Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Change the Listing Status of the Canada Lynx, 76990-76994 [E8-30110]
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Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / Proposed Rules
List of Subjects in 36 CFR Part 4
National Parks.
For the reasons stated in the preamble
we propose to amend 36 CFR Part 4 as
follows:
PART 4—VEHICLES AND TRAFFIC
SAFETY
1. The authority for part 4 continues
to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q),
462(k); Sec. 7.96 also issued under D.C. Code
8–137 (1981) and D.C. Code 40–721 (1981).
2. Section 4.30 is revised to read as
follows:
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§ 4.30
Bicycles
(a) Park roads. The use of a bicycle is
permitted on park roads and in parking
areas that are otherwise open for motor
vehicle use by the general public.
(b) Existing trails. Except when
rulemaking publication in the Federal
Register is required by § 1.5(b) of this
Chapter, a hiking or horse trail that
currently exists on the ground and does
not require any construction or
significant modification to
accommodate bicycles may be
designated for bicycle use only if:
(1) The park has or will complete a
park planning document addressing
bicycle use on existing trails in the park;
and
(2) The park has completed either an
environmental assessment (EA) or an
environmental impact statement (EIS)
evaluating bicycle use. In addition to
the requirements otherwise applicable
to the preparation of an EA or EIS, the
park will publish a notice in the Federal
Register providing the public at least
thirty (30) days for review and comment
on an EA issued under this section; and
(3) A written determination is signed
by the superintendent stating that the
addition of bicycle use on existing
hiking or horse trails is consistent with
the protection of the park area’s natural,
scenic and aesthetic values, safety
considerations and management
objectives and will not disturb wildlife
or park resources. The park will publish
in the Federal Register a notice of the
determination and provide at least thirty
(30) days for public review and
comment before implementing that
decision for bicycle use.
(c) New Trails. Trails that do not exist
on the ground, and therefore would
require trail construction activities
(such as clearing brush, cutting trees,
excavation, or surface treatment), may
be developed and designated for bicycle
use only after:
(1) The park has completed the
requirements set forth in paragraphs
(b)(1) and (2) of this section; and
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(2)(i) For new trails located outside of
a park’s developed areas, as identified
in the relevant park plan, the park has
promulgated a special regulation
authorizing bicycle use; or
(ii) For new trails located within a
park’s developed areas, as identified in
the relevant park plan, the park has
completed the requirements set forth in
paragraph (b)(3) of this section.
(d) Administrative roads.
Administrative roads closed to motor
vehicle use by the public, but open to
motor vehicles use for administrative
purposes, may be designated for bicycle
use by the superintendent pursuant to
the criteria and procedures of §§ 1.5 and
1.7 of this chapter.
(e) Closures. A superintendent may
close any park roads, parking areas,
administrative roads, existing trails, or
new trails to bicycle use pursuant to the
criteria and procedures of §§ 1.5 and 1.7
of this chapter.
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Notice of 90-day petition
finding.
ensure that our review is
comprehensive, we are soliciting
feedback from the public regarding this
species.
DATES: To allow us adequate time to
conduct this review, we request that we
receive information on or before
February 17, 2009.
ADDRESSES: You may submit
information by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R6–
ES–2008–0088; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all information provided to us
at https://www.regulations.gov. This
generally means that we will post any
personal information you provide us
(see the Information Solicited section
below for more details).
ADDRESSES: This finding is available on
the Internet at https://
www.regulations.gov. Supporting
documentation we used in preparing
this finding is available for public
inspection, by appointment, during
normal business hours at the Montana
Ecological Services Field Office, 585
Shepard Way, Helena, MT 59601. Please
submit any new information, materials,
comments, or questions concerning this
finding to the above address.
FOR FURTHER INFORMATION CONTACT:
Mark Wilson, Field Supervisor,
Montana Ecological Services Field
Office (see ADDRESSES section),
telephone 406–449–5225. If you use a
telecommunications device for the deaf
(TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
We, the U.S. Fish and
Wildlife Service (Service), announce a
90-day finding on a petition to revise
the listing of the Canada lynx (Lynx
canadensis) as threatened under the
Endangered Species Act of 1973, as
amended (Act), to include New Mexico.
We find that the petition presents
substantial scientific or commercial
information indicating that changing the
listing status of the contiguous United
States Distinct Population Segment of
Canada lynx to include New Mexico
may be warranted. Therefore, with the
publication of this notice, we are
initiating a further review in response to
the petition, and we will issue a 12month finding to determine if the
petitioned action is warranted. To
Information Solicited
When we make a finding that a
petition presents substantial
information to indicate that listing a
species may be warranted, or in this
case, to revise the listing of a species,
we are required to promptly commence
further review. To ensure that the
review is complete and based on the
best available scientific and commercial
information, we are soliciting
information from the public, other
concerned governmental agencies,
Native American Tribes, the scientific
community, industry, or any other
interested parties concerning the status
of the lynx. We are seeking information
regarding the species’ historical and
current status and distribution, its
Dated: December 9, 2008.
Lyle Laverty,
Assistant Secretary, Fish and Wildlife and
Parks.
[FR Doc. E8–29892 Filed 12–17–08; 8:45 am]
BILLING CODE 4312–52–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS–R6–ES–2008–0122; MO 9221050083–
B2]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition To Change the Listing Status
of the Canada Lynx
SUMMARY:
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biology and ecology, and threats to the
species and its habitat.
Please note that submissions merely
stating support or opposition to the
action under consideration without
providing supporting information,
although noted, will not be considered
in making a determination, as section
4(b)(1)(A) of the Act directs that
determinations shall be made ‘‘solely on
the basis of the best scientific and
commercial data available.’’ At the
conclusion of the review, we will issue
the 12-month finding on the petition, as
provided in section 4(b)(3)(B) of the Act
(16 U.S.C. 1533(b)(3)(B)).
You may submit your information
concerning this 90-day finding by one of
the methods listed in the ADDRESSES
section. We will not accept comments
sent by e-mail or fax or to an address not
listed in the ADDRESSES section. Finally,
we may not consider comments that we
do not receive by the date specified in
the DATES section.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the Web site. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Information and materials we receive,
as well as supporting documentation we
used in preparing this 90-day finding,
will be available for public inspection
on https://www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Montana Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT).
Background
Section 4(b)(3)(A) of the Endangered
Species Act 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
must base this finding on information
contained in the petition and supporting
information readily available in our files
at the time of the petition review. To the
maximum extent practicable, we are to
make this finding within 90 days of our
receipt of the petition, and publish our
notice of this finding promptly in the
Federal Register.
Our standard for ‘‘substantial
information’’ in the Code of Federal
Regulations (CFR) regarding a 90-day
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petition finding 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)). If we
find that the petition presented
substantial information, we are required
to promptly commence a review of the
status of the species.
