Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List Hermes Copper Butterfly as Endangered or Threatened, 20918-20939 [2011-9028]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Proposed Rules]
[Pages 20918-20939]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9028]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0031; MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List Hermes Copper Butterfly as Endangered or 
Threatened

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 a 
12-month finding on a petition to list Hermes copper butterfly 
(Hermelycaena [Lycaena] hermes) as endangered and to designate critical 
habitat under the Endangered Species Act of 1973, as amended (Act).
    After review of all available scientific and commercial 
information, we find that listing Hermes copper butterfly as endangered 
or threatened is warranted. Currently, however, listing Hermes copper 
butterfly is precluded by higher priority actions to amend the Lists of 
Endangered and Threatened Wildlife and Plants. Upon publication of this 
12-month petition finding, we will add Hermes copper butterfly to our 
candidate species list. We will develop a proposed rule to list Hermes 
copper butterfly as our priorities allow. We will make any 
determination on critical habitat during development of the proposed 
listing rule. During any interim period, we will address the status of 
the candidate taxon through our annual Candidate Notice of Review 
(CNOR).

DATES: The finding announced in this document was made on April 14, 
2011.

ADDRESSES: This finding is available on the Internet at https://www.regulations.gov at Docket Number FWS-R8-ES-2010-0031. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the 
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Please submit any 
new information, materials, comments, or questions concerning this 
finding to the above internet address or the mailing address listed 
under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish

[[Page 20919]]

and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley 
Road, Suite 101, Carlsbad, CA 92011; by telephone at 760-431-9440; or 
by facsimile at 760-431-9624. If you use a telecommunications device 
for the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

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

Previous Federal Actions

    On October 26, 2004, we received a petition dated October 25, 2004, 
from the Center for Biological Diversity (CBD) and David Hogan, 
requesting that Hermes copper butterfly be listed as endangered under 
the Act and that critical habitat be designated. Included in the 
petition was supporting information regarding the species' taxonomy, 
biology, ecology, historical and current distribution, status of 
population, and actual and potential threats affecting the species and 
its habitat.
    On August 8, 2006, we published a 90-day finding for Hermes copper 
butterfly in the Federal Register (71 FR 44966). The finding concluded 
that the petition and information in our files did not present 
substantial scientific or commercial information indicating that 
listing Hermes copper butterfly may be warranted. For a detailed 
history of Federal actions involving Hermes copper butterfly prior to 
the 2006 90-day finding, please see the August 8, 2006, Federal 
Register finding (71 FR 44966).
    On March 17, 2009, CBD and David Hogan filed a complaint for 
declaratory and injunctive relief challenging the Service's decision 
not to list Hermes copper butterfly as endangered or threatened under 
the Act. In a settlement agreement dated October 23, 2009, (Case No. 
09-0533 S.D. Cal.), the Service agreed to submit a new 90-day petition 
finding to the Federal Register by May 13, 2010, for Hermes copper 
butterfly. As part of the settlement agreement, we agreed to evaluate 
the October 25, 2004, petition filed by CBD and David Hogan, supporting 
information submitted with the petition, and information available in 
the Service's files, including information that has become available 
since the August 8, 2006, publication of the negative 90-day finding 
(71 FR 44966). If the 90-day finding determined that listing may be 
warranted, we agreed to submit a 12-month finding for Hermes copper 
butterfly to the Federal Register by April 15, 2011.
    On May 4, 2010, we published a 90-day finding in the Federal 
Register (75 FR 23654) that determined listing of Hermes copper 
butterfly as endangered or threatened may be warranted. This notice 
constitutes the 12-month finding on the October 25, 2004, petition to 
list Hermes copper butterfly as endangered.

Species Information

    It is our intent to discuss only those topics directly relevant to 
the listing of Hermes copper butterfly under the Act in this 12-month 
finding. For more information on the taxonomy, biology, and ecology of 
Hermes copper butterfly, please refer to the 90-day finding published 
in the Federal Register on May 4, 2010 (75 FR 23654). That document is 
available on the Internet at https://www.regulations.gov under docket 
number FWS-R8-ES-2010-0031.

Taxonomy and Species Description

    Hermes copper butterfly was first described as Chrysophanus hermes 
by Edwards (1870, p. 21). Scudder (1876, p. 125) placed this species in 
the genus Tharsalea based on the presence of hindwing tails. Freeman 
(1936, p. 279) placed Hermes copper butterfly in the genus Lycaena as 
L. hermes based on the assessment of the male genetalia, finding that 
L. hermes was distinctly a lycaenid and not typical of the other taxa 
of Tharsalea. Miller and Brown (1979, p. 22) erected a monotypic genus 
to accommodate Hermes copper butterfly as Hermelycaena hermes. This 
segregation appears to be supported by allozyme data presented by Pratt 
and Wright (2002, p. 223); although these authors did not recommend 
separate genus or subgenus placement (Pratt and Wright 2002, p. 225). 
The broadly based morphological assessment of Miller and Brown (1979) 
coupled with the more recent allozyme work of Pratt and Wright (2002) 
support recognition of Hermes copper butterfly as a distinct genus; 
however, Lycaena hermes is the name predominantly used in recent 
literature (Scott 1986, p. 392; Faulkner and Brown 1993, p. 120; Emmel 
1998, p. 832; Opler and Warren 2005, p. 22), and we recognize it as 
such for the purposes of this finding. Any data or information relevant 
to the taxonomic status of Hermes copper butterfly will be fully 
addressed in any proposed rule, and as such will be available for 
public comment. However, there is no question that as a unique species, 
Hermes copper butterfly is a listable entity under the Act.
    Hermes copper butterfly is a small, brightly-colored butterfly 
approximately 1 to 1.25 inches (2.5 to 3.2 centimeters (cm)) in length, 
with one tail on the hindwing. On the upperside, the forewing is brown 
with a yellow or orange area enclosing several black spots, and the 
hindwing has orange spots that may be merged into a band along the 
margin. On the underside, the forewing is yellow with four to six black 
spots, and the hindwing is bright yellow with three to six black spots 
(USGS 2006). Mean last instar (period between molts) larval body length 
is 0.6 inches (in) (15 millimeters (mm)) (Ballmer and Pratt 1988, p. 
4). Emmel and Emmel (1973, pp. 62, 63) provide a full description of 
the early stages of the species (eggs, larvae, and pupae).

