Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Sacramento Mountains Checkerspot Butterfly as Endangered with Critical Habitat, 45396-45411 [E9-21195]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Proposed Rules]
[Pages 45396-45411]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21195]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R2-ES-2008-0110]
[MO 9221050083-B2]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List the Sacramento Mountains Checkerspot Butterfly as 
Endangered with Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce our 
12-month finding on a petition to list the Sacramento Mountains 
checkerspot butterfly (Euphydryas anicia cloudcrofti) as an endangered 
species and to designate critical habitat under the Endangered Species 
Act of 1973, as amended (Act). After a thorough review of all available 
scientific and commercial information, we find that listing the 
subspecies is not warranted at this time. We ask the public to continue 
to submit to us any new information that becomes available concerning 
the status of or threats to the subspecies. This information will help 
us to monitor and encourage the conservation of the subspecies.

DATES: This finding was made on September 2, 2009.

ADDRESSES: This finding is available on the Internet at https://www.regulations.gov at Docket Number FWS-R2-ES-2008-0110. Supporting 
documentation we used to prepare this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, New Mexico Ecological Services Office, 2105 
Osuna NE, Albuquerque, NM 87113; telephone (505) 346-2525; facsimile 
(505) 346-2542. Please submit any new information, materials, comments, 
or questions concerning this finding to the above address.

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Office (see ADDRESSES). If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the Endangered Species Act (Act) (16 U.S.C. 
1531 et seq.) requires that, for any petition to revise the List of 
Endangered and Threatened Wildlife that contains substantial scientific 
and commercial information that listing may be warranted, we make a 
finding within 12 months of the date of receipt of the petition on 
whether the petitioned action is: (a) Not warranted, (b) warranted, or 
(c) warranted, but the immediate proposal of a regulation implementing 
the petitioned action is precluded by other pending proposals to 
determine whether species are threatened or endangered, and expeditious 
progress is being made to add or remove qualified species from the List 
of Endangered and Threatened Wildlife. Section 4(b)(3)(C) of the Act 
requires that a petition for which the requested action is found to be 
warranted but precluded be treated as though resubmitted on the date of 
such finding, that is, requiring a subsequent finding to be made within 
12 months.

[[Page 45397]]

We must publish these findings in the Federal Register.

Previous Federal Actions

    On January 28, 1999, we received a petition from Mr. Kieran 
Suckling of the Southwest Center for Biological Diversity (now Center 
for Biological Diversity) requesting emergency listing of the 
Sacramento Mountains checkerspot butterfly (Euphydryas anicia 
cloudcrofti) (butterfly) as endangered with critical habitat. On 
December 27, 1999, we published a 90-day finding that the petition 
presented substantial information that listing the butterfly may be 
warranted, but that emergency listing was not warranted; that document 
also initiated a status review of the subspecies (64 FR 72300).
    On September 6, 2001, we published a 12-month finding and proposed 
rule to list the butterfly as endangered with critical habitat (66 FR 
46575). On October 7, 2004, we published a notice of availability of 
our draft Conservation Plan for the Sacramento Mountains checkerspot 
butterfly (Euphydryas anicia cloudcrofti) (Conservation Plan) (69 FR 
60178), which we finalized in 2005 (Service et al. 2005). On November 
8, 2004, we published a notice of availability of a draft economic 
analysis and draft environmental assessment on our proposed designation 
of critical habitat for the butterfly (69 FR 64710). On December 21, 
2004, we withdrew the proposed rule (69 FR 76428), concluding that the 
threats to the species were not as great as we had perceived when we 
proposed it for listing.
    On July 5, 2007, we received a petition dated June 28, 2007, from 
Forest Guardians (now WildEarth Guardians) and the Center for 
Biological Diversity requesting that we emergency list the butterfly as 
endangered and that we designate critical habitat concurrently with the 
listing. In a July 26, 2007, letter to the petitioners, we acknowledged 
the petition and responded that we intended to make a finding on 
whether the petition presented substantial information that the 
requested action may be warranted, to the maximum extent practicable 
within 90 days of receipt of the petition, according to the provisions 
of section 4(b)(3) of the Act. On October 16, 2007, we informed the 
petitioners that an emergency listing of the butterfly was not 
warranted at that time because the insect control that had been 
scheduled to occur had been postponed until later in the autumn when 
the butterfly larvae were likely to be inactive and not threatened by 
the insect control actions. In a December 10, 2007, letter, we notified 
the petitioners that funding was available to complete the 90-day 
finding in fiscal year 2008. On January 3, 2008, Forest Guardians filed 
suit against the Service for failure to issue a 90-day finding on the 
petition (Forest Guardians, et al. v. Kempthorne, 1:08-CV-00011-RMU (D. 
D.C.)). On April 15, 2008, a settlement was reached that required the 
Service to submit to the Federal Register a determination of whether 
the petition presents substantial information indicating that the 
petitioned action of listing the butterfly may be warranted.
    On December 5, 2008, we published a 90-day petition finding for the 
butterfly in the Federal Register (73 FR 74123). We found that the 
petition presented substantial information indicating that listing the 
subspecies may be warranted, and we initiated a review of the 
subspecies' status within its range. This notice constitutes our 12-
month finding for the petition to list the butterfly as endangered with 
critical habitat.