We received a petition from Forest
Guardians and six other organizations,
dated August 1, 2007, requesting that
we revise the listing status of the
contiguous United States Distinct
Population Segment of Canada lynx
(lynx) (Lynx canadensis) to include the
mountains of north-central New Mexico.
We acknowledged receipt of the petition
in a letter dated August 24, 2007. In that
letter we advised the petitioners that we
could not address their petition at that
time because existing court orders and
settlement agreements for other listing
actions required nearly all of our listing
funding. We also concluded that
emergency listing of the lynx in New
Mexico was not warranted.
We received a 60-day notice of intent
to sue from Forest Guardians on January
24, 2008, and on April 17, 2008, (the
newly-named) WildEarth Guardians et
al. filed a complaint against the Service
in the U.S. District Court in the District
of Columbia for failing to make a 90-day
finding on their August 1, 2007,
petition. We anticipate that completion
of this finding will moot the litigation
filed in the U.S. District Court.
In making this finding, we relied on
information provided by the petitioners,
as well as information readily available
in our files. We evaluated the
information in accordance with 50 CFR
424.14(b). Our process for making this
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 scientific
and commercial information’’ threshold.
Regulatory History
For more information on previous
Federal actions concerning the lynx,
refer to the final listing rule published
in the Federal Register on March 24,
2000 (65 FR 16052), and the
clarifications of findings published in
the Federal Register on July 3, 2003 (68
FR 40075), and January 10, 2007 (72 FR
1186). The final listing rule designated
lynx as threatened in the contiguous
United States as a Distinct Population
Segment (DPS), including the States of
Colorado, Idaho, Maine, Michigan,
Minnesota, Montana, New Hampshire,
New York, Oregon, Utah, Vermont,
Washington, Wisconsin, and Wyoming.
The 2003 clarification addressed listing
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status, issues related to the DPS
determinations, threats, and definitions
of resident populations and dispersers.
The 2007 clarification addressed
whether any significant portion of the
range of the lynx exists in the
contiguous United States.
The final rule designating critical
habitat for lynx published in the
Federal Register on November 9, 2006
(71 FR 66008). On July 20, 2007, the
Service announced that we would
review the November 9, 2006, final rule
after questions were raised about the
integrity of scientific information used
and whether the decision made was
consistent with the appropriate legal
standards. Based on our review of the
final critical habitat designation, we
determined that it was necessary to
revise critical habitat. On January 15,
2007, the U.S. District Court for the
District of Columbia issued an order
stating the Service’s deadline for a
proposed rule for revised critical habitat
was February 15, 2008, and for a final
rule for revised critical habitat was
February 15, 2009. We published a
proposed rule to revise critical habitat
for the lynx in the Federal Register on
February 28, 2008 (73 FR 10860).
The special rule developed under
section 4(d) of the Act (65 FR 16084,
March 24, 2000) defines section 9
prohibitions to lynx, as provided for
under 50 CFR 17.31. The special rule
applies general take prohibitions for
threatened wildlife to the wild
population of lynx in the contiguous
United States, and addresses captive
lynx, and Convention on International
Trade in Endangered Species (CITES)
export requirements.
Species Information
Canada lynx are medium-sized cats,
generally measuring 30 to 35 inches (75
to 90 centimeters) long and weighing 18
to 23 pounds (8 to 10.5 kilograms)
(Quinn and Parker 1987, Table 1). They
have large, well-furred feet and long legs
for traversing snow; tufts on the ears;
and short, black-tipped tails.
Lynx are highly specialized predators
of snowshoe hare (Lepus americanus)
(McCord and Cardoza 1982, p. 744;
Quinn and Parker 1987, pp. 684–685;
Aubry et al. 2000, pp. 375–378). Lynx
and snowshoe hares are strongly
associated with what is broadly
described as boreal forest (Bittner and
Rongstad 1982, p. 154; McCord and
Cardoza 1982, p. 743; Quinn and Parker
1987, p. 684; Agee 2000, p. 39; Aubry
et al. 2000, pp. 378–382; Hodges 2000a,
pp. 136–140 and 2000b, pp. 183–191;
McKelvey et al. 2000b, pp. 211–232).
The predominant vegetation of boreal
forest is conifer trees, primarily species
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of spruce (Picea spp.) and fir (Abies
spp.) (Elliot-Fisk 1988, pp. 34–35, 37–
42). In the contiguous United States, the
boreal forest types transition to
deciduous temperate forest in the
Northeast and Great Lakes and to
subalpine forest in the west (Agee 2000,
pp. 40–41). Lynx habitat can generally
be described as moist boreal forests that
have cold, snowy winters and a
snowshoe hare prey base (Quinn and
Parker 1987, p. 684–685; Agee 2000, pp.
39–47; Aubry et al. 2000, pp. 373–375;
Buskirk et al. 2000b, pp. 397–405;
Ruggiero et al. 2000, pp. 445–447). In
mountainous areas, the boreal forests
that lynx use are characterized by
scattered moist forest types with high
hare densities in a matrix of other
habitats (e.g., hardwoods, dry forest,
non-forest) with low hare densities. In
these areas, lynx incorporate the matrix
habitat (non-boreal forest habitat
elements) into their home ranges and
use it for traveling between patches of
boreal forest that support high hare
densities where most foraging occurs.
Snow conditions also determine the
distribution of lynx (Ruggiero et al.
2000, pp. 445–449). Lynx are
morphologically and physiologically
adapted for hunting snowshoe hares and
surviving in areas that have cold winters
with deep, fluffy snow for extended
periods. These adaptations provide lynx
a competitive advantage over potential
competitors, such as bobcats (Lynx
rufus) or coyotes (Canis latrans)
(McCord and Cardoza 1982, p. 748;
Buskirk et al. 2000a, pp. 86–95;
Ruediger et al. 2000, p. 1–11; Ruggiero
et al. 2000, pp. 445, 450). Bobcats and
coyotes have a higher foot load (more
weight per surface area of foot), which
causes them to sink into the snow more
than lynx. Therefore, bobcats and
coyotes cannot efficiently hunt in fluffy
or deep snow and are at a competitive
disadvantage to lynx. Long-term snow
conditions presumably limit the winter
distribution of potential lynx
competitors such as bobcats (McCord
and Cardoza 1982, p. 748) or coyotes.
Lynx Habitat Requirements
Because of the patchiness and
temporal nature of high-quality
snowshoe hare habitat, lynx populations
require large boreal forest landscapes to
ensure that sufficient high quality
snowshoe hare habitat is available and
to ensure that lynx may move freely
among patches of suitable habitat and
among subpopulations of lynx.
Populations that are composed of a
number of discrete subpopulations,
connected by dispersal, are called
metapopulations (McKelvey et al.