Biology

    Females deposit single eggs on Rhamnus crocea (spiny redberry) in 
the early summer, often where a branch splits or on a leaf (Marschalek 
and Deutschman 2009, p. 401). Eggs overwinter, with larvae reported 
from mid-April to mid-May (Marschalek and Deutschman 2009, p. 400) 
followed by pupation on the host plant (Emmel and Emmel 1973, p. 63). 
Not much is known regarding larval biology, as this life stage is 
little-studied and extremely difficult to find in the field (Marschalek 
and Deutschman 2009, pp. 400, 401). Hermes copper butterflies have one 
flight period (termed univoltine) typically occurring in mid-May to 
early July, depending on weather conditions and elevation (Marschalek 
and Deutschman 2008, p. 100; Marschalek and Klein 2010, p. 5). 
Emergence appears to be influenced by weather;

[[Page 20920]]

however this relationship is not well understood. For example, weather 
conditions in the spring of 2010 were cool and moist and resulted in a 
late emergence; however, the spring of 2006 was hot and dry and also 
resulted in a late emergence period (Deutschman et al. 2010, p. 4). We 
have no information regarding the ability of immature life stages to 
undergo multiple-year diapause (a low metabolic rate resting stage) 
during years with poor conditions (Deutschman et al. 2010, p. 4). 
Multiple year diapause is rare and can occur in stages more advanced 
than the egg, such as pupae or larvae, after larvae have fed and 
accumulated energy reserves (Gullan and Cranston 2010, p. 169, Service 
2003, p. 8); it is less likely to occur with Hermes copper butterflies 
because they overwinter (diapause) as eggs.
    Deutschman et al. (2010, p. 8) used 145 Amplified Fragment Length 
Polymorphism (AFLP) markers to estimate fundamental Hermes copper 
butterfly population genetic parameters (i.e., polymorphism, expected 
heterozygosity, FST values, and private alleles) that 
allowed them to evaluate the magnitude of genetic differentiation 
within and among sampled populations, an indicator of dispersal ability 
(gene flow). The AFLP process was able to detect genetic differences 
among individuals, even those captured within several meters of each 
other. Deutschman et al. (2010, pp. 8-17) indicated that butterflies 
can show differentiation even when close in proximity, presumably due 
to physical barriers. Alternately, butterflies sampled at locations 
that are not close have shown little differentiation, indicating that 
butterflies can also disperse long distances under the right 
conditions. Deutschman et al. (2010, pp. 8-17) sampled at one location 
(Wildwood Glen) before and after a fire and found genetically 
differentiated groups, indicating that Hermes copper butterfly 
individuals are capable of movement between populations. Landscape 
features may enhance or restrict dispersal which overall, may have 
several implications regarding population structure and dynamics 
(Deutschman et al. 2010, p. 16). Genetic differentiation of individuals 
from proximal locations could be a result of dispersal barriers, 
genetic drift, original colonizers, or a combination of factors 
(Deutschman et al. 2010, p. 16). The genetic similarity of widely 
geographically separate sample locations indicates that recolonization 
events by females occur at much further distances than implied by 
previous studies that suggest most individuals move less than 656 ft 
(200 m) (Marschalek and Deutschman 2008, p. 102; Marschalek and Klein 
2010, p. 7). Deutschman et al. (2010, p. 16) noted the majority of 
genetically similar individuals were territorial males, so it is 
possible Hermes copper butterfly exhibits sex-biased long-distance 
dispersal by females, as has been noted for other lycaenids (Robbins 
and Small 1981, pp. 312-313). In general, Hermes copper butterflies 
have limited directed movement ability (Marschalek and Klein 2010, p. 
1), though lyceanids can be dispersed by the wind (Robbins and Small 
1981 p. 312). Deutschman et al. (2010, p. 16) analysis also showed the 
genetic composition of individuals at any location exhibited a high 
degree of temporal variability, possibly due to biotic (drift, 
dispersal) and abiotic (landscape, fire regime) influences.