Species Information

    The Sacramento Mountains checkerspot butterfly is a member of the 
brush-footed butterfly family (Nymphalidae). The adults have a wingspan 
of approximately 5 centimeters (cm) (2 inches (in)), and they are 
checkered with dark brown, red, orange, white, and black spots and 
lines. Larvae are black-and-white banded with orange dorsal bumps and 
black spines. Larvae reach a maximum length of about 2.5 cm (1 in) 
(Pittenger and Yori 2003, p. 8). The taxon was described in 1980 
(Ferris and Holland 1980).
    The butterfly inhabits meadows within the mixed-conifer forest 
(Lower Canadian Zone) at an elevation between 2,380 to 2,750 meters (m) 
(7,800 to 9,000 feet (ft)) in the vicinity of the Village of 
Cloudcroft, Otero County, New Mexico. The adult butterfly is often 
found in association with the larval food plants Penstemon neomexicanus 
(New Mexico penstemon) and Valeriana edulis (valerian) and adult nectar 
sources, such as Helenium hoopesii (sneezeweed). Penstemon neomexicanus 
is a narrow endemic species (Sivinski and Knight 1996), restricted to 
the Sacramento and Capitan Mountains of south-central New Mexico.
    Adult butterflies are known to lay their eggs only on Penstemon 
neomexicanus (Service et al. 2005, p. 10), although the larvae feed on 
both P. neomexicanus and Valeriana edulis (Service et al. 2005, p. 11). 
After hatching, larvae feed on host plants and, during the fourth or 
fifth instar (the period between molts in the larval stage of the 
butterfly), enter an obligatory and extended diapause (maintaining a 
state of prolonged inactivity), generally as the food plants die back 
in the autumn from freezing. Some larvae may remain in diapause for 
more than one year, depending on environmental conditions. During 
diapause, larvae probably remain in leaf or grass litter near the base 
of shrubs, under the bark of conifers, or in the loose soils associated 
with pocket gopher (Thomomys bottae) mounds (Service et al. 2005, p. 
10). Once the larvae break diapause, they feed and grow through three 
or four more instars before pupating (entering the inactive stage 
within a chrysalis) and emerging as adults. Diapause is generally 
broken in spring (March and April), and adults emerge from the 
chrysalis in summer (June and July).
    We do not know the extent of the historical range of the butterfly 
due to limited information collected on this taxon prior to the time it 
was formally acknowledged as a new subspecies (Ferris and Holland 
1980). The current known range of the butterfly is restricted to the 
Sacramento Mountains and is bordered on the north by the Mescalero 
Apache Nation lands, on the west by Bailey Canyon at the mouth of 
Mexican Canyon, on the east by Spud Patch Canyon, and on the south by 
Cox Canyon (U.S. Forest Service (USFS) 2009a, pp. 1 and appendices; 
Service et al. 2005, p. 12). The potential range of the butterfly to 
the east and west is likely restricted because the nonforested areas 
are below 2,377 m (7,800 ft) in elevation, and the butterfly does not 
occur below this elevation (Service et al. 2005, p. 9).
    The USFS estimates that there are about 1,093 hectares (ha) (2,700 
acres (ac)) of suitable butterfly habitat on USFS (560 ha (1,385 ac)) 
and private lands (532 ha (1,315 ac)) (USFS 2004a, 2008a, p. 18). Of 
this, about 60 to 70 percent, or roughly 647 to 769 ha (1,600 to 1,900 
ac), might be occupied in a given year (USFS 2004a, p. 2; 2009b, p. 2). 
These estimates are the best and most recent information we have 
regarding the range and distribution of the butterfly.

Overview of Survey Data

    Larval and adult abundance surveys have been conducted for the 
butterfly since 1998 (USFS 2009a; Pittenger and Yori 2003). Many 
surveys have been ad hoc and not based upon rigorous methodology. 
Often, individuals were tallied along transects or during chance 
encounter surveys. The USFS has also established and monitored larval 
plots

[[Page 45398]]

since 1999 (USFS 2009a). Analysis of these coarse surveys for larvae 
provide only relative comparisons of mean abundance between years. 
These ad hoc estimates of abundance are based upon total larval counts. 
This type of abundance estimate, frequently known as an index to 
abundance, is known to be biased low (that is, the estimate is always 
lower than the true population number) (White et al. 1982, p. 32; 
Pollock et al. 1990, pp. 30-32). Thus, these data document presence or 
absence on specific plots through time, but are of little use in 
determining population trends of the butterfly. This is, in part, 
because from 1999 to 2003, larval tents that were found on one sampling 
day were not marked, so they may have been recounted on a subsequent 
sampling day (USFS 2004b, pp. 10-11).
    In addition, confounding factors (such as weather, observer bias, 
varying effort), limited replication (one sample per meadow per year), 
and sampling errors limit the applicability of those factors in 
evaluating the butterfly's status (see USFS 2009a). Moreover, in some 
years, the USFS also conducted ad hoc surveys of adult butterflies 
(USFS 2009a). Adult and larval surveys were not conducted at randomly 
selected locations and may not correspond to the butterfly population 
rangewide. The larval plots (areas that are permanently marked and 
annually surveyed) are located within 10 meadows but are only about 223 
square (sq) m (2,400 sq ft). Our review of the data from the larval 
plots found that the small scale of survey plots does not relate 
meaningfully to the demographics of the butterfly. For example, the 
USFS did not detect larvae within 6 of 10 plots in 2008, but adults 
were observed within the four meadows where larvae were not found on 
the plots, confirming the continued occupancy by the subspecies (USFS 
2009a). Had we relied upon the larval plot data, we would have 
inaccurately concluded that the butterfly was absent from the meadows. 
Moreover, the disparity among survey methods, effort, and the data 
collected make it difficult to assess the butterfly population not only 
in occupied meadows, but also rangewide. Thus, the low numbers of 
butterflies observed during dry years, low survey effort, and spatial 
variability of food plants make it difficult to evaluate any historical 
trends or to make predictions about future population trends.
    The rangewide population size of the butterfly remains unknown 
because comprehensive surveys are logistically difficult and, 
therefore, have not been conducted. As noted above, limited surveys 
have been conducted only in small parts of its range. An assessment of 
population trends using these data would not be accurate, unless we 
could demonstrate that these limited data are representative of the 
overall population. We expect detecting overall trends will be 
difficult for this species, given data limitations, the cost of 
comprehensive surveys; and the likelihood of natural, annual, and 
spatial variations.
    The USFS has been conducting presence-or-absence surveys since 1998 
to estimate the range of the butterfly (USFS 2009a). The known range of 
the butterfly has not been expanded since 2004 (USFS 2009a). Although 
we do not have standardized monitoring data to evaluate whether the 
butterfly's population is increasing, stable, or declining on a gross 
scale, our observations indicate that neither the range of the 
butterfly, nor its persistence within general localities has decreased. 
Based on the best available information, we find that the butterfly 
continues to persist within the same general localities (USFS 2009a; 
Service 2009; Pittenger and Yori 2003; McIntyre 2005, 2008; Ryan 2007, 
pp. 11-12). The USFS and Service will continue to survey and monitor 
the butterfly population, although we intend to refine the techniques 
used to improve the quality and applicability of the data collected 
(USFS 2009a, p. 1).
    For more information on the butterfly, refer to the September 6, 
2001, proposed rule (66 FR 46575); the November 1, 2005, Conservation 
Plan (Service et al. 2005); and the December 21, 2004, withdrawal of 
the proposed rule (69 FR 76428). Some of this information is discussed 
in our analysis below. The Conservation Plan (Service et al. 2005) with 
the Village of Cloudcroft, Otero County, USFS, and the Service was 
developed to identify and commit to implementing actions to conserve 
the butterfly.

Summary of Factors Affecting the Species

    Section 4 of the Act (U.S.C. 1533 et seq.) and implementing 
regulations (50 CFR part 424) set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. In making this finding, we summarize below the information 
regarding the status and threats to the butterfly in relation to the 
five factors provided in section 4(a)(1) of the Act. Under section 
4(a)(1) of the Act, we may list a species on the basis of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. In making this 12-month finding, we have 
considered all scientific and commercial information received or 
acquired up to the publication of the 2004 withdrawal of the proposed 
rule (69 FR 76428; December 21, 2004) and any information received 
after that finding, including information in response to the most 
recent 90-day finding (73 FR 74123; December 5, 2008). The petitioners 
provided additional comments and information on the butterfly during 
the comment period for the 90-day finding. We reviewed and incorporated 
this information where appropriate. Our evaluation of this information 
is presented below.