2000c, p. 25). Individual lynx maintain
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large home ranges (reported as generally
ranging between 12 to 83 miles 2 (31 to
216 kilometers 2)) (Koehler 1990, p. 847;
Aubry et al. 2000, pp. 382–386; Squires
and Laurion 2000, pp. 342–347; Squires
et al. 2004b, pp. 13–16, Table 6; Vashon
et al. 2005a, pp. 7–11). The size of lynx
home ranges varies depending on
abundance of prey, the animal’s gender
and age, the season, and the density of
lynx populations (Koehler 1990, p. 849;
Poole 1994, pp. 612–616; Slough and
Mowat 1996, pp. 951, 956; Aubry et al.
2000, pp. 382–386; Mowat et al. 2000,
pp. 276–280; Vashon et al. 2005a, pp. 9–
10). When densities of snowshoe hares
decline, for example, lynx enlarge their
home ranges to obtain sufficient
amounts of food to survive and
reproduce.
In the contiguous United States, the
boreal forest landscape is naturally
patchy and transitional because it is the
southern edge of the distributional range
of the boreal forest. This generally limits
snowshoe hare populations in the
contiguous United States from achieving
densities similar to those of the
expansive northern boreal forest in
Canada (Wolff 1980, pp. 123–128;
Buehler and Keith 1982, pp. 24, 28;
Koehler 1990, p. 849; Koehler and
Aubry 1994, p. 84). Additionally, the
presence of more snowshoe hare
predators and competitors at southern
latitudes may inhibit the potential for
high-density hare populations (Wolff
1980, p. 128). As a result, lynx generally
occur at relatively low densities in the
contiguous United States compared to
the high lynx densities that occur in the
northern boreal forest of Canada (Aubry
et al. 2000, pp. 375, 393–394) or the
densities of species such as the bobcat,
which is a habitat and prey generalist.
Lynx are highly mobile and generally
move long distances (greater than 60
miles (100 kilometers)) (Aubry et al.
2000, pp. 386–387; Mowat et al. 2000,
pp. 290–294). Lynx disperse primarily
when snowshoe hare populations
decline (Ward and Krebs 1985, pp.
2821–2823; O’Donoghue et al. 1997, pp.
156, 159; Poole 1997, pp. 499–503).
Subadult lynx disperse even when prey
is abundant (Poole 1997, pp. 502–503),
presumably to establish new home
ranges. Lynx also make exploratory
movements outside their home ranges
(Aubry et al. 2000, p. 386; Squires et al.
2001, pp. 18–26).
The boreal forest landscape is
naturally dynamic. Forest stands within
the landscape change as they undergo
succession after natural or humancaused disturbances such as fire, insect
epidemics, wind, ice, disease, and forest
management (Elliot-Fisk 1988, pp. 47–
48; Agee 2000, pp. 47–69). As a result,
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lynx habitat within the boreal forest
landscape is typically patchy because
the boreal forest contains stands of
differing ages and conditions, some of
which are suitable as lynx foraging or
denning habitat (or will become suitable
in the future due to forest succession)
and some of which serve as travel routes
for lynx moving between foraging and
denning habitat (McKelvey et al. 2000a,
pp. 427–434; Hoving et al. 2004, pp.
290–292).
Snowshoe hares comprise a majority
of the lynx diet (Nellis et al. 1972, pp.
323–325; Brand et al. 1976, pp. 422–
425; Koehler 1990, p. 848; Apps 2000,
pp. 358–359, 363; Aubry et al. 2000, pp.
375–378; Mowat et al. 2000, pp. 267–
268; von Kienast 2003, pp. 37–38;
Squires et al. 2004b, p. 15, Table 8).
When snowshoe hare populations are
low, female lynx produce few or no
kittens that survive to independence
(Nellis et al. 1972, pp. 326–328; Brand
et al. 1976, pp. 420, 427; Brand and
Keith 1979, pp. 837–838, 847; Poole
1994, pp. 612–616; Slough and Mowat
1996, pp. 953–958; O’Donoghue et al.
1997, pp. 158–159; Aubry et al. 2000,
pp. 388–389; Mowat et al. 2000, pp.
285–287). Lynx prey opportunistically
on other small mammals and birds,
particularly during lows in snowshoe
hare populations, but alternate prey
species may not sufficiently compensate
for low availability of snowshoe hares,
resulting in reduced lynx populations
(Brand et al. 1976, pp. 422–425; Brand
and Keith 1979, pp. 833–834; Koehler
1990, pp. 848–849; Mowat et al. 2000,
pp. 267–268).
In northern Canada, lynx populations
fluctuate in response to the cycling of
snowshoe hare populations (Hodges
2000a, pp. 118–123; Mowat et al. 2000,
pp. 270–272). Although snowshoe hare
populations in the northern portion of
their range show strong, regular
population cycles, these fluctuations are
generally much less pronounced in the
southern portion of their range in the
contiguous United States (Hodges
2000b, pp. 165–173). In the contiguous
United States, the degree to which
regional local lynx population
fluctuations are influenced by local
snowshoe hare population dynamics is
unclear. However, it is anticipated that
because of natural fluctuations in
snowshoe hare populations, there will
be periods when lynx densities are
extremely low.
Because lynx population dynamics,
survival, and reproduction are closely
tied to snowshoe hare availability,
snowshoe hare habitat is a component
of lynx habitat. Lynx generally
concentrate their foraging and hunting
activities in areas where snowshoe hare
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populations are high (Koehler et al.
1979, p. 442; Ward and Krebs 1985, pp.
2821–2823; Murray et al. 1994, p. 1450;
O’Donoghue et al. 1997, pp. 155, 159–
160 and 1998, pp. 178–181). Snowshoe
hares are most abundant in forests with
dense understories that provide forage,
cover to escape from predators, and
protection during extreme weather
(Wolfe et al. 1982, pp. 665–669; Litvaitis
et al. 1985, pp. 869–872; Hodges 2000a,
pp. 136–140 and 2000b, pp. 183–195).
Generally, hare densities are higher in
regenerating, earlier successional forest
stages because they have greater
understory structure than mature forests
(Buehler and Keith 1982, p. 24; Wolfe et
al. 1982, pp. 665–669; Koehler 1990, pp.
847–848; Hodges 2000b, pp. 183–195;
Homyack 2003, p. 63, 141; Griffin 2004,
pp. 84–88). However, snowshoe hares
can be abundant in mature forests with
dense understories (Griffin 2004, pp.
53–54).
Within the boreal forest, lynx den
sites are located where coarse woody
debris, such as downed logs and
windfalls, provides security and thermal
cover for lynx kittens (McCord and
Cardoza 1982, pp. 743–744; Koehler
1990, pp. 847–849; Slough 1999, p. 607;
Squires and Laurion 2000, pp. 346–347;
Organ 2001). The amount of structure
(e.g., downed, large, woody debris)
appears to be more important than the
age of the forest stand for lynx denning
habitat (Mowat et al. 2000, pp. 10–11).