Habitat

    Hermes copper butterfly inhabits coastal sage scrub and southern 
mixed chaparral (Marschalek and Deutschman 2008, p. 98). Hermes copper 
butterfly larvae use only Rhamnus crocea as a host plant (Thorne 1963, 
p. 143; Emmel and Emmel 1973, p. 62). The range of R. crocea extends 
throughout coastal northern California, as far north as San Francisco 
(Consortium of California Herbaria 2010); however, Hermes copper 
butterfly has never been documented north of San Diego County (Carlsbad 
Fish and Wildlife Office (CFWO) GIS database). Therefore, some factor 
other than host plant availability apparently has historically limited 
or currently limits the range of the species. Researchers report adults 
are rarely found far from R. crocea (Thorne 1963, p. 143) and take 
nectar almost exclusively from Eriogonum fasciculatum (California 
buckwheat) (Marschalek and Deutschman 2008, p. 5). The densities of 
host plants and nectar sources required to support a Hermes copper 
population are not known. Recent research has not added much to 
Thorne's (1963, p. 143) basic description of Hermes copper butterfly 
habitat: ``It is very difficult to analyze the complex factors which 
determine why a certain plant has been successful in a given spot * * * 
In the case of Rhamnus crocea, the only consistent requirement seems to 
be a well-drained soil of better than average depth, yet not deep 
enough to support trees. Such soils occur along canyon bottoms and on 
hillsides with a northern exposure; therefore, it is in these 
situations that [Hermes copper butterfly] is generally found.''
    Hermes copper butterflies exhibit a preference for micro-sites 
within stands of Rhamnus crocea, which may be related to temperature 
because adults become active around 72 degrees Fahrenheit ([deg]F) (22 
degrees Celsius ([deg]C)) (Marschalek and Deutschman 2008, p. 5). 
Marschalek and Deutschman (2008, p. 3) recorded densities of Hermes 
copper butterflies on paired transects along edges and within the 
interior of host plant stands in rural areas. Their study indicates 
that Hermes copper butterfly densities are significantly higher near 
host plant stand edges than in the interior (Marschalek and Deutschman 
2008, p. 102). Adult males have a strong preference for openings in the 
vegetation, including roads and trails, specifically for the north and 
west sides of canopy openings (Marschalek and Deutschman 2008, p. 102). 
These areas capture the first morning light and reach the temperature 
threshold for activity more quickly than other areas (Deutschman et al. 
2010, p. 4). Hermes copper butterflies tend to remain inactive under 
conditions of heavy cloud cover and cooler weather (Marschalek and 
Deutschman 2008, p. 5). Across all four sites sampled by Marschalek and 
Deutschman, Hermes copper butterfly presence was positively associated 
with Eriogonum fasciculatum, but negatively associated with Adenostema 
fasciculatum (chamise) (Marschalek and Deutschman 2008, p. 102). 
Therefore, woody canopy openings with a northern exposure in stands of 
R. crocea and adjacent stands of Eriogonum fasciculatum appear to be 
components of suitable habitat for Hermes copper butterfly.
    Marschalek and Klein (2010) studied intra-habitat movement of 
Hermes copper butterflies using mark-release-recapture techniques. They 
found the highest median dispersal distance for a given site in a given 
year was 146 ft (44.5 m), and their maximum recapture distance was 0.7 
miles (mi) (1.1 kilometers (km)) (Marschalek and Klein 2010, p. 1). 
They also found no adult movement across non-habitat areas, such as 
type-converted grassland or riparian woodland (Marschalek and Klein 
2010, p. 6). Hermes copper butterfly is typically relatively sedentary 
(Marschalek and Klein 2010, p. 1), although winds may aid dispersal 
(Robbins and Small 1981, p. 312). Studies to date infer that most 
individuals typically move less than 656 ft. (200 m) (Marschalek and 
Deutschman 2008, p. 102, Marschalek and Klein 2010, pp. 725-726), 
supporting the assumption that Hermes copper butterflies are typically 
sedentary

[[Page 20921]]

compared to other butterfly species such as painted ladies--(Vanessa 
cardui). However, as discussed above, genetic research indicates that 
females may disperse longer distances than males (Deutschman et al. 
2010, p. 16) contradicting previous methods used such as mark-release-
recapture (Marschalek and Deutschman 2008, p. 102) that may not detect 
the movement of females and over sample territorial males. More 
information is needed to fully understand movement patterns of Hermes 
copper butterfly; however, dispersal is likely inhibited by lack of 
available habitat in many areas (Deutschman et al. 2010, p. 17).