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

    Under Factor A, we considered whether the Sacramento Mountain 
checkerspot butterfly is threatened by the following: Private property 
development, recreational impacts; habitat-altering projects in 
relation to roads, powerlines, and other small-scale impacts; livestock 
grazing; catastrophic wildfire and fire suppression; noxious weeds.
Development
    The petitioners assert that, although development within the 
Village of Cloudcroft decreased following the September 6, 2001, 
publication of the proposed rule to list the butterfly (66 FR 46575), 
development has nonetheless continued and, combined with other threats 
to the butterfly, remains significant. The petitioners correctly note 
that, as passed, the amended Otero County Subdivision Ordinance of 2005 
will expire on July 1, 2011 (Otero County 2005, p. 2). The ordinance 
requires that, for any new subdivision to be developed within potential 
butterfly habitat, a survey be conducted for the butterfly, its 
habitat, and its larval host plant Penstemon neomexicanus. If the 
survey is positive for the presence of the butterfly or its habitat, 
the developer is required to submit plans to address wildfire control, 
avoidance of destruction of the butterfly and its habitat, and, if 
avoidance is not possible, relocation of butterflies and restoration of 
destroyed habitat. The ordinance also contains a section on 
enforcement, penalties, and remedies. The amendment to the subdivision 
ordinance was not in place when we

[[Page 45399]]

made our withdrawal of the proposed listing rule in 2004, so we did not 
rely on it when we concluded that development was not a significant 
threat to the butterfly. The Village of Cloudcroft has received no 
permit applications for new subdivisions since the ordinance became 
effective in 2005, although one survey was conducted within potential 
habitat and found no butterflies present (J. McIntyre, pers. comm., 
2009). The lack of development may be because the area has experienced 
water shortages in recent years (Friederici 2007, p. 1). In fact, water 
was so scarce that the Village of Cloudcroft was forced to haul water 
in recent years and subsequently installed the nation's first reuse 
system, where treated wastewater is combined with incoming water to 
produce water for household use (Kurland 2007). The petition presents 
information on these issues that was previously submitted in comments 
on the draft Conservation Plan (69 FR 60178; October 7, 2004), draft 
environmental assessment (69 FR 64710; November 8, 2004), and draft 
economic analysis (69 FR 64710; November 8, 2004) for the butterfly. 
The draft environmental assessment and draft economic analysis did not 
contemplate effects of the then-future ordinance.
    In our 2004 draft economic analysis, we found that approximately 8 
to 10 new homes had been constructed annually since 2000 within the 
boundary of the proposed critical habitat designation of approximately 
140 sq kilometers (km) (54 square miles (mi)) in the vicinity of the 
Village of Cloudcroft (Service 2004). Based upon this trend of 8 to 10 
new homes annually, over the next 20 years, approximately 160 to 200 
new residential projects may be built within the boundary of the then-
proposed critical habitat for the butterfly. However, not all of these 
new residential projects would be located within areas that contain 
butterfly habitat. The economic analysis assumed that 55 to 69 of the 
landowners would conduct butterfly surveys because they would be 
located within areas that were proposed as critical habitat and that 
provide butterfly habitat. Our draft economic analysis estimated that 
butterflies would be found in 8 to 24 of those 55 residential project 
areas surveyed. Our draft economic analysis also estimated that the 
median lot size of these developments was 0.14 ha (0.34 ac), indicating 
that up to 3.4 ha (8.2 ac) of occupied butterfly habitat may be 
affected by residential and commercial development activities (for a 
detailed discussion, see Service 2004). In the 2001 proposed rule, we 
described an additional 4 ha (10 ac) of impacts from a private 
(residential) development on the east side of the Village of 
Cloudcroft. Thus, we continue to estimate that about 2 percent of the 
suitable occupied butterfly habitat on private lands (7.4 of 314 ha (18 
of 777 ac), using the USFS (2004a, p. 2) estimate of occupied acres on 
private lands) may be subject to development. It is likely that a small 
but unknown number of butterflies may be taken through development 
actions. Nevertheless, we do not believe that this level of impact is a 
significant threat to the butterfly. The discussion of residential and 
commercial development in the withdrawal for the butterfly (69 FR 
76428; December 21, 2004) is still the best available information that 
we have. As such, we have no reason to believe that residential and 
commercial development will threaten the butterfly in the future.
Off-Highway Vehicles
    In our 2004 withdrawal of the proposed rule, we evaluated increased 
efforts by the USFS to reduce off-highway vehicle (OHV) use in Bailey 
Canyon and campgrounds where the butterfly occurs, and we analyzed 
information on the extent and nature of off-road impacts to the 
butterfly and its food plants. We concluded that the specific actions 
(fencing, signs, and barriers) the USFS had taken to reduce OHV impacts 
appeared to be effective, that only a small proportion of occupied 
habitat would be impacted annually by continuing OHV use, that the 
magnitude of the impact is low, and that OHV use does not significantly 
threaten the butterfly (69 FR 76428; December 21, 2004). As detailed 
below, we find this continues to reflect the best available 
information.
    The 90-day finding noted that we had no additional information on 
the increase in OHV use since our withdrawal of the proposed rule to 
list the butterfly in 2004 (73 FR 74123). The petitioners presented 
some additional information during the open comment period. They claim 
that the butterfly will not be considered in the forthcoming travel 
management regulations (described below) until it is listed, a 
candidate, or proposed for listing, and section 7 consultations are 
required for activities that may affect the species (WildEarth 
Guardians 2009, p. 7). Additionally, they believe that OHV use is a 
growing activity on the Lincoln National Forest (Forest) since 2004, 
based on a 2007 monitoring report from the Forest (WildEarth Guardians 
2009, p. 7; USFS 2008b, pp. 9-10).
    We previously recognized that OHV use was increasing on the Forest, 
and that impacts were occurring on about half of the occupied butterfly 
habitat (225 ha (555 ac)) (69 FR 76428; December 21, 2004; USFS 2004a). 
In 2004, we found that fencing, signs, and monitoring by law 
enforcement personnel had stopped OHVs from entering butterfly habitat 
on USFS lands, and very little habitat disturbance can be attributed to 
OHVs in a given year (69 FR 76440). We also noted that the USFS is 
revising its travel management regulations to designate a system of 
existing roads and trails and to regulate or prohibit certain motor 
vehicle uses (69 FR 42381; July 15, 2004, and 69 FR 76428; December 21, 
2004). In November 2005, the USFS issued the Travel Management Rule for 
designation of routes and areas for motorized vehicle use (36 CFR 
212.56). The rule requires that the USFS designate a system of roads, 
trails, and areas for motor vehicle use by vehicle class and, if 
appropriate, by time of year (70 FR 68264; November 5, 2005). The 
directives establishing agency policy and standard processes to follow 
were recently finalized (December 9, 2008; 73 FR 74689). As part of 
this effort, the Forest inventoried and mapped dispersed recreation 
sites (USFS 2008b, p. 2). The current policy on the Forest permits 
driving vehicles up to 91 m (300 ft) from either side of an open, 
authorized road or trail to camp or picnic (USFS 2009c, p. 1). In some 
areas, the Forest found that user-created roads had expanded beyond the 
91-m (300-ft) distance currently allowed under the Forest Plan (USFS 
2008b, p. 2). Through the travel management process, the Forest intends 
to restrict the current distance to 30 m (100 ft) (USFS 2009d, p. 1) 
and will produce new maps to reflect that. Once the designation of 
existing roads and trails that are open for motor vehicle use is 
complete, the Forest will prohibit motor vehicle use off the designated 
system. Still, this Rule will not increase the agency's budget or the 
number of law enforcement officers. However, the designation of a 
system of roads and trails will enhance enforcement by substituting a 
regulatory prohibition for closure orders and providing for a 
standardized motor vehicle use map supplemented by signage (70 FR 
68270; November 9, 2005). This process should be complete during fiscal 
year 2009 (USFS 2009e, p. 5). We agree that some individual butterflies 
or their food plants may be killed or injured by