The 14-State Canada Lynx DPS
Lynx were listed in 2000 within what
was determined to be the contiguous
United States DPS, which included the
known current and historical range of
the lynx (68 FR 40080). This range
included the States of Colorado, Idaho,
Maine, Minnesota, Montana, New
Hampshire, New York, and Washington,
and also areas that could support
dispersers—portions of Michigan,
Oregon, Utah, Vermont, Wisconsin, and
Wyoming (68 FR 40099). Other areas
outside of boreal forest, where
dispersing lynx had only been
sporadically documented, were not
considered to be within the range of the
lynx, because they were deemed
incapable of supporting lynx; these
areas included Connecticut, Indiana,
Iowa, Massachusetts, Nebraska, Nevada,
North Dakota, Ohio, Pennsylvania,
South Dakota, and Virginia (68 FR
40099). New Mexico was not included
in this list of States because no lynx
occurred there, and no lynx had ever
been documented there, even
sporadically, and it therefore was not
considered in the then current or
historical range of the species (68 FR
40083). In addition, no review of
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potential habitat in New Mexico was
conducted; we did not consider lynx
recently released into Colorado that
strayed into New Mexico as sufficient
reason to include New Mexico within
the range of lynx because there was no
evidence that habitat in New Mexico
historically supported lynx (68 FR
40083, July 3, 2003).
In 1998, when the Service proposed to
list the lynx in the United States, no
wild (or reintroduced) lynx were known
to exist in Colorado, which represented
the extreme southern edge of the
species’ range (65 FR 16059, March 24,
2000). Boreal forest habitat in Colorado
and southeastern Wyoming, the
Southern Rocky Mountain Region, is
isolated from boreal forest in Utah and
northwestern Wyoming, and is naturally
highly fragmented (65 FR 16059, March
24, 2000). It was uncertain whether
Colorado had ever supported a small
self-sustaining lynx population, or
whether historical records were of
dispersers that arrived during high
population cycles of lynx. Some of these
dispersers may have remained for a
period of years if hare populations were
high enough to support residents and
reproduction, but eventually succumbed
to a lack of consistent, high quality
habitat and food sources.
In 1999, the Colorado Department of
Wildlife reintroduced 22 wild lynx from
Canada and Alaska into southwestern
Colorado (Shenk 2007, p. 20). By 2003,
when we clarified the listing rule (68 FR
40076, July 3, 2003), no data indicated
that the lynx released could be
supported by the habitat available in
Colorado. In her 2007 Wildlife Research
Report, Shenk continued to conclude
that ‘‘what is yet to be determined is
whether current conditions in Colorado
can support the recruitment necessary
to offset annual mortality in order to
sustain the population’’ (Shenk 2007, p.
18). Colorado was included in the 14state DPS in 2000, because records
indicated that lynx habitat occurred
there historically; however, it was not
known to sustain lynx populations. No
information existed in 2000 when the
final rule was published to indicate that
lynx existed in New Mexico, that it was
ever occupied historically, or that it
could sustain lynx, therefore it was not
included in the listing rule or special
rule concerning lynx in the contiguous
14-State DPS. We now have
documentation that lynx reintroduced
in Colorado have dispersed in many
directions, primarily into New Mexico,
Utah, and Wyoming, but also into eight
other States (Shenk 2007, pp. 6, 9). No
reproduction has been documented in
New Mexico or Utah, but one den was
found in Wyoming (Shenk 2007, p. 15).
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76993
We included an analysis in the final
lynx listing rule (68 FR 40081) on
whether lynx were both discrete and
significant in each of the four regions of
the contiguous United States where it
exists (the Northeast, Great Lakes,
Southern Rocky Mountains, and
Northern Rocky Mountains/Cascades).
We determined that none of the regions
individually constitute significantly
unique or unusual ecological setting
and, therefore, did not individually
meet the DPS criteria. Therefore, the
lynx was listed as a single contiguous
United States DPS defined by 14 States.
The Petition
The August 1, 2007, petition requests
that we ‘‘update and amend the lynx’s
listing status to include the mountains
of north-central New Mexico.’’ Their
petition presents information with
respect to three topic areas: (A)
Compliance with the ESA, our 1996
‘‘Policy Regarding the Recognition of
Distinct Vertebrate Population Segments
under the Endangered Species Act’’
(DPS Policy, 61 FR 4722), and the
special listing rule and preamble to the
final listing rule; (B) use of best
scientific and commercial data
available; and (C) the necessity for lynx
in New Mexico to be listed to ensure the
survival and recovery of lynx in the
southern Rockies.
The petition seeks modification of the
currently listed 14-state DPS in light of
the following factors:
1. The petitioners indicate that the
Service:
(a) Listed a single contiguous United
States DPS;
(b) Determined that, as a Federal
agency, it is responsible for coordinating
recovery for a species that crosses State
boundaries;
(c) Discussed 14 individual States
only in the context of describing lynx
historical range, and not as a limitation
on the species’ listing status; and
(d) Developed language in the special
listing rule for lynx (50 CFR 17.40(k))
applying prohibitions to all lynx found
in the contiguous United States.
2. The petitioners indicate that:
(a) The DPS Policy prohibits the
Service from using political boundaries
below the international level when
listing DPSs;
(b) The Service cannot use the
boundary between States to subdivide a
single biological population; and
(c) Use of a species’ known historical
range to define its listing status is
inconsistent with the policy because it
deems portions of the current range to
be markedly separate without actual
discreteness analysis.
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3. The petitioners present information
that the Act authorizes the listing of a
species, subspecies, or DPS; the Service
listed a United States DPS based on the
international boundary with Canada,
and no further distinctions (e.g.,
limiting to specific States) can be made.
4. The petitioners discuss and provide
information to support their assessment
that the lynx should be listed in New
Mexico (Ruediger et al. 2000; Frey 2006;
Frey 2003; Malaney 2003; Malaney and
Frey 2005; BISON 2003; Checklist 2003;
and Shenk 2001, 2005a, 2005b, 2006,
2007). The petitioners indicate that the
Southern Rockies include high
elevation, mountainous habitat that
extends into north-central New Mexico.
They indicate that, although no known
historical occurrence records of lynx in
New Mexico exist (Frey 2006, p. 20), we
should carefully review the forest zones
in New Mexico to ascertain whether
suitable habitat exists.
5. The petitioners discuss why the
lynx final listing rule is not logical and
is contrary to the purpose and goals of
the Act that include conserving
ecosystems upon which species depend.
The petitioners indicate that lynx
traveling into New Mexico could be
legally shot and hunted, and that this is
contrary to the purpose of the Act,
which is to provide a means whereby
the ecosystems upon which threatened
and endangered species depend may be
conserved.
Finding
We reviewed the petition, supporting
information provided by the petitioners,
and information in our files.
We find that the petition presents
substantial scientific or commercial
information indicating that changing the
listing status of Canada lynx to include
New Mexico in the threatened
contiguous United States Distinct
Population Segment may be warranted.
Therefore, we will initiate a review of
the specific points raised by the
petitioners and the best available
information, and present our analysis
and determination in our 12-month
finding.