Range and Population Distribution Status

    Hermes copper butterfly is endemic to the southern California 
region, primarily occurring in San Diego County, California (Thorne 
1963, p. 143). All records of Hermes copper butterflies in the United 
States are within San Diego County, with most occurrences concentrated 
in the southwest portion of the County (Marschalek and Klein 2010, p. 
4). Notable exceptions to the ``southwestern distribution pattern'' are 
two old museum specimens collected in north San Diego County, one from 
the vicinity of the community of Bonsall in 1934, and another from the 
vicinity of the community of Pala in 1932. Historical data indicate 
Hermes copper butterflies ranged from the vicinity of the community of 
Pala, California, in northern San Diego County (CFWO GIS database) to 
approximately 18 mi (29 km) south of Santo Tomas in Baja California, 
Mexico, and from Pine Valley in eastern San Diego County to Mira Mesa, 
Kearny Mesa, and Otay Mesa in western San Diego County (Thorne 1963, 
pp. 143, 147). They have never been recorded immediately adjacent to 
the coast, and have not been found east of the western slopes of the 
Cuyamaca Mountains above approximately 4,264 ft (1,300 m) (Marschalek 
and Klein 2010, p. 4).
    The distribution of Hermes copper butterfly in Mexico is not well-
known and researchers have not explored this area (Marschalek and Klein 
2010, p. 4). Of the two museum specimens from Mexico, one collected in 
1936 was labeled ``12 miles north of Ensenada,'' and another collected 
in 1983 was labeled ``Salsipuedes'' (Marschalek and Klein 2010, p. 4). 
Assuming older specimens were usually collected relatively close to 
roads that existed at the time (Thorne 1963, p. 145), these Mexican 
locations probably were collected from approximately the same location, 
which is a popular surf destination known as Salsipuedes, located 
approximately 12 mi (19 km) north of Ensenada off the Esconica Tijuana-
Ensenada (coastal highway to Ensenada). The known distribution in 
Mexico of Rhamnus crocea is relatively contiguous with that in the 
U.S., extending to approximately 190 mi (312 km) south of the border 
into Mexico along the western Baja California Peninsula (Little 1976, 
p. 150). Hermes copper butterflies have been recorded as far south into 
Mexico as 18 mi ( 29 km) south of Santo Tomas, which is approximately 
half the distance of the extent of Rhamus crocea's Mexican range; 
(Thorne 1963, p. 143). As stated in our 2006, 90-day finding (71 FR 
44969; August 8, 2006), there have been recent discoveries (post-1993) 
of extant populations within the species' known historical range in the 
United States. These include Black Mountain, Crestridge and two 
populations on the San Diego National Wildlife Refuge. However, there 
is still uncertainty as to the distribution of Hermes copper butterfly 
within the known historical range because we have very little 
information on the status of the species in Mexico.
    A species' range can be defined at varying relevant scales of 
resolution, from maximum geographic range capturing all areas within 
the outermost record locations (coarsest scale, hereafter called 
``known historical range''), to the scale of individual population 
distributions (finest scale, hereafter called ``population 
distributions''). This concept was discussed by Thorne (1963, p. 143): 
``However within this range [Hermes copper butterfly] distribution is 
limited to pockets where the larval food plant occurs, so that the 
total area where the insect actually flies is probably not more than a 
fraction of one percent of the maximum area.''
    To more precisely determine the historical range of Hermes copper 
butterfly, we entered all Hermes copper butterfly observation records 
that had information about collection location in our GIS database, and 
mapped all observed and museum specimen records with an appropriate 
level of detail and location description. To better determine the 
geographic locations of historical Hermes copper butterfly records 
mapped by Thorne (1963, p. 147), we overlaid a transparent image of his 
map on Google Earth imagery, and scaled it appropriately to ensure that 
geographic features and community locations corresponded with those of 
the imagery. Examination of Thorne's (1963 p. 147) map expanded the 
known historical range as described by Deutschman et al. (2010, p. 3) 
to the southeast in the vicinity of the community of Pine Valley and 
Corte Madera Valley. The resulting known historical range of Hermes 
copper butterfly within the United States can be described as comprised 
of a narrow northern portion within the Central Valley and Central 
Coast ecoregions, north of Los Penasquitos Canyon and Scripps Poway 
Parkway (latitude midway between the northernmost record location and 
the international border), and a wider southern portion encompassing 
the Southern Coast, Southern Valley, and Southern Foothills ecoregions 
(see Figure 1 and Table 1 below; San Diego County Plant Atlas 2010). 
Although the distribution of Hermes copper butterfly populations in 
Mexico is not well understood, United States populations minimally 
encompass half the species' known historical latitudinal range. The 
results of our population distribution analysis indicate areas in the 
United States most likely to harbor possible extant undiscovered Hermes 
copper butterfly populations within the known historical range are 
primarily limited to a relatively narrow area within the southern 
portion of the range bordered on the north and south by the 2003 Cedar 
Fire and 2007 Harris Fire perimeters, and on the west and east roughly 
by Sycuan Peak and Long Valley (see Figure 1 and Table 1 below).

                                 Table 1--All Known Hermes Copper Butterfly Populations in the United States and Mexico
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                     Population name                                                        Extant in
     Map No.          (other names)          Last  observed           Presumed status         2000 *       Fire                Extirpated why?
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................  Elfin Forest (Onyx   2002....................  Unknown................           Y         2007  ....................................
                    Ridge)..
2................  Rancho Santa Fe      2004....................  Extirpated.............           Y         2007  Fire, Development.
                    (Del Dios).
3................  Black Mountain.....  2004....................  Unknown................           Y   ..........  ....................................
4................  Van Dam Peak         2003....................  Extirpated.............           Y   ..........  Isolation (Development).
                    (Meadowbrook).
5................  Lopez Canyon.......  2008....................  Extant.................           Y   ..........  ....................................

[[Page 20922]]