[[Page 45400]]

OHVs. However, we believe the revised travel management regulations 
will further reduce the impact of motorized vehicles on the butterfly 
and its habitat by providing a consistent policy that can be applied to 
all classes of motor vehicles, including OHVs. We have considered the 
information presented by WildEarth Guardians, including the travel 
analysis report on the Lincoln National Forest (USFS 2008a, entire 
document), and conclude that OHVs are not a significant threat to the 
butterfly now or in the future.
    The USFS reported the quantity of land currently in use as Forest 
roads and within the habitats of species that are potentially affected 
by the presence of roads (USFS 2008a, p. 18). One category of data 
reported is ``acres of habitat lost to road.'' The Forest estimated 
that 51 ha (126 ac) of Forest-wide roads occurred in meadows within the 
range of the butterfly's habitat. The petitioners claim that this 
amount of occupied butterfly habitat has been lost to road construction 
and believe that this loss may be even more significant to the survival 
of the butterfly than the amount of private lands impacted by 
development. This category is a simple calculation based upon the total 
miles of roads that traverse meadow habitat of the butterfly multiplied 
by the average road width. That is, 119 km (74 mi) of roads multiplied 
by an average road width of 4.2 m (14 feet), equaling 51 ha (126 ac), 
traverse butterfly habitat (USFS 2008a, p. 18). While the estimate is 
new information, we previously recognized that roads have been 
historically constructed within meadows likely occupied by the 
butterfly. Therefore, we do not consider these existing roads a new 
threat because none was constructed since our 2004 withdrawal (69 FR 
76428; December 21, 2004). After reviewing this information, we affirm 
that the OHV use and road construction do not present a current or 
foreseeable future threat to the butterfly.
Camping
    As noted above, the existing policy on the Forest for the past 20 
years has been to allow motorized travel anywhere within 91 m (300 ft) 
of either side of an open road or trail on USFS lands to reach a 
dispersed camp site (USFS 2008a, p. 27). On current motorized trails, 
use is limited to vehicles that are less than 127 centimeters (50 
inches) wide (USFS 2008a, p. 22). The Forest gathered data in July 2007 
to locate as many dispersed camping sites as possible (USFS 2008a, pp. 
27-28). They recorded 477 dispersed camping sites on the entire 
Sacramento Ranger District, but did not report how many were within 
meadows occupied by the butterfly or other habitat types (USFS 2008a, 
p. 27). Nevertheless, to address this situation, the Forest intends to 
limit driving to those dispersed camping sites within 30 m (100 ft) of 
an open, authorized road or trail through the Travel Management Rule 
process that will be finalized in Fiscal Year 2009 (USFS 2009c; p. 1; 
2009d, p. 1). This action would prohibit the use of a motorized vehicle 
to access 305 of the 477 of the dispersed camping sites on the 
Sacramento Ranger District that are currently beyond the 30-m (100-ft) 
distance (USFS 2008a, p. 27). This change will lessen the chances of 
individual butterflies and their food plants being harmed from these 
activities. We believe this process will further protect butterflies 
and food plants from deleterious effects of motorized vehicles and 
camping.
    In our 2004 withdrawal of the proposed rule, we discussed increased 
efforts by the USFS to reduce impacts to the butterfly from dispersed 
camping and camping at established campgrounds. Although the 
petitioners acknowledge that the USFS has taken measures to reduce 
recreational impacts to the butterfly at established campgrounds, they 
claim that increased camping can result in harm to the butterfly. We 
have no information to indicate that camping has increased since 2004 
in habitats occupied by the butterfly. The USFS reduced capacity within 
Deerhead Campground by 20 percent and intends to reduce the capacity of 
Sleepygrass Campground by 12 percent (removal of 21 campsites, 27 
picnic locations, and 8 toilets) within occupied butterfly habitat by 
2012 (USFS 2005a, p. 5; 2008c, pp. 13-14). Since 2004, they have also 
reduced the amount of disturbance within occupied butterfly habitat in 
Black Bear, Slide, Aspen, and Deerhead campgrounds (USFS 2005a, pp. 2-
4; 2009a; 2009b, p. 1). These actions have included restricting access 
to occupied butterfly habitat, and surveying and moving larvae in three 
campgrounds prior to capital improvements that redesigned camping 
facilities to reduce the number of campers and remove picnic tables 
(Service 2005; 2005b, p. 11; USFS 2003, 2009a). Similar improvements to 
butterfly habitat within Sleepygrass Campground have not yet been 
initiated but will likely be initiated this year and be completed by 
2012 (USFS 2008c, p. 14; 2009d, p. 1). When the project within 
Sleepygrass Campground is complete, all eight of the campgrounds that 
contain occupied butterfly habitat will have improved, thereby 
resulting in significantly fewer impacts to the species than in 2001. 
We are not aware of any information that supports the contention that 
camping-related impacts to the butterfly or its habitat have increased 
or are likely to do so in the foreseeable future. We do not believe 
that camping-related activities will result in significant population-
level impacts to the butterfly. Therefore, we do not consider 
disturbance related to camping or campgrounds to be a threat to the 
butterfly now or in the foreseeable future.
Mountain Biking
    In our 2004 withdrawal of the proposed rule, we acknowledged that 
butterfly larvae were known to occur on and adjacent to mountain bike 
trails, and we reviewed efforts routinely made by the USFS to address 
potential impacts to the butterfly, including surveys and either 
avoiding or moving larvae during large events, such as mountain bike 
races (69 FR 76428; December 21, 2004). We concluded that, while 
mountain biking does affect the butterfly and its food plants to some 
extent, it did not appear that the impacts were likely significant to 
the butterfly. The petitioners do not present information that impacts 
from mountain biking have increased in habitats occupied by the 
butterfly, and we have no information that such impacts have increased 
since 2004. Consequently, based on the best available information, we 
find that mountain biking is not a threat to the butterfly currently or 
in the foreseeable future.
Powerlines and Other Small-Scale Impacts
    The petitioners discuss the impacts of powerlines and other small-
scale impacts by comparing our discussion of those impacts in our 2004 
withdrawal of the proposed rule (69 FR 76428; December 21, 2004) to our 
discussion of those impacts in our 2001 proposed rule (66 FR 46575; 
September 6, 2001). The USFS has committed to continuing the use of 
seasonal restrictions, surveying and moving larvae, or placing 
avoidance buffer areas around larvae to avoid or minimize impacts to 
the butterfly when the USFS is planning and implementing projects (USFS 
2008e, p. 36; 2009a). As noted below, some temporary impacts to food 
plants and habitat have occurred, but we believe these restrictions 
have significantly reduced impacts on the butterfly. In a letter from 
the Forest Supervisor, the USFS expressed a commitment to measures 
aimed at minimizing potential impacts to the butterfly from activities 
within the purview of their authority as a land