It is important to note that the
‘‘substantial information’’ standard for a
90-day finding is in contrast to the Act’s
‘‘best scientific and commercial data’’
standard that applies to a 12-month
finding as to whether a petitioned action
is warranted. A 90-day finding is not a
status assessment of the species and
does not constitute a status review
under the Act. Our final determination
as to whether a petitioned action is
warranted is not made until we have
completed a thorough review of issues
raised in the petition that are
VerDate Aug<31>2005
17:43 Dec 17, 2008
Jkt 217001
substantial, which is conducted
following a substantial 90-day finding.
Because the Act’s standards for 90-day
and 12-month findings are different, as
described above, a substantial 90-day
finding does not mean that the 12month finding will result in a warranted
finding.
References Cited
A complete list of all references cited
herein is available upon request from
the Montana Ecological Services Field
Office (see the FOR FURTHER INFORMATION
CONTACT section).
Author
The primary authors of this document
are staff from the Montana Ecological
Services Field Office (see the FOR
FURTHER INFORMATION CONTACT section).
Authority
The authority for this action is section
4 of the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et
seq.).
Dated: December 12, 2008.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife
Service.
[FR Doc. E8–30110 Filed 12–17–08; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 92
[FWS–R7–MB–2008–0099; 91200–1231–
9BPP L2]
RIN 1018–AW29
Migratory Bird Subsistence Harvest in
Alaska; Harvest Regulations for
Migratory Birds in Alaska During the
2009 Season
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
SUMMARY: The U.S. Fish and Wildlife
Service (Service or we) proposes
migratory bird subsistence harvest
regulations in Alaska for the 2009
season. The proposed regulations would
enable the continuation of customary
and traditional subsistence uses of
migratory birds in Alaska and prescribe
regional information on when and
where the harvesting of birds may
occur. These proposed regulations were
developed under a co-management
process involving the Service, the
Alaska Department of Fish and Game,
and Alaska Native representatives. The
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rulemaking is necessary because the
regulations governing the subsistence
harvest of migratory birds in Alaska are
subject to annual review. This
rulemaking proposes region-specific
regulations that would go into effect on
April 2, 2009, and expire on August 31,
2009.
DATES: We will accept comments
received or postmarked on or before
January 20, 2009. We must receive
requests for public hearings, in writing,
at the address shown in FOR FURTHER
INFORMATION CONTACT by February 2,
2009.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: RIN 1018–
AW29, Division of Policy and Directives
Management, U.S. Fish and Wildlife
Service, 4401 N. Fairfax Drive, Suite
222, Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section below for
more information).
FOR FURTHER INFORMATION CONTACT: Fred
Armstrong, (907) 786–3887, or Donna
Dewhurst, (907) 786–3499, U.S. Fish
and Wildlife Service, 1011 E. Tudor
Road, Mail Stop 201, Anchorage, AK
99503.
SUPPLEMENTARY INFORMATION:
Public Comments
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in the
ADDRESSES section. We will not accept
comments sent by e-mail or fax or to an
address not listed in the ADDRESSES
section. We will not consider handdelivered comments that we do not
receive, or mailed comments that are
not postmarked, by the date specified in
the DATES section.
We will post your entire comment—
including your personal identifying
information—on https://
www.regulations.gov. If you provide
personal identifying information in your
comment, you may request at the top of
your document that we withhold this
information from public review.
However, we cannot guarantee that we
will be able to do so.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov, or by
E:\FR\FM\18DEP1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Proposed Rules]
[Pages 76990-76994]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30110]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R6-ES-2008-0122; MO 9221050083-B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To Change the Listing Status of the Canada Lynx
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 revise the listing of the Canada lynx
(Lynx canadensis) as threatened under the Endangered Species Act of
1973, as amended (Act), to include New Mexico. We find that the
petition presents substantial scientific or commercial information
indicating that changing the listing status of the contiguous United
States Distinct Population Segment of Canada lynx to include New Mexico
may be warranted. Therefore, with the publication of this notice, we
are initiating a further review in response to the petition, and we
will issue a 12-month finding to determine if the petitioned action is
warranted. To ensure that our review is comprehensive, we are
soliciting feedback from the public regarding this species.
DATES: To allow us adequate time to conduct this review, we request
that we receive information on or before February 17, 2009.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R6-ES-2008-0088; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all information
provided to us at https://www.regulations.gov. This generally means that
we will post any personal information you provide us (see the
Information Solicited section below for more details).
ADDRESSES: This finding is available on the Internet at https://
www.regulations.gov. Supporting documentation we used in preparing this
finding is available for public inspection, by appointment, during
normal business hours at the Montana Ecological Services Field Office,
585 Shepard Way, Helena, MT 59601. Please submit any new information,
materials, comments, or questions concerning this finding to the above
address.
FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana
Ecological Services Field Office (see ADDRESSES section), telephone
406-449-5225. If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that a petition presents substantial
information to indicate that listing a species may be warranted, or in
this case, to revise the listing of a species, we are required to
promptly commence further review. To ensure that the review is complete
and based on the best available scientific and commercial information,
we are soliciting information from the public, other concerned
governmental agencies, Native American Tribes, the scientific
community, industry, or any other interested parties concerning the
status of the lynx. We are seeking information regarding the species'
historical and current status and distribution, its
[[Page 76991]]
biology and ecology, and threats to the species and its habitat.
Please note that submissions merely stating support or opposition
to the action under consideration without providing supporting
information, although noted, will not be considered in making a
determination, as section 4(b)(1)(A) of the Act directs that
determinations shall be made ``solely on the basis of the best
scientific and commercial data available.'' At the conclusion of the
review, we will issue the 12-month finding on the petition, as provided
in section 4(b)(3)(B) of the Act (16 U.S.C. 1533(b)(3)(B)).
You may submit your information concerning this 90-day finding by
one of the methods listed in the ADDRESSES section. We will not accept
comments sent by e-mail or fax or to an address not listed in the
ADDRESSES section. Finally, we may not consider comments that we do not
receive by the date specified in the DATES section.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Information and materials we receive, as well as supporting
documentation we used in preparing this 90-day finding, will be
available for public inspection on https://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Montana Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Background
Section 4(b)(3)(A) of the Endangered Species Act 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 must base
this finding on information contained in the petition and supporting
information readily available in our files at the time of the petition
review. To the maximum extent practicable, we are to make this finding
within 90 days of our receipt of the petition, and publish our notice
of this finding promptly in the Federal Register.
Our standard for ``substantial information'' in the Code of Federal
Regulations (CFR) regarding a 90-day petition finding 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)).
If we find that the petition presented substantial information, we are
required to promptly commence a review of the status of the species.
We received a petition from Forest Guardians and six other
organizations, dated August 1, 2007, requesting that we revise the
listing status of the contiguous United States Distinct Population
Segment of Canada lynx (lynx) (Lynx canadensis) to include the
mountains of north-central New Mexico. We acknowledged receipt of the
petition in a letter dated August 24, 2007. In that letter we advised
the petitioners that we could not address their petition at that time
because existing court orders and settlement agreements for other
listing actions required nearly all of our listing funding. We also
concluded that emergency listing of the lynx in New Mexico was not
warranted.