 
6................  Sycamore Canyon....  2003....................  Extirpated.............           Y         2003  Fire.
7................  North Santee         2005....................  Unknown................           Y         2003  ....................................
                    (Fanita Ranch).
8................  Mission Trails       2010....................  Extant.................           Y         2003  ....................................
                    (Mission Gorge,
                    Mission Dam).
9................  Crestridge.........  2007....................  Extirpated ***.........           Y         2003  Fire.
10...............  Anderson Truck       2003....................  Extirpated.............           Y         2003  Fire.
                    Trail.
11...............  Alpine (Wright's     2010....................  Extant.................           Y   ..........  ....................................
                    Field).
12...............  North McGinty        2010....................  Extant.................           Y   ..........  ....................................
                    Mountain.
13...............  South McGinty        2010....................  Extant.................           Y   ..........  ....................................
                    Mountain.
14...............  Los Montanas.......  2010....................  Extant.................           Y   ..........  ....................................
15...............  Rancho San Diego...  2009....................  Extant.................           Y         2007  ....................................
16...............  San Miguel Mountain  2006....................  Extirpated.............           Y         2007  Fire.
17...............  Rancho Jamul.......  2007....................  Extirpated.............           Y   2003, 2007  Fire.
18...............  North Jamul........  2004....................  Unknown................           Y         2003  ....................................
19...............  East McGinty         2001....................  Unknown................           Y   ..........  ....................................
                    Mountain.
20...............  Loveland Reservoir.  2010....................  Extant.................           Y   ..........  ....................................
21...............  Sycuan Peak........  2010....................  Extant.................           Y   ..........  ....................................
22...............  Skyline Truck Trail  2010....................  Extant.................           Y   ..........  ....................................
                    (Lawson Valley).
23...............  Lyons Peak.........  2003....................  Unknown................           Y         2007  ....................................
24...............  Hollenbeck Canyon..  2007....................  Extirpated.............           Y   2003, 2007  Fire.
25...............  Dulzura (Near        2005....................  Extirpated.............           Y   2003, 2007  Fire.
                    Marron Valley
                    Road).
26...............  Lawson Valley        2010....................  Extant.................           Y   2006, 2007  ....................................
                    (Lawson Peak).
27...............  Hidden Glen          2008....................  Extant.................           Y   ..........  ....................................
                    (Japutal Valley,
                    Lyons Valley Road).
28...............  Willows (Viejas      2003....................  Extirpated.............           Y         2003  Fire.
                    Grade Road).
29...............  North Guatay         2004....................  Unknown................           Y         2003  ....................................
                    Mountain.
30...............  North Descanso       2010....................  Extant.................           Y         2003  ....................................
                    (Wildwood Glen,
                    Descanso).
31...............  South Descanso       2010....................  Extant.................           Y         2003  ....................................
                    (Roberts Ranch).
32...............  Japutal (Japutal     2009....................  Extant.................           Y   ..........  ....................................
                    Valley).
33...............  South Guatay         2008....................  Extant.................           Y   ..........  ....................................
                    Mountain.
34...............  Hartley Peak         2010....................  Extant.................           Y         2007  ....................................
                    (Portrero).
35...............  Pala...............  1932....................  Extirpated.............  ...........  ..........  Unknown.
36...............  Bonsall............  1934....................  Extirpated.............  ...........  ..........  Unknown.
37...............  San Elijo Hills      1979....................  Extirpated.............  ...........  ..........  Development.
                    (San Marcos Creek,
                    San Elijo Road and
                    Questhaven Road).
38...............  Lake Hodges........  1982....................  Extirpated.............  ...........        2007  Fire.
39...............  Sabre Springs        2001....................  Extirpated.............           Y   ..........  Development.
                    (Poway Road and
                    395).
40...............  Miramar............  1996....................  Extirpated.............  ...........  ..........  Development.
41...............  Mira Mesa..........  Prior to 1963...........  Extirpated.............  ...........  ..........  Development.
42...............  Cowles Mountain      1973....................  Extirpated.............  ...........  ..........  Isolation.
                    (Big Rock Road
                    Park).
43...............  Kearny Mesa........  1939....................  Extirpated.............  ...........  ..........  Development.
44...............  Mission Valley       1908....................  Extirpated.............  ...........  ..........  Development.
                    (Fairmont Canyon,
                    Canyons near
                    Mission Valley).
45...............  San Diego State      1957....................  Extirpated.............  ...........  ..........  Development.
                    University (San
                    Diego State
                    College).
46...............  El Monte (El Monte   1960....................  Extirpated.............  ...........  ..........  Fire, Development.
                    Park, El Monte
                    Road).
47...............  Pine Valley........  Pre-1963................  Unknown.
48...............  Corte Madera.......  Pre-1963................  Unknown.
49...............  Tecate Peak........  1980....................  Extirpated.............  ...........        2007  Fire.
50...............  Deerhorn Valley....  1970....................  Extirpated.............  ...........        2007  Fire.
51...............  Dictionary Hill....  1962....................  Extirpated.............  ...........  ..........  Isolation (Development).
52...............  Otay Mountain        1979....................  Extirpated.............  ...........  2003, 2007  Fire.
                    (Little Cedar
                    Canyon, Otay
                    foothill).
53...............  South Otay Mesa....  Pre-1920................  Extirpated.............  ...........  ..........  Development.
54...............  Salsipuedes (12      1983....................  Unknown.
                    miles North of
                    Ensenada) **.
55...............  Santo Tomas (18      Pre-1920................  Unknown.
                    miles south of
                    Santo Tomas) **.
56...............  South Santee.......  1967....................  Extirpated.............  ...........  ..........  Development.
57...............  North Ensenada       1936....................  Unknown.
                    (Bajamar) **.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Populations with last observation prior to 2000 have lower geographic accuracy.
** Map Nos. 54, 55, and 57 are populations in Mexico that are not represented on Figure 1 in this document.
*** Extirpation was a result of high mortality from fire, followed by reduced population density. Only one male was observed in 2007, and none after
  that.


