
prudence would expect it to occur or exist under the circumstances 
(Merriam-Webster's Dictionary of Law 1996; Western Watershed Project v. 
Foss (D. Idaho 2005; CV 04-168-MHW). Determination of foreseeable 
future is typically based on the timeframe over which the best 
available scientific data allows us to reasonably assess the threats 
and the species' response to those threats, and is supported by 
species-specific factors, including the species' life history 
characteristics (e.g., generation time) and population dynamics. From a 
scientific perspective, it would be inappropriate to set foreseeable 
future timeframes so short that natural variability in the ecosystem of 
the species, short-term population dynamics, or the expression of life 
history traits of the species through generational-scale variation in 
reproductive success or recruitment cannot be accounted for in the 
longer-term examination of factors impacting the species. Typically, 
threats tend to operate through their effects on survival and 
productivity over multiple generations, with one to two generations 
being insufficient to separate natural variability from directional 
effects of threats. Whenever possible, we will determine the 
``foreseeable future'' based on a detailed assessment of threats and 
species-specific biological information.
    For the Prebles, we defined foreseeable future based upon a threat-
projection timeframe because future development intensity and patterns 
are likely to be the single greatest factor contributing to the 
subspecies' future conservation status. The foreseeable future for the 
Prebles, based on the currently available data, extends to 
approximately 2040. While it is likely human population growth and 
development projections could be extrapolated out into the more distant 
future, growth and development projections beyond this point are of 
increasingly lower value as uncertainty escalates. However, we agree 
that not all threat factors are necessarily foreseeable over the same 
time horizon and that for some threat factors a longer time horizon may 
be appropriate. Thus, this rule considers the range of climatic 
conditions predicted by the Intergovernmental Panel on Climate Change 
(IPCC) for the 21st century. While climate projections routinely go out 
past this 2040 time horizon (IPCC 2007, p. 7), climate change 
forecasts, like human development projections, become less certain as 
they are extended into the future (Hall 2008; Meyers 2008). The IPCC 
acknowledged this uncertainty in their most recent report when they 
stated that projections beyond the next two decades depend on specific 
emission scenarios (IPCC 2007, p. 7). The duration of section 10 
permits, issued in support of approved Habitat Conservation Plans, have 
no bearing on what is foreseeable for this subspecies.

Impacts From Increased Human Population and Development

    Issue: Some commenters stated that local extirpations of Prebles in 
the Front Range urban corridor cannot be used to speculate about future 
threats in other portions of its range. They suggested that development 
threats are localized and do not affect most Prebles' populations.
    Response: While threats do vary across the range of the subspecies, 
we believe that the rule adequately captures and presents the severity 
of the issue across all portions of the subspecies' range. The direct 
and indirect effects of human development have resulted in substantial 
habitat alteration across large parts of the Colorado range. While 
habitat alteration has been most severe in the expanding Front Range 
urban corridor, projected future human growth will substantially extend 
this area of impact. Additional threats exist outside of areas of 
intense human development. For example, linear projects such as roads 
and pipelines may impact multiple counties and can affect rural habitat 
as well as that in urbanizing areas, and potential impacts from 
overgrazing are more likely to affect Prebles' habitat in rural areas 
than in areas of high residential density.
    Issue: Some commenters suggested that population growth forecasts 
can be unreliable. They pointed to the current housing slump and 
suggest that population growth within the Prebles' range will be less 
than predicted. One commenter stated that the Center for the American 
West models' depiction of development patterns in the future have 
limited utility since they assume that all private land is technically 
buildable and available for development.
    Response: Any future predictions include a degree of uncertainty. 
That said, we consider projections and related models to be the best 
information available on this subject. Economic downturns, that are 
relatively short-lived, are unlikely to significantly alter long-term 
forecasts.
    The Center for the American West models (Travis et al. 2005, pp. 2-
7) predict development patterns on a sub-regional basis. The fate of 
individual parcels could be determined by a number of factors not 
addressed by the models, and the model developers have noted that the 
projections should not be applied to individual properties. We have 
cited these models in evaluating threats related to likely patterns of 
future human growth, not the presumed fate of individual properties. We 
have expanded our discussion of the models and their use in the text.
    Issue: One reviewer noted that while human development in Wyoming 
is likely to be far less than in Colorado, Wyoming does not ``lack'' 
development and much of it will be in rural areas. A few commenters 
addressed current and modeled future human population growth in Wyoming 
centered near Cheyenne. One reviewer questioned whether the absence of 
the Prebles in Cheyenne area was the result of development. Another 
reviewer concluded that projected growth in the Cheyenne area would not 
result in impacts to the Prebles because it would not overlap areas 
known to support the subspecies.
    Response: We acknowledge that human development is likely to occur 
in portions of Wyoming now supporting the Prebles. However, we believe 
that expansion of human presence and