We received a 60-day notice of intent to sue from Forest Guardians
on January 24, 2008, and on April 17, 2008, (the newly-named) WildEarth
Guardians et al. filed a complaint against the Service in the U.S.
District Court in the District of Columbia for failing to make a 90-day
finding on their August 1, 2007, petition. We anticipate that
completion of this finding will moot the litigation filed in the U.S.
District Court.
In making this finding, we relied on information provided by the
petitioners, as well as information readily available in our files. We
evaluated the information in accordance with 50 CFR 424.14(b). Our
process for making this 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 scientific and commercial information'' threshold.
Regulatory History
For more information on previous Federal actions concerning the
lynx, refer to the final listing rule published in the Federal Register
on March 24, 2000 (65 FR 16052), and the clarifications of findings
published in the Federal Register on July 3, 2003 (68 FR 40075), and
January 10, 2007 (72 FR 1186). The final listing rule designated lynx
as threatened in the contiguous United States as a Distinct Population
Segment (DPS), including the States of Colorado, Idaho, Maine,
Michigan, Minnesota, Montana, New Hampshire, New York, Oregon, Utah,
Vermont, Washington, Wisconsin, and Wyoming. The 2003 clarification
addressed listing status, issues related to the DPS determinations,
threats, and definitions of resident populations and dispersers. The
2007 clarification addressed whether any significant portion of the
range of the lynx exists in the contiguous United States.
The final rule designating critical habitat for lynx published in
the Federal Register on November 9, 2006 (71 FR 66008). On July 20,
2007, the Service announced that we would review the November 9, 2006,
final rule after questions were raised about the integrity of
scientific information used and whether the decision made was
consistent with the appropriate legal standards. Based on our review of
the final critical habitat designation, we determined that it was
necessary to revise critical habitat. On January 15, 2007, the U.S.
District Court for the District of Columbia issued an order stating the
Service's deadline for a proposed rule for revised critical habitat was
February 15, 2008, and for a final rule for revised critical habitat
was February 15, 2009. We published a proposed rule to revise critical
habitat for the lynx in the Federal Register on February 28, 2008 (73
FR 10860).
The special rule developed under section 4(d) of the Act (65 FR
16084, March 24, 2000) defines section 9 prohibitions to lynx, as
provided for under 50 CFR 17.31. The special rule applies general take
prohibitions for threatened wildlife to the wild population of lynx in
the contiguous United States, and addresses captive lynx, and
Convention on International Trade in Endangered Species (CITES) export
requirements.
Species Information
Canada lynx are medium-sized cats, generally measuring 30 to 35
inches (75 to 90 centimeters) long and weighing 18 to 23 pounds (8 to
10.5 kilograms) (Quinn and Parker 1987, Table 1). They have large,
well-furred feet and long legs for traversing snow; tufts on the ears;
and short, black-tipped tails.
Lynx are highly specialized predators of snowshoe hare (Lepus
americanus) (McCord and Cardoza 1982, p. 744; Quinn and Parker 1987,
pp. 684-685; Aubry et al. 2000, pp. 375-378). Lynx and snowshoe hares
are strongly associated with what is broadly described as boreal forest
(Bittner and Rongstad 1982, p. 154; McCord and Cardoza 1982, p. 743;
Quinn and Parker 1987, p. 684; Agee 2000, p. 39; Aubry et al. 2000, pp.
378-382; Hodges 2000a, pp. 136-140 and 2000b, pp. 183-191; McKelvey et
al. 2000b, pp. 211-232). The predominant vegetation of boreal forest is
conifer trees, primarily species
[[Page 76992]]
of spruce (Picea spp.) and fir (Abies spp.) (Elliot-Fisk 1988, pp. 34-
35, 37-42). In the contiguous United States, the boreal forest types
transition to deciduous temperate forest in the Northeast and Great
Lakes and to subalpine forest in the west (Agee 2000, pp. 40-41). Lynx
habitat can generally be described as moist boreal forests that have
cold, snowy winters and a snowshoe hare prey base (Quinn and Parker
1987, p. 684-685; Agee 2000, pp. 39-47; Aubry et al. 2000, pp. 373-375;
Buskirk et al. 2000b, pp. 397-405; Ruggiero et al. 2000, pp. 445-447).
In mountainous areas, the boreal forests that lynx use are
characterized by scattered moist forest types with high hare densities
in a matrix of other habitats (e.g., hardwoods, dry forest, non-forest)
with low hare densities. In these areas, lynx incorporate the matrix
habitat (non-boreal forest habitat elements) into their home ranges and
use it for traveling between patches of boreal forest that support high
hare densities where most foraging occurs.
Snow conditions also determine the distribution of lynx (Ruggiero
et al. 2000, pp. 445-449). Lynx are morphologically and physiologically
adapted for hunting snowshoe hares and surviving in areas that have
cold winters with deep, fluffy snow for extended periods. These
adaptations provide lynx a competitive advantage over potential
competitors, such as bobcats (Lynx rufus) or coyotes (Canis latrans)
(McCord and Cardoza 1982, p. 748; Buskirk et al. 2000a, pp. 86-95;
Ruediger et al. 2000, p. 1-11; Ruggiero et al. 2000, pp. 445, 450).
Bobcats and coyotes have a higher foot load (more weight per surface
area of foot), which causes them to sink into the snow more than lynx.
Therefore, bobcats and coyotes cannot efficiently hunt in fluffy or
deep snow and are at a competitive disadvantage to lynx. Long-term snow
conditions presumably limit the winter distribution of potential lynx
competitors such as bobcats (McCord and Cardoza 1982, p. 748) or
coyotes.
Lynx Habitat Requirements
Because of the patchiness and temporal nature of high-quality
snowshoe hare habitat, lynx populations require large boreal forest
landscapes to ensure that sufficient high quality snowshoe hare habitat
is available and to ensure that lynx may move freely among patches of
suitable habitat and among subpopulations of lynx. Populations that are
composed of a number of discrete subpopulations, connected by
dispersal, are called metapopulations (McKelvey et al. 2000c, p. 25).
Individual lynx maintain large home ranges (reported as generally
ranging between 12 to 83 miles \2\ (31 to 216 kilometers \2\)) (Koehler
1990, p. 847; Aubry et al. 2000, pp. 382-386; Squires and Laurion 2000,
pp. 342-347; Squires et al. 2004b, pp. 13-16, Table 6; Vashon et al.
2005a, pp. 7-11). The size of lynx home ranges varies depending on
abundance of prey, the animal's gender and age, the season, and the
density of lynx populations (Koehler 1990, p. 849; Poole 1994, pp. 612-
616; Slough and Mowat 1996, pp. 951, 956; Aubry et al. 2000, pp. 382-
386; Mowat et al. 2000, pp. 276-280; Vashon et al. 2005a, pp. 9-10).