[[Page 45401]]

management agency (USFS 2009a, p. 1). Because the USFS continues to 
carefully monitor and coordinate with the Service, we believe these 
stipulations (the use of seasonal restrictions, surveying and moving 
larvae, and placing avoidance buffer areas around larvae) will continue 
to be adequate to minimize potential impacts to the butterfly.
    Since the Service's withdrawal of the proposed rule, we are aware 
of the following project-related impacts on USFS lands: Village of 
Cloudcroft waterline (2.8 ha (6.8 ac) of temporary impacts); Pines 
Campground water repair (0.04 ha (0.1 ac) of temporary impacts); Cox 
Canyon Powerline (3.1 ha (7.6 ac) of temporary impacts); mowing along 
Highway 82 (1.2 ha (2.9 ac) of temporary impacts), and Silver Springs 
Powerline (1.1 ha (2.8 ac) of temporary impacts) (USFS 2007a, p.1). 
These projects were all completed within the growing season and 
revegetated the following year with host plants (Service 2004b). We are 
also aware that up to about 2.8 ha (7 ac) of habitat may be temporarily 
impacted by a recent proposal to salvage logs (USFS 2008e, p.42). 
Previous monitoring found that small temporary disturbances to 
butterfly habitat, such as from dragging a salvaged log through a 
meadow occupied by the butterfly, naturally revegetated with native 
plants in one growing season (USFS 2002a, p. 1; Service 2004b). We have 
found that small-scale temporary impacts to the butterfly and its 
habitat do not appear to affect the viability of the species because it 
continues to be found in the area, although we do not know whether the 
butterfly population in the area is increasing or decreasing. We do not 
consider this level of limited take of individuals or temporary 
disturbance of habitat to be a significant threat to the butterfly. In 
our withdrawal, we acknowledged that, although some restrictions were 
likely to be placed on ground-disturbing projects (such as when 
constructing a new powerline), the nature of these impacts and the 
recognition that adjacent habitat will remain intact enabled us to 
conclude that the activity represented only a limited threat to the 
species (69 FR 73428). We believe this is still the best available 
information. The current level of impact is not a threat to the 
butterfly. We have no information or reason to believe that this level 
of impact will increase in the foreseeable future.
Cattle Grazing
    The petitioners claim that livestock grazing continues to threaten 
butterfly habitat. In our 2004 withdrawal of the proposed rule, we 
found that, because the USFS is managing allotments for medium-
intensity grazing, the effects on the butterfly and its habitat would 
be minimal and would not result in the butterfly population being 
compromised (69 FR 76428). We concluded that the current and future 
occurrence of grazing does not represent a principal factor in the 
viability of the butterfly and its habitat. The petitioners presented 
some new information about cattle grazing in their comments on the 2008 
90-day finding. We review this and other new information below.
    The USFS monitors and manages allotments to maintain a minimum of 
10 cm (4 in) end-of-season stubble height, which generally equates to 
35 percent forage utilization (Holechek and Galt 2000, p. 13; USFS 
2004c, 2009f). The USFS manages cattle allotments consistent with 
existing range management standards and guidelines under its Forest 
Plan, and when management adjustments are necessary to meet the forage 
levels, adjustments are made through the permit administration process 
(USFS 2004d). Moreover, the USFS manages and protects long-term range 
conditions consistent with their range management regulations (for 
example, see 36 CFR 222) (USFS 2004c).
    In our December 21, 2004, withdrawal (69 FR 76428), we found that 
cattle grazing is compatible with conservation of the butterfly because 
the USFS is currently and will continue to manage its allotments that 
are occupied by butterflies for moderate-intensity grazing (10-cm end-
of-season stubble height or 35-percent forage utilization or both). 
Although we also acknowledged that grazing can incidentally kill 
butterflies through trampling or accidental ingestion of larvae or eggs 
(for example, see Pittenger and Yori 2003; White 1986), and anticipated 
such effects are occurring within allotments that overlap with occupied 
butterfly habitat, we found that these effects were minimal and did not 
result in the butterfly population being compromised. Although the 
relationship between cattle grazing and the butterfly is not completely 
clear, as analyzed below, we continue to affirm that butterflies 
persist within allotments under a moderate-intensity grazing regime.
    The petitioners presented information on five allotments: CC 
Walker, Sacramento, Russia Canyon, James Canyon, and Pumphouse. They 
claim that forage overutilization in CC Walker, Sacramento, and Russia 
Canyon Allotments indicates severe rangeland deterioration within 
butterfly habitat. However, the butterfly has never been detected 
within the CC Walker Allotment (USFS 2004a, map; USFS 2009a). 
Additionally, as we detailed in the withdrawal of the proposed rule in 
2004, no livestock grazing occurs in the portion of the Sacramento 
Allotment occupied by the butterfly, because the meadows are bounded by 
steep canyons that are inaccessible to cattle (Service 2004a, pp. 1-2). 
For these reasons, we conclude that no impacts are occurring to the 
butterfly within the CC Walker and Sacramento Allotments.
    The butterfly occurs only within about 7.2 ha (17 ac) of the Russia 
Canyon Allotment (USFS 2004e). That allotment has two permittees. One 
is permitted for 6 head of cattle from May 16 to October 31 (USFS 
2007c, p. 61); the other is permitted for 32 head from May 16 through 
October 31 (USFS 2007c, p. 61). We reviewed information collected 
between 2001 and 2008 from the Russia Canyon Allotment and find that 
the authorized minimum 10-cm (4-in) end-of-season stubble heights 
(i.e., grazing standards) have generally not been exceeded (WildEarth 
Guardians 2009, Attachment 2; USFS 2009f, p. 1). Therefore, severe 
rangeland deterioration is not occurring within butterfly habitat on 
the Russia Canyon Allotment (WildEarth Guardians 2009, Attachment 2; 
USFS 2009f, p. 1). Moreover, the butterfly continues to persist within 
the grazed area of this allotment (Service 2009). Additionally, after 
reviewing monitoring data that demonstrate the consistent application 
of the authorized moderate-intensity grazing standards on the Russia 
Canyon Allotment, we continue to find that some minor impacts are 
likely occurring from trampling of larvae by cattle and ingestion of 
food plants, but we do not consider these to be a significant threat to 
the butterfly or its habitat currently or in the foreseeable future, 
because the USFS has been monitoring and managing this allotment to 
attain the moderate-intensity standards, while butterflies continue to 
persist in this area. In 2004, we concluded that this management 
strategy will ensure larval and adult food plants are maintained. The 
new information we reviewed is consistent with our previous conclusion. 
We continue to find that cattle grazing is not a significant threat to 
the butterfly now or in the future.
    The petitioners cite a statement in the Conservation Plan that the 
James Canyon Allotment will be reopened to grazing in 2007 (WildEarth 
Guardians 2009, p. 5; Service et al. 2005, p. 29). The Conservation 
Plan foreshadowed the opening of parts of the James Allotment by 2007 
but also indicated