[[Page 39798]]

related threats will be localized and relatively minor, and will not 
threaten the continued persistence of the Prebles in those areas.
    Known occurrence records suggest that the Prebles is not common or 
widely present in the South Platte River basin in Wyoming. The cause of 
this rarity is unknown. The continued existence of the Prebles in the 
Cheyenne area also is unknown. Sites of recent confirmation of the 
Prebles in the South Platte River basin of Wyoming have been well 
upstream from Cheyenne. Development could impact Prebles' populations 
in the Cheyenne area, should they exist. However, the long-term 
viability of populations in these drainages is more likely to depend on 
persistence in upstream portions of the drainages rather than the 
Cheyenne area.
    Issue: Some commenters predicted that secondary impacts associated 
with human development in Colorado would impact Prebles' habitat in 
southern Wyoming. Particular issues raised included vacation homes, 
human recreational activities, water resource development and storage, 
and aggregate mining.
    Response: As human populations in Colorado, particularly northern 
Colorado, continue to grow, secondary impacts may spill over into 
southeastern Wyoming. Regarding vacation homes, the Center for the West 
models of human population growth take into account urban, suburban, 
ex-urban, and rural development (https://www.centerwest.org/futures/
west/2040.html; https://www.centerwest.org/futures/archive/development/
development_wy.html). These projections suggest ex-urban development 
could link Cheyenne and Fort Collins by mid-century, but indicate 
little development in the documented range of the Prebles in Wyoming. 
While some development will undoubtedly occur, we do not have data to 
indicate meaningful impacts are likely anywhere in the Wyoming portion 
of the subspecies' range, except around Cheyenne where the subspecies 
has not been recently documented to occur.
    While increasing population may result in increased recreation, new 
water development, or additional aggregate mining, we are not aware of 
any specific proposals that would increase the effects of these types 
of activities on Prebles' populations. These issues are evaluated 
further in our 5-Factor analysis below.

Impacts From Agriculture

    Issue: Some commenters stated that grazing is not a significant 
threat, as evidenced by the special 4(d) rule allowing continued 
agricultural activities. One commenter stated that chronic violations 
of grazing regulations on public grazing lands impact Prebles' habitat. 
One commenter provided a Bureau of Land Management (BLM) (2004) report 
on public range in Wyoming, to demonstrate that range improvements have 
occurred over time. The report stated that range conditions have 
improved over time; efforts are under way to stop invasive weeds; and 
wildlife populations have increased.
    Response: Our special rule provides exemption from take 
prohibitions under section 9 of the Act for certain land uses including 
continued agriculture. While overgrazing can and does impact Prebles' 
habitat, and in some cases can be a threat, the 4(d) rule (66 FR 28125, 
May 22, 2001; 67 FR 61531, October 1, 2002; 69 FR 29101, May 20, 2004) 
was instituted to acknowledge that those ongoing agricultural 
operations maintaining habitat that supports the Prebles are an asset 
to conservation and recovery. Through this special rule, we anticipated 
increased opportunity to partner with agricultural interests toward 
conservation of the Prebles.
    While we are aware of instances where operators have violated 
provisions of their grazing permits, we have concluded that this is not 
a widespread threat within the Prebles' range. We solicited and 
received data and information on livestock grazing from the U.S. Forest 
Service (USFS) regarding three National Forests that support Prebles' 
populations. Allotment inspection records or monitoring reports were 
received from the Laramie Ranger District, Medicine Bow National Forest 
in Wyoming (Florich 2008); the Canyon Lakes Ranger District, Arapahoe 
National Forest (Hodges 2008); and the South Park Ranger District, Pike 
National Forest (Branch 2008). Whi