When densities of snowshoe hares decline, for example, lynx enlarge
their home ranges to obtain sufficient amounts of food to survive and
reproduce.
In the contiguous United States, the boreal forest landscape is
naturally patchy and transitional because it is the southern edge of
the distributional range of the boreal forest. This generally limits
snowshoe hare populations in the contiguous United States from
achieving densities similar to those of the expansive northern boreal
forest in Canada (Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp.
24, 28; Koehler 1990, p. 849; Koehler and Aubry 1994, p. 84).
Additionally, the presence of more snowshoe hare predators and
competitors at southern latitudes may inhibit the potential for high-
density hare populations (Wolff 1980, p. 128). As a result, lynx
generally occur at relatively low densities in the contiguous United
States compared to the high lynx densities that occur in the northern
boreal forest of Canada (Aubry et al. 2000, pp. 375, 393-394) or the
densities of species such as the bobcat, which is a habitat and prey
generalist.
Lynx are highly mobile and generally move long distances (greater
than 60 miles (100 kilometers)) (Aubry et al. 2000, pp. 386-387; Mowat
et al. 2000, pp. 290-294). Lynx disperse primarily when snowshoe hare
populations decline (Ward and Krebs 1985, pp. 2821-2823; O'Donoghue et
al. 1997, pp. 156, 159; Poole 1997, pp. 499-503). Subadult lynx
disperse even when prey is abundant (Poole 1997, pp. 502-503),
presumably to establish new home ranges. Lynx also make exploratory
movements outside their home ranges (Aubry et al. 2000, p. 386; Squires
et al. 2001, pp. 18-26).
The boreal forest landscape is naturally dynamic. Forest stands
within the landscape change as they undergo succession after natural or
human-caused disturbances such as fire, insect epidemics, wind, ice,
disease, and forest management (Elliot-Fisk 1988, pp. 47-48; Agee 2000,
pp. 47-69). As a result, lynx habitat within the boreal forest
landscape is typically patchy because the boreal forest contains stands
of differing ages and conditions, some of which are suitable as lynx
foraging or denning habitat (or will become suitable in the future due
to forest succession) and some of which serve as travel routes for lynx
moving between foraging and denning habitat (McKelvey et al. 2000a, pp.
427-434; Hoving et al. 2004, pp. 290-292).
Snowshoe hares comprise a majority of the lynx diet (Nellis et al.
1972, pp. 323-325; Brand et al. 1976, pp. 422-425; Koehler 1990, p.
848; Apps 2000, pp. 358-359, 363; Aubry et al. 2000, pp. 375-378; Mowat
et al. 2000, pp. 267-268; von Kienast 2003, pp. 37-38; Squires et al.
2004b, p. 15, Table 8). When snowshoe hare populations are low, female
lynx produce few or no kittens that survive to independence (Nellis et
al. 1972, pp. 326-328; Brand et al. 1976, pp. 420, 427; Brand and Keith
1979, pp. 837-838, 847; Poole 1994, pp. 612-616; Slough and Mowat 1996,
pp. 953-958; O'Donoghue et al. 1997, pp. 158-159; Aubry et al. 2000,
pp. 388-389; Mowat et al. 2000, pp. 285-287). Lynx prey
opportunistically on other small mammals and birds, particularly during
lows in snowshoe hare populations, but alternate prey species may not
sufficiently compensate for low availability of snowshoe hares,
resulting in reduced lynx populations (Brand et al. 1976, pp. 422-425;
Brand and Keith 1979, pp. 833-834; Koehler 1990, pp. 848-849; Mowat et
al. 2000, pp. 267-268).
In northern Canada, lynx populations fluctuate in response to the
cycling of snowshoe hare populations (Hodges 2000a, pp. 118-123; Mowat
et al. 2000, pp. 270-272). Although snowshoe hare populations in the
northern portion of their range show strong, regular population cycles,
these fluctuations are generally much less pronounced in the southern
portion of their range in the contiguous United States (Hodges 2000b,
pp. 165-173). In the contiguous United States, the degree to which
regional local lynx population fluctuations are influenced by local
snowshoe hare population dynamics is unclear. However, it is
anticipated that because of natural fluctuations in snowshoe hare
populations, there will be periods when lynx densities are extremely
low.
Because lynx population dynamics, survival, and reproduction are
closely tied to snowshoe hare availability, snowshoe hare habitat is a
component of lynx habitat. Lynx generally concentrate their foraging
and hunting activities in areas where snowshoe hare
[[Page 76993]]
populations are high (Koehler et al. 1979, p. 442; Ward and Krebs 1985,
pp. 2821-2823; Murray et al. 1994, p. 1450; O'Donoghue et al. 1997, pp.
155, 159-160 and 1998, pp. 178-181). Snowshoe hares are most abundant
in forests with dense understories that provide forage, cover to escape
from predators, and protection during extreme weather (Wolfe et al.
1982, pp. 665-669; Litvaitis et al. 1985, pp. 869-872; Hodges 2000a,
pp. 136-140 and 2000b, pp. 183-195). Generally, hare densities are
higher in regenerating, earlier successional forest stages because they
have greater understory structure than mature forests (Buehler and
Keith 1982, p. 24; Wolfe et al. 1982, pp. 665-669; Koehler 1990, pp.
847-848; Hodges 2000b, pp. 183-195; Homyack 2003, p. 63, 141; Griffin
2004, pp. 84-88). However, snowshoe hares can be abundant in mature
forests with dense understories (Griffin 2004, pp. 53-54).
Within the boreal forest, lynx den sites are located where coarse
woody debris, such as downed logs and windfalls, provides security and
thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744;
Koehler 1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion
2000, pp. 346-347; Organ 2001). The amount of structure (e.g., downed,
large, woody debris) appears to be more important than the age of the
forest stand for lynx denning habitat (Mowat et al. 2000, pp. 10-11).
The 14-State Canada Lynx DPS
Lynx were listed in 2000 within what was determined to be the
contiguous United States DPS, which included the known current and
historical range of the lynx (68 FR 40080). This range included the
States of Colorado, Idaho, Maine, Minnesota, Montana, New Hampshire,
New York, and Washington, and also areas that could support
dispersers--portions of Michigan, Oregon, Utah, Vermont, Wisconsin, and
Wyoming (68 FR 40099). Other areas outside of boreal forest, where
dispersing lynx had only been sporadically documented, were not
considered to be within the range of the lynx, because they were deemed
incapable of supporting lynx; these areas included Connecticut,
Indiana, Iowa, Massachusetts, Nebraska, Nevada, North Dakota, Ohio,
Pennsylvania, South Dakota, and Virginia (68 FR 40099). New Mexico was
not included in this list of States because no lynx occurred there, and
no lynx had ever been documented there, even sporadically, and it
therefore was not considered in the then current or historical range of
the species (68 FR 40083). In addition, no review of potential habitat
in New Mexico was conducted; we did not consider lynx recently released
into Colorado that strayed into New Mexico as sufficient reason to
include New Mexico within the range of lynx because there was no
evidence that habitat in New Mexico historically supported lynx (68 FR
40083, July 3, 2003).