[[Page 45402]]

the Forest may leave one pasture ungrazed for the conservation of the 
butterfly (Service et al. 2005, p. 29). In 2005, the Forest analyzed an 
alternative to permanently close 2,751 ha (6,878 ac) to livestock 
grazing within the center of the allotment but did not finalize the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.) 
decision. The remaining 2,655 ha (6,561 ac) occur within the Beard (837 
ha (2,068 ac)), Zinker (984 ha (2,432 ac)), and Bailey (834 ha (2,061 
ac)) pastures. This alternative would have used a deferred rotation 
grazing system, whereby livestock are moved through three pastures 
during the grazing season to maintain forage utilization between 30 and 
40 percent and stubble heights of at least 11.4 cm (4.5 in) (USFS 
2004f, p. 1). Of these pastures, the Beard pasture is outside of the 
known range of the butterfly (USFS 2004a, map 1; 2004f, map 1), whereas 
Zinker and Bailey pastures contain occupied butterfly habitat. Under 
this alternative, 67 percent (8,946 of 13,439 acres) of the allotment 
(5,376 ha) would be either outside the known range or closed to 
livestock grazing (USFS 2004f; Service et al. 2005, p. 29).
    The USFS anticipates updating its NEPA analysis for the James 
Allotment in 2010 (USFS 2009f, p. 1). It intends to carry the same 
alternative forward that was analyzed in 2005 but not finalized, along 
with any other alternatives that may develop through the scoping 
process (USFS 2009f, p. 1). As part of this process, we intend to 
provide information to the USFS and encourage the selection of the same 
alternative that was developed in 2005 or an even more conservative 
alternative for the butterfly. The goal would be to minimize impacts to 
the butterfly by managing this allotment to attain a moderate or lower 
level of grazing and eliminate impacts to the butterfly by closing some 
areas to grazing.
    There is currently no authorized grazing within James allotment, 
which has been the case since 1995 (USFS 2009f, p. 2). Similar to other 
USFS allotments, it is likely that a new term permit for the James 
Allotment will propose an end-of-the-season stubble height of 10 cm (4 
in) or a forage utilization level of 35 percent (2004h). As noted 
above, in 2004, we concluded that this level of moderate-intensity 
grazing was compatible with conservation of the butterfly and limited 
potential adverse effects (69 FR 76437, December 21, 2004). This is 
because the butterfly continues to persist in areas that have been 
historically and are currently grazed by cattle. We still believe this 
is the best available information.
    We recognize the USFS could analyze and choose an alternative that 
does not close any of the areas within the allotment that contain 
occupied butterfly habitat. Under such a scenario, we would envision 
that impacts to the butterfly would be increased from trampling or 
ingestion of larvae or eggs. However, based on our current 
understanding of cattle grazing, we would anticipate butterflies would 
continue to persist within areas that are grazed at moderate intensity. 
Nevertheless, during the NEPA process, we intend to encourage the USFS 
to permanently close occupied butterfly habitat to cattle grazing in 
order to provide the greatest conservation benefit. We believe this 
would exemplify the USFS' commitment under the Conservation Plan to 
conserve and manage the species (Service et al. 2005).
    The Pumphouse Allotment also contains suitable and occupied 
butterfly habitat that is open to livestock grazing and is managed to 
maintain moderate-intensity forage utilization between 30 and 40 
percent (USFS 2005b, p. 1; 2009f, p. 1). We found that this level of 
livestock grazing would have insignificant and discountable effects to 
the plants that compose a part of Mexican spotted owl (Strix 
occidentalis lucida) critical habitat within meadows because the USFS 
would ensure forage standards were not violated (Service 2006, p. 1). 
These areas of critical habitat also contain butterfly food plants and 
habitat. Although livestock grazing within occupied butterfly habitat 
creates the potential for impacts to the species through trampling and 
loss of larval food plants, the USFS conducted regular monitoring and 
demonstrated that authorized grazing standards were annually attained 
(USFS 2004f, pp. 18-19; 2005b, p. 1; 2009f, p. 1). The USFS manages 
this and other allotments consistent with existing range management 
standards and guidelines under its Forest Plan, and when management 
adjustments are necessary to meet the forage levels, adjustments can be 
made through the permit administration process (USFS 2004g, p. 3, 
2004d, p. 2, Service et al. 2005, p. 49; 69 FR 76437, December 21, 
2004). Similar to the Russia Allotment discussed above, we reviewed 
data from 2001 to 2008 and find the minimum end-of-season stubble 
heights of greater than 10 cm (4 in) were maintained within the 
Pumphouse Allotment, and butterflies continue to persist in this area 
(WildEarth Guardians 2009, Attachment 2; USFS 2009f, p. 1; 2009a). We 
continue to believe that this level of forage utilization is compatible 
with the butterfly now and in the foreseeable future.
    Based on our review of this information, we find that, at current 
and predicted future livestock grazing levels within habitat occupied 
by the butterfly, there is not sufficient evidence to conclude that the 
subspecies is threatened. We have no evidence from any allotments that 
indicates ongoing livestock grazing affects the butterfly to such an 
extent that it would be likely to become endangered within the 
foreseeable future. USFS management of livestock allotments that are 
currently occupied by the butterfly is based on systematic vegetation 
monitoring in key areas to ensure the moderate intensity standards are 
attained. Forage utilization or stubble heights or both are measured by 
key area on key forage species within various pastures encompassing a 
grazing allotment. Key areas are locations readily accessible to water 
and forage and are located on level to intermediate slopes. Key species 
are herbaceous and woody vegetation that livestock prefer at any given 
time of the year, some of which are likely butterfly food plants. By 
monitoring key areas, the USFS ensures that an allotment or pastures 
within an allotment are not overgrazed. However, if forage utilization 
levels or stubble heights in a key area are reached, livestock can be 
moved out of that portion of a pasture, out of a pasture altogether, or 
off the entire allotment. This type of flexibility in range management 
operations is directed by USFS policy in using adaptive management (FSH 
2209.13, Chapter 90) and is enforced through monitoring of allotments. 
This process generally limits exceeding utilization standards or 
stubble heights or both, and we believe it has and will continue to 
ensure the continued existence of the butterfly and its habitat.
    Based on our review of these data, we conclude that the current and 
future occurrence of grazing does not represent a principal factor in 
the viability of the butterfly and its habitat, although the larval 
food plant Penstemon neomexicanus is likely routinely grazed upon by 
cattle. It was previously recognized that livestock grazing has the 
potential to impact the butterfly directly through trampling or 
ingestion of individuals and indirectly through the reduction in ground 
cover (Service et al. 2005, pp. 29-30). We continue to believe this is 
accurate, but have determined that USFS management and monitoring of 
livestock grazing standards on all allotments within the range of the 
butterfly are compatible with the