[[Page 20923]]

[GRAPHIC] [TIFF OMITTED] TP14AP11.000

    To evaluate the status of Hermes copper butterfly's current range 
and populations, we considered all available historical data and recent 
research results, including record locations (CFWO GIS databases), 
monitoring data, (Marschalek and Deutschman 2008; Marschalek and Klein 
2010), movement data (Marschalek and Deutschman 2009; Marschalek and 
Klein 2010), and data from a recent distribution study (Deutschman et 
al. 2010). To estimate the geographic population distribution of Hermes 
copper butterfly, we used all occurrence records and mapped areas 
within approximately 0.6 mi (1 km) of known observation sites. This 
distance is greater than the average recapture distance recorded by 
Marschalek and Klein (2010, p. 1), but just under the maximum recorded 
recapture distance, an approximate within-population movement distance 
further supported by Deutschman et al.'s (2010, p. 26) genetic data 
(see Habitat section above). Locations within approximately 1.2 mi (2 
km) (where 0.6 mi (1 km) movement distances overlapped) were considered 
part of the same population, unless topographic or genetic information 
indicated the possibility of barriers to movement. We used recent fire 
footprint data and aerial GIS information, in addition to the 
information referenced above, to determine which Hermes copper 
butterfly populations may be extant, extirpated, or of unknown status. 
A Hermes copper population was considered to be ``extant'' if the 
species was recorded based on recent survey records and not affected by 
recent fires. A Hermes copper population was considered to be 
extirpated if the area had been developed and no habitat remained, a 
fire footprint encompassed the area and subsequent surveys were 
negative, or if the record was very old with no recent detections. In 
some instances, we had no recent information to make a determination on 
Hermes copper butterfly's current status and it was therefore 
classified as ``unknown.'' See Figure 1 and Table 1 above for a list of 
populations and information used to determine population status.
    In summarizing the results of our analysis of Hermes copper 
butterfly's current range and population distributions (see Figure 1 
and Table 1 above), we estimated there were at least 57 known separate 
historical populations throughout the species' range since the species 
was first described. In the year 2000, 35 populations were thought to 
be extant. Since that time, 11 populations have been extirpated (2 by 
development, 1 by fire and development, 8 by fire alone) and 7 are of 
unknown status. As of 2011, of the 57 known populations, 17 Hermes 
copper butterfly populations are extant, 28 populations are believed to 
have been extirpated, and 12 populations are of unknown status. In the 
northern portion of the range, most remaining suitable habitat is 
limited to the relatively isolated and fragmented undeveloped lands 
between the cities of San Marcos, Carlsbad, and Escondido and the 
community of Rancho Santa Fe, and the habitat ``islands'' containing 
the Black Mountain and Van Dam Peak observation locations; however, no 
new populations have been discovered. In the southern portion of the 
range, all extant populations except Lopez Canyon and the southern 
portion of Mission Trails Park (both isolated from other extant 
populations by development and fire) are within

[[Page 20924]]

relatively well-connected undeveloped lands east of the City of El 
Cajon between the 2003 Cedar Fire and 2007 Harris Fire perimeters (see 
Figure 1 and Table 1 above). The Mission Trails Park population remains 
extant even after approximately 74 percent of the population area 
burned in 2003, presumably because burned areas were recolonized (after 
host plant and nectar sources regrew) by Hermes copper butterflies from 
nearby unburned areas. The best information available leads us to 
conclude that the northern portion of the species' known historical 
range has contracted or may no longer exist, and we estimate that 
approximately 27 percent of the populations within the southern portion 
of the species' known historical U.S. range that were extant in 2000 
have been extirpated (see Figure 1 and Table 1 above; Map s 6, 
9, 10, 16, 17, 24, 25, 28). Further investigation is needed to 
accurately determine the status of Hermes copper butterfly in Mexico 
(Marschalek and Klein 2010, p. 2). Klein (2010a, p. 1) visited the 
Salsipuedes location in the first week of June 2005 for approximately 
30 minutes. He did not observe any Hermes copper butterflies; however, 
he described the habitat as having a ``decent number of [Rhamnus 
crocea], a large amount of Eriogonum fasciculatum,'' and said he felt 
the area was ``very good'' for Hermes copper butterfly (Klein 2010, p. 
1).