In 1998, when the Service proposed to list the lynx in the United
States, no wild (or reintroduced) lynx were known to exist in Colorado,
which represented the extreme southern edge of the species' range (65
FR 16059, March 24, 2000). Boreal forest habitat in Colorado and
southeastern Wyoming, the Southern Rocky Mountain Region, is isolated
from boreal forest in Utah and northwestern Wyoming, and is naturally
highly fragmented (65 FR 16059, March 24, 2000). It was uncertain
whether Colorado had ever supported a small self-sustaining lynx
population, or whether historical records were of dispersers that
arrived during high population cycles of lynx. Some of these dispersers
may have remained for a period of years if hare populations were high
enough to support residents and reproduction, but eventually succumbed
to a lack of consistent, high quality habitat and food sources.
In 1999, the Colorado Department of Wildlife reintroduced 22 wild
lynx from Canada and Alaska into southwestern Colorado (Shenk 2007, p.
20). By 2003, when we clarified the listing rule (68 FR 40076, July 3,
2003), no data indicated that the lynx released could be supported by
the habitat available in Colorado. In her 2007 Wildlife Research
Report, Shenk continued to conclude that ``what is yet to be determined
is whether current conditions in Colorado can support the recruitment
necessary to offset annual mortality in order to sustain the
population'' (Shenk 2007, p. 18). Colorado was included in the 14-state
DPS in 2000, because records indicated that lynx habitat occurred there
historically; however, it was not known to sustain lynx populations. No
information existed in 2000 when the final rule was published to
indicate that lynx existed in New Mexico, that it was ever occupied
historically, or that it could sustain lynx, therefore it was not
included in the listing rule or special rule concerning lynx in the
contiguous 14-State DPS. We now have documentation that lynx
reintroduced in Colorado have dispersed in many directions, primarily
into New Mexico, Utah, and Wyoming, but also into eight other States
(Shenk 2007, pp. 6, 9). No reproduction has been documented in New
Mexico or Utah, but one den was found in Wyoming (Shenk 2007, p. 15).
We included an analysis in the final lynx listing rule (68 FR
40081) on whether lynx were both discrete and significant in each of
the four regions of the contiguous United States where it exists (the
Northeast, Great Lakes, Southern Rocky Mountains, and Northern Rocky
Mountains/Cascades). We determined that none of the regions
individually constitute significantly unique or unusual ecological
setting and, therefore, did not individually meet the DPS criteria.
Therefore, the lynx was listed as a single contiguous United States DPS
defined by 14 States.
The Petition
The August 1, 2007, petition requests that we ``update and amend
the lynx's listing status to include the mountains of north-central New
Mexico.'' Their petition presents information with respect to three
topic areas: (A) Compliance with the ESA, our 1996 ``Policy Regarding
the Recognition of Distinct Vertebrate Population Segments under the
Endangered Species Act'' (DPS Policy, 61 FR 4722), and the special
listing rule and preamble to the final listing rule; (B) use of best
scientific and commercial data available; and (C) the necessity for
lynx in New Mexico to be listed to ensure the survival and recovery of
lynx in the southern Rockies.
The petition seeks modification of the currently listed 14-state
DPS in light of the following factors:
1. The petitioners indicate that the Service:
(a) Listed a single contiguous United States DPS;
(b) Determined that, as a Federal agency, it is responsible for
coordinating recovery for a species that crosses State boundaries;
(c) Discussed 14 individual States only in the context of
describing lynx historical range, and not as a limitation on the
species' listing status; and
(d) Developed language in the special listing rule for lynx (50 CFR
17.40(k)) applying prohibitions to all lynx found in the contiguous
United States.
2. The petitioners indicate that:
(a) The DPS Policy prohibits the Service from using political
boundaries below the international level when listing DPSs;
(b) The Service cannot use the boundary between States to subdivide
a single biological population; and
(c) Use of a species' known historical range to define its listing
status is inconsistent with the policy because it deems portions of the
current range to be markedly separate without actual discreteness
analysis.
[[Page 76994]]
3. The petitioners present information that the Act authorizes the
listing of a species, subspecies, or DPS; the Service listed a United
States DPS based on the international boundary with Canada, and no
further distinctions (e.g., limiting to specific States) can be made.
4. The petitioners discuss and provide information to support their
assessment that the lynx should be listed in New Mexico (Ruediger et
al. 2000; Frey 2006; Frey 2003; Malaney 2003; Malaney and Frey 2005;
BISON 2003; Checklist 2003; and Shenk 2001, 2005a, 2005b, 2006, 2007).
The petitioners indicate that the Southern Rockies include high
elevation, mountainous habitat that extends into north-central New
Mexico. They indicate that, although no known historical occurrence
records of lynx in New Mexico exist (Frey 2006, p. 20), we should
carefully review the forest zones in New Mexico to ascertain whether
suitable habitat exists.
5. The petitioners discuss why the lynx final listing rule is not
logical and is contrary to the purpose and goals of the Act that
include conserving ecosystems upon which species depend. The
petitioners indicate that lynx traveling into New Mexico could be
legally shot and hunted, and that this is contrary to the purpose of
the Act, which is to provide a means whereby the ecosystems upon which
threatened and endangered species depend may be conserved.
Finding
We reviewed the petition, supporting information provided by the
petitioners, and information in our files.
We find that the petition presents substantial scientific or
commercial information indicating that changing the listing status of
Canada lynx to include New Mexico in the threatened contiguous United
States Distinct Population Segment may be warranted. Therefore, we will
initiate a review of the specific points raised by the petitioners and
the best available information, and present our analysis and
determination in our 12-month finding.
It is important to note that the ``substantial information''
standard for a 90-day finding is in contrast to the Act's ``best
scientific and commercial data'' standard that applies to a 12-month
finding as to whether a petitioned action is warranted. A 90-day
finding is not a status assessment of the species and does not
constitute a status review under the Act. Our final determination as to
whether a petitioned action is warranted is not made until we have
completed a thorough review of issues raised in the petition that are
substantial, which is conducted following a substantial 90-day finding.
Because the Act's standards for 90-day and 12-month findings are
different, as described above, a substantial 90-day finding does not
mean that the 12-month finding will result in a warranted finding.
References Cited
A complete list of all references cited herein is available upon
request from the Montana Ecological Services Field Office (see the FOR
FURTHER INFORMATION CONTACT section).
Author
The primary authors of this document are staff from the Montana
Ecological Services Field Office (see the FOR FURTHER INFORMATION
CONTACT section).
Authority
The authority for this action is section 4 of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: December 12, 2008.
Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-30110 Filed 12-17-08; 8:45 am]
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