[[Page 45403]]

continued existence of the species. Although the potential for impacts 
to the butterfly exists, our review found no information indicating 
that livestock grazing significantly affects the status of the 
butterfly now or will do so in the foreseeable future. Therefore, we 
conclude that livestock grazing is not a significant threat to the 
butterfly.
Trespass Horses
    In the withdrawal of the butterfly proposed rule, we noted trespass 
(feral) horses occurred within butterfly habitat in the northern 
portion of the Sacramento Ranger District (69 FR 76428; December 21, 
2004). We found that these horses have the potential to affect the 
butterfly and its food plants, but horses were considered a low threat 
because they occur in a limited number of meadows in the James 
Allotment (Service et al. 2005, p. 49; USFS 2004f, pp. 18-19; USFS 
2004g. p. 1). We also noted that the USFS committed in the Conservation 
Plan to removing the feral horses from the James Allotment. The USFS 
recently followed through on its commitment and removed feral horses 
from this area (Service et al. 2005, p. 49; USFS 2004c, p. 1; 2008f, p. 
1). Although we continue to view feral horses as a low threat, the 
removal will benefit the butterfly and its habitat.
Fire
    In addressing the threat of fire suppression and wildfire, the 
petitioners compare the analysis used in our September 6, 2001, 
proposed rule (66 FR 46575) to our analysis in the withdrawal of the 
proposed rule (69 FR 76428; December 21, 2004). The discussion and 
analysis related to wildfire and the butterfly in the withdrawal of the 
proposed rule are still the best available information that we have. In 
our withdrawal, we used information from the USFS, assessed new and 
continued efforts to reduce the risk of catastrophic wildfire in the 
Sacramento Mountains, and concluded that the threat to the butterfly 
from catastrophic wildfire had been reduced and was no longer 
significant (see also Service et al. 2005, pp. 21-25). For example, the 
areas where the larval host plant grows tend to lack continuous fine 
fuels that would effectively carry a fire (Service et al. 2005, p. 21). 
Moreover, we found that fire and activities conducted to reduce the 
risk of fire may be beneficial by increasing connectivity between areas 
of suitable butterfly habitat. Since 2004, the USFS has continued 
efforts to reduce the risk of wildfire (USFS 2007c, pp. 21-24). 
Increases in fuels management actions have been funded and implemented, 
and these activities will continue for the foreseeable future (USFS 
2009i). Within the last 5 years the USFS has accomplished a substantial 
fuels reduction work within 1 mile of the Village of Cloudcroft (e.g., 
see USFS 2007c, p. 33). Approximately 1,216 ha (3,005 ac) have received 
at least one, if not several, treatments, which include pre-commercial 
thinning, commercial timber harvest, mastication (shredding of felled 
trees), prescribed burns, and logging (USFS 2002b, 2004h, 2004i, 2004j, 
2007b, 2007c, 2009g). As a result, the reduction of tree density, 
disposal of the resulting woody debris and appropriate use of 
prescribed fire will not only improve forest health, but also greatly 
reduce the probability of bark beetle outbreaks and decrease the risk 
of wildfire (USFS 2004k, p. 2).
    Climate change may have an impact on wildfire. In a recent study, 
Westerling et al. (2006, p. 943) found that increased wildfire activity 
is at least partially the result of a changing climate and a resulting 
longer wildfire season, although the southwestern forests were less 
affected by changes in the timing of spring than forests of the 
northern Rocky Mountains. Other authors have described similar patterns 
of increased fires or risk of fires (Schoennagel et al. 2004; Running 
2006). Nevertheless, any attempt to describe the relationship between 
climate change and the probability of butterfly habitat 
catastrophically burning is problematic, given that the scale of these 
studies is too large for us to draw any firm conclusions at the local 
scale within the range of the butterfly. On this basis, we conclude 
that the threat of wildfires has not increased within the range of the 
butterfly since our 2004 withdrawal of the proposed rule. For these 
reasons, we do not consider wildfire a significant threat to the 
species now or in the foreseeable future.
Noxious Weeds
    The petitioners assert that the manual weed-pulling program to 
control noxious weeds does not fully address the threat of noxious 
weeds to the butterfly. The USFS began the weed-pulling program in 
2001, and the program is described in the Conservation Plan (Service et 
al. 2005, p. 34). In our 2004 withdrawal of the proposed listing (69 FR 
76428), we found that nonnative vegetation and the application of 
herbicides are currently being managed, and we concluded that the 
nonnative vegetation is a not a significant threat to the butterfly. 
There is no information available to suggest that nonnative or noxious 
weeds are or will become a threat to the Sacramento Mountains 
butterfly.
    In summary, we have no information to indicate that any of the 
following are significant threats to the subspecies: Development; 
recreation; projects such as roads, powerlines, and other small-scale 
impacts; cattle or feral horse grazing; wildfire; and noxious weeds. On 
the basis of the information presented above, we find the present or 
threatened destruction, modification, or curtailment of the habitat or 
range of the butterfly is not a threat now and we do not foresee that 
it will be in the future.

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

    The petitioners believe that collection threatens the butterfly, 
reiterating our preliminary finding from the 2001 proposed rule that 
the butterfly's life history characteristics, attractiveness to 
collectors due to rarity, and newspaper publications promote collection 
(66 FR 46575). In our 2004 withdrawal, we concluded that the closure of 
USFS lands to butterfly collecting in 2000 had reduced the threat of 
overcollection and that this threat was no longer significant. We did 
not receive any new information or any explanation as to why the 
butterfly is threatened by collection now or in the future. Likewise, 
we have no new information on the potential threat of overcollection 
since the 2004 withdrawal. We do not have any recent evidence of risks 
to the butterfly from overutilization for commercial, recreational, 
scientific, or educational purposes, and we have no reason to believe 
this factor will become a threat to the species in the future. 
Therefore, we find overutilization for commercial, recreational, 
scientific, or educational purposes does not threaten the butterfly now 
or in the foreseeable future.

C. Disease or Predation

    We are not aware of any information indicating that disease or 
predation threaten the butterfly. Therefore, we find that disease and 
predation are not threats to the butterfly now or in the foreseeable 
future.