Summary of Information Pertaining to Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Federal Lists of 
Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of 
the Act, a species may be determined to be endangered or threatened 
based on any of the following 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 finding, information pertaining to Hermes copper 
butterfly in relation to the five factors provided in section 4(a)(1) 
of the Act is discussed below.
    In considering whether a species warrants listing under any of the 
five factors, we look beyond the species' exposure to a potential 
threat or aggregation of threats under any of the factors, and evaluate 
whether the species responds to those potential threats in a way that 
causes actual impact to the species. The identification of threats that 
might impact a species negatively is not sufficient to compel a finding 
that the species warrants listing. The information must include 
evidence indicating that the threats are operative and, either singly 
or in aggregation, affect the status of the species. Threats are 
significant if they drive, or contribute to, the risk of extinction of 
the species, such that the species warrants listing as endangered or 
threatened, as those terms are defined in the Act.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Here we describe the primary threats that result in Hermes copper 
butterfly habitat destruction and modification, describe how those 
threats interact to cause long-term or permanent range curtailment, and 
provide an assessment of the likelihood of those threats continuing 
into the foreseeable future.
Development
    The current distribution of Hermes copper butterfly habitat in San 
Diego County is largely due to previous urban development within 
coastal and interior San Diego County which resulted in the loss and 
fragmentation of Hermes copper butterfly habitat (CalFlora 2010; 
Consortium of California Herbaria 2010; San Diego Plant Atlas 2010). Of 
the 28 known extirpated Hermes copper butterfly populations, loss and 
fragmentation of habitat as a result of development has contributed to 
the extirpation of 14 populations (50 percent) (see Background section 
above and, Table 1 above, and Factor E discussion below). Since the 
year 2000, occupied habitats containing Hermes copper butterfly's host 
plant, Rhamnus crocea, in Rancho Santa Fe and Sabre Springs were lost 
due to urban development. In the City of San Marcos, one R. crocea 
stand near Jacks Pond was lost to development (Anderson 2010a, pp. 1, 
2) and another R. crocea stand was significantly reduced in the 
vicinity of Palomar College (Anderson 2010b, pp. 1, 2). The R. crocea 
stand in Lopez Canyon is currently found within a relatively small 
preserve (roughly rectangular area 0.4 mi (0.6 km) by 0.5 mi (0.8 km)) 
that is contiguous with suitable Hermes copper butterfly habitat in Del 
Mar Mesa where development is ongoing. This stand of R. crocea is 
likely all that remains of what was once a wider distribution, 
encompassing the community of Mira Mesa and the western portion of 
Miramar Naval Air Station (per Thorne's 1963 map, p. 147).
    Although a significant amount of habitat has been lost due to 
development throughout the range of Hermes copper butterfly within the 
United States, the remaining currently occupied population areas are 
protected from destruction by development due to their presence on 
federally owned lands, on lands conserved under regional habitat 
conservation plans, or on lands subject to local resource protection 
ordinances in San Diego County (approximately 66 percent of the total 
area currently occupied by Hermes copper butterfly populations occurs 
on federal and non-federal conserved lands; see Figure 1 above) and the 
remaining 34 percent of occupied habitat occurs on lands subject to 
local resource protection ordinances in San Diego County. Our GIS 
analysis indicates that of the total conserved area discussed above (66 
percent of all occupied areas), approximately 27 percent (encompassing 
portions of 10 populations) is located within established regional 
habitat conservation plan preserve lands (see Factor D San Diego 
Multiple Species Conservation Program (MSCP) discussion below), 
approximately 38 percent (encompassing portions of 7 populations) falls 
within U.S. Forest Service lands, and approximately 1 percent 
(encompassing portions of 3 populations) falls within Bureau of Land 
Management (BLM) land. These lands are therefore afforded protection 
from development. Additionally, as described in Factor D below, the 
County of San Diego now has in place two ordinances that restrict new 
development or other proposed projects within sensitive habitats. The 
Biological Mitigation Ordinance of the County of San Diego Subarea Plan 
(County of San Diego, 1998b, Ord. Nos. 8845, 9246) regulates 
development within coastal sage scrub and mixed chaparral habitats that 
currently support portions of 10 extant Hermes copper butterfly 
populations on non-Federal land within the boundaries of the County's 
MSCP subarea plan. The County of San Diego Resource Protection 
Ordinance (County of San Diego 2007) restricts development within 
coastal sage scrub and mixed chaparral habitats that currently support 
all extant Hermes copper butterfly populations on non-Federal lands 
throughout the county. These ordinances provide some regulatory 
measures of protection for the

[[Page 20925]]