D. Inadequacy of Existing Regulatory Mechanisms

    The petitioners claim that new USFS regulations were recently 
passed that remove any species viability standard protections that were 
previously provided in 36 CFR 219.20, a regulation requiring the USFS 
to address ecological conditions necessary to maintain species 
viability. The petition also asserts that conservation measures

[[Page 45404]]

resulting from section 7 (of the Act) conferencing no longer apply 
because the species is no longer proposed for listing. Additionally, 
the petitioners assert that the butterfly has no State protection, as 
New Mexico does not recognize insects as ``wildlife.''
USFS Protections
    The butterfly has been designated by the Regional Forester as a 
Forest sensitive species. Under this designation, the USFS currently 
analyzes all planned, funded, executed, or permitted programs and 
activities for possible effects to the species (USFS 2008e and 2009a; 
2009h, p. 3). Sensitive species receive special management emphasis to 
ensure their viability and to preclude trends toward endangerment that 
would result in the need for Federal listing (USFS 2009h, p. 3). As a 
current Forest sensitive species, the butterfly is included in impact 
analyses by the USFS in all applicable NEPA documents to ensure its 
continued viability and preclude the need for Federal listing.
    On April 21, 2008, a new USFS planning rule (73 FR 21468) was made 
final. However, on June 30, 2009, the United States District Court for 
the Northern District of California issued a decision in Citizens for 
Better Forestry v. United States Department of Agriculture, No. C 08-
1927 CW (N.D. Cal. June 30, 2009). The court enjoined the USFS from 
implementing and using the 2008 planning rule and remanded the matter 
to them for further proceedings. The Government has not yet determined 
whether to appeal the District Court's June 30, 2009, decision to the 
Ninth Circuit Court of Appeals. Nevertheless, on July 15, 2009, the 
USFS issued legal guidance that the planning rule from November 9, 2000 
(65 FR 67514) is now in effect (USFS 2009l). As a result, the 
information on the management and protection of the butterfly on public 
lands presented in the withdrawal for the butterfly (69 FR 76428; 
December 21, 2004) is still the best available information that we 
have. The intent of the Regional Forester's sensitive species 
designation is to provide a proactive approach to conserving species to 
prevent a trend toward listing under the Act, and to ensure the 
continued existence of viable, well-distributed populations.
    The USFS policy (FSM 2670.3) states that Biological Evaluations 
(BEs) must be completed for sensitive species and signed by a journey-
level biologist or botanist. The Lincoln National Forest will continue 
developing BEs and conducting NEPA analyses for each project that will 
affect the butterfly or its habitat. This analysis will ensure that 
projects do not singularly or cumulatively impact the butterfly to such 
an extent that the species would require Federal listing. Through this 
process, the USFS will analyze specific project proposals to ensure 
that the actions being contemplated are consistent with any specific 
guidelines and standards for the butterfly under the current or a 
future revised LRMP. In practice, the USFS has taken actions to 
conserve and avoid impacts to sensitive species, including the 
butterfly and its habitat (see USFS 2004a, 2004c, 2007c, 2007d, 2007e, 
2009a). This NEPA analysis process has been adequate to protect the 
butterfly. Under the current legal guidance, this oversight and 
protection will continue under the LRMP and when it is revised (UFSF 
2009l).
    In summary, because the USFS had some authority and regulations in 
place as we reviewed in our 2004 withdrawal and will continue such 
efforts into the future, we find these efforts contribute significantly 
to the adequacy of existing regulatory mechanisms.
    On the basis of this information, we believe the butterfly will 
receive protection and consideration in the future on Forest-wide and 
project-specific levels by continuing to be analyzed in all applicable 
NEPA documents. The Service's 2004 withdrawal of the proposed listing 
rule for the butterfly relied partly on the butterfly's inclusion in 
the Forest sensitive species designation for maintenance of certain 
protections for the butterfly through NEPA. Since the butterfly will 
continue to be considered a sensitive species and specific protections 
will be provided under the current or future revised LRMP, we find this 
process adequate to protect the butterfly currently and in the 
foreseeable future.
New Mexico Statute
    The petitioners state that the butterfly has no State protection, 
because New Mexico does not recognize insects as ``wildlife.'' This is 
correct. We presented information about this in the October 7, 2004, 
draft Conservation Plan for which we invited public comment (69 FR 
60178), and we considered this information when we withdrew the 
proposal to list the species.
Conservation Plan
    We signed a Memorandum of Understanding with the Village of 
Cloudcroft, Otero County, and the USFS, and cooperatively developed a 
Conservation Plan (Service et al. 2005). The Memorandum of 
Understanding demonstrates the parties' good-faith efforts to identify 
and undertake protective measures for the butterfly and its habitat, 
and it refers to the implementation schedule for specific actions, 
including time and cost estimates and responsible partners, named in 
the Conservation Plan to be undertaken to achieve its goals. The goal 
of the Conservation Plan is to provide conservation and management on 
public and private lands within the range of the butterfly (69 FR 
60178; October 7, 2004).
    Otero County has completed one of the conservation measures, 
amending its subdivision ordinance, which requires that, for any new 
subdivision to be developed within potential butterfly habitat, a 
survey be conducted for the butterfly, its habitat, and its larval host 
plant.
    The USFS is committed to continue the implementation of the 
Conservation Plan (USFS 2009a, p.1), which it has been implementing for 
the past 4 years. The Conservation Plan called for a variety of 
measures that the USFS would implement to reduce impacts to the 
butterfly, including: (1) Managing domestic livestock and controlling 
of trespass livestock; (2) managing public recreation; (3) protecting 
the butterfly from the threat of collection; (4) using best management 
practices during projects; and (5) protecting and managing butterfly 
habitat. We relied in this finding on these measures because the USFS 
has demonstrated that these conservation efforts are being implemented 
and that they are effective. Therefore, we were not required to analyze 
them under the Service's Policy for Evaluation of Conservation Efforts 
When Making Listing Determinations (68 FR 15100; March 28, 2003) 
(PECE).
    We did not rely on other conservation efforts identified in the 
Conservation Plan if they have not yet been fully or reliably 
implemented because it would require us to speculate on the certainty 
of their implementation and effectiveness. These efforts are 
concentrated on conducting research to fill in information gaps. These 
include determining the duration of larval diapause, investigating the 
influence of fire on butterfly habitat, and determining whether 
planting host plants influences butterfly occupancy (Service et al. 
2005, pp. 56-59). Therefore, we did not analyze those particular 
conservation efforts as they relate to PECE. Other conservation 
measures, investigating the influence of grazing on butterfly habitat 
and analyzing the genetics of the butterfly, are ongoing, while 
another--evaluating the effectiveness of transplanting

[[Page 45405]]

butterflies to augment or expand the range of the species--will be 
conducted in the near future (for example, McIntyre 2005, Ryan 2007, 
2009).
    We continue to support the implementation of the Conservation Plan 
and believe it has assisted in further improving the status of the 
butterfly and its habitat. For example, we have held two meetings with 
the implementation team for the Conservation Plan and provided 
technical assistance on actions proposed by team members (for example, 
avoidance of impacts from proposed insecticide spraying). The USFS has 
continued to allocate resources towards conservation efforts and 
coordinated with all parties involved with the conservation of the 
butterfly (USFS 2009a). Otero County passed the subdivision ordinance 
and, similarly, requested technical assistance on minimizing impacts 
with spraying of a forest insect outbreak (see E. Other Natural or 
Manmade Factors Affecting the Species' Continued Existence).
Private Lands
    Beyond the Otero County subdivision ordinance, we are not aware of 
any specific prohibition on private lands to limit or avoid the 
destr