remaining 34 percent of extant Hermes copper butterfly habitat 
throughout the species occupied range. Although past development in 
occupied Hermes copper butterfly habitat resulted in a substantial 
number of extirpations of Hermes copper butterfly populations, 
restrictions are in place to limit development and the corresponding 
destruction and modification of Hermes copper butterfly habitat in the 
future. Therefore, we do not believe future development alone will 
significantly reduce or fragment remaining Hermes copper butterfly 
habitat on non-federal lands. However, as discussed below under 
``Habitat Fragmentation,'' we believe that the combined impacts of 
existing development, limited future small-scale development, existing 
dispersal barriers, and megafires could further fragment Hermes copper 
butterfly habitat and threaten the species. Within U.S. Forest Service 
lands, we anticipate that future development, if any, will be limited, 
and the Forest Service has incorporated measures to address threats to 
Hermes copper butterfly and its habitat as it implements specific 
activities within forest lands (see Factor D below for additional 
discussion). The very limited number of Hermes copper butterfly 
populations within BLM lands are unlikely to face future development 
pressure. Therefore, we conclude that Hermes copper butterfly is not 
currently threatened by habitat loss due to future development alone.
Wildfire
    The historical fire regime in southern California likely was 
characterized by many small lightning-ignited fires in the summer and a 
few, infrequent large fires in the fall of varying fire intensity 
(Keeley and Fotheringham 2003, p. 242-243). These infrequent, large, 
high-intensity wildfires, so-called ``megafires'' (greater than 123,553 
ac (50,000 ha) in size), burned the landscape long before Europeans 
settled the Pacific coast (Keeley and Zedler 2009, p. 90). As such, 
modern fire regimes in southern California ``have much in common with 
historical regimes'' (Keeley and Zedler 2009, p. 69). While some 
researchers claim that the fire regime of chaparral growing in adjacent 
Baja California is not affected by megafires due to a lack of fire 
suppression activities (cf. Minnich and Chou 1997, Minnich 2001), 
Keeley and Zedler (2009, p. 86) believe that the fire regime in Baja 
California similarly consists of ``small fires punctuated at periodic 
intervals by large fire events.'' The current fire regime in southern 
California consists of numerous small fires that are periodically 
impacted by megafires that are generally driven by extreme ``Santa 
Ana'' weather conditions of high temperatures, low humidity, and strong 
erratic winds (Keeley and Zedler 2009, p. 90). The primary difference 
between the current fire regime and historical fire regimes in southern 
California is that human-induced or anthropogenic ignitions have 
increased the frequency of fires, and in particular, megafires, far 
above historical levels. While this change may not have demonstrably 
affected the nectar sources of Hermes copper butterfly in San Diego 
County, especially within chaparral (Franklin et al. 2004, p. 701), 
frequent fires open up the landscape, particularly coastal sage scrub, 
making the habitat more vulnerable to invasive, nonnative plants 
(Keeley et al. 2005, p. 2117). However the primary concern with 
frequent megafires is the Hermes copper butterfly mortality associated 
with these extensive and intense events (see Factor E discussion below) 
which precludes recolonization of burned areas by Hermes copper 
butterfly.
    The significance of this concern can be seen in the current 
distribution of the species in southern California. Analysis of GIS 
information indicates approximately 66 percent of the extant 
occurrences are found within the footprint of the 1970 Laguna Fire, 
which Minnich and Chou (1997, p. 240) reported last burned in 1920. In 
contrast, the areas north and south of the extant Hermes copper 
butterfly occurrences reburned several times between 2001 and 2007 
(Keeley et al. 2009, pp. 287, 293). We examined maps of current high 
fire threat areas in San Diego County based on recent reports by the 
Forest Area Safety Task Force (Jones 2008, p. 1; SANDAG 2010, p. 1). 
Areas identified as most vulnerable include all occupied and 
potentially occupied Hermes copper butterfly habitats in San Diego 
County within the species' known historical range, with the exception 
of Black Mountain, Van Dam Peak, Lopez Canyon, and the unburned 
southern portion of Mission Trails Park. In light of the recent spate 
of drought-influenced wildfires in southern California, especially the 
2007 fires, a future megafire affecting most or all of the area burned 
by the Laguna Fire in 1970 (40-year chaparral) is likely to occur and 
would pose a significant threat to Hermes copper butterfly in the 
United States because it would encompass the majority of extant 
populations (see Factor E below for direct mortality effects 
discussion).
    As described in our August 8, 2006, 90-day finding (71 FR 44966), 
Rhamnus crocea are ``obligate resprouters'' after fires and are 
resilient to frequent burns (Keeley 1998, p. 258). Additionally, 
although Keeley and Fotheringham (2003, p. 244) indicated that 
continued habitat disturbance, such as fire, will result in conversion 
of native shrublands to nonnative grasslands, Keeley (2004, p. 7) also 
noted that invasive, nonnative plants will not typically displace 
obligate resprouting plant species in mesic shrublands that burn once 
every 10 years. Therefore, because R. crocea is an obligate resprouter, 
it will likely recover in those areas that retain this burn frequency. 
Specific information regarding Hermes copper butterfly's primary nectar 
source (Eriogonum fasciculatum (California buckwheat)) is less 
understood. Eriogonum fasciculatum is a facultative seeder and high 
proportions of this nectar source are likely killed by fire, and 
densities are reduced the following year within burned areas (Zedler et 
al. 1983, p. 814); however, E. fasciculatum does show minimal 
resprouting capability (approximately 10 percent) if individuals are 
young (Keeley 2006, p. 375). The extent of invasion of nonnative plants 
and type conversion in areas specifically inhabited by Hermes copper 
butterfly are unknown. However, information clearly indicates that 
wildfire results in at least temporary reductions in suitable habitat 
for Hermes copper butterfly and may result in lower densities of E. 
fasciculatum (Zedler et al. 1983, p. 814; Keeley 2006, p. 375; 
Marschalek and Klein 2010, p. 728). In areas where R. crocea is capable 
of resprouting, the quantity of E. fasciculatum nectar source necessary 
to support a persisting Hermes copper butterfly population may be 
temporarily unavailable due to recent fire impacts. If areas are 
repeatedly burned, E. fasciculatum will not have the time necessary to 
become reestablished, rendering the habitat unsuitable for Hermes 
copper butterfly (Marschalek and Klein 2010, p. 728). Increased fire 
frequency may also pose a threat to Hermes copper butterfly through 
loss of host plant and nectar source habitat, and fire management plans 
are not expected to provide protection from megafires such as those 
that occurred in 2003 and 2007. Based on the above, we consider 
wildfire, specifically megafires that encompass vast areas and are 
increasing in frequency, a significant threat to Hermes copper 
butterfly.
Habitat Fragmentation
    Habitat fragmentation can result in smaller, more vulnerable Hermes 
copper butterfly populations (see Factor E discussion below). The 
presence of suitable habitat on which Hermes

[[Page 20926]]

copper butterflies depend often determines the size and range of the 
local population. Wildfires and past development have caused habitat 
fragmentation that separates populations and inhibits movement by 
creating a gap in area that Hermes copper butterflies are not capable 
of traversing. The connectivity of habitat occupied by a butterfly 
population is not defined by host plant distribution at the scale of 
host plant stands or patches, but rather by adult butterfly movement 
that results in interbreeding (see Service 2003, pp. 22, 162-165). Any 
loss of resource contiguity on the ground that does not affect 
butterfly movement, such as burned vegetation, may degrade habitat, but 
may not fragment habitat. Therefore, in order for habitat to be 
fragmented, movement must be prevented by a barrier, or the distance 
between remaining host plants where larvae develop must be greater than 
adult butterflies will move to mate or deposit eggs. Genetic analysis 
(Deutschman et al. 2010; p. 16) indicates that butterflies can show 
differentiation even when close in proximity, presumably due to 
physical barriers that may be a result of development or a landscape 
feature (i.e., the three McGinty Mountain sites that are on opposite 
sides of the mountain may be separated by topography). Alternately, 
sampling locations that are not close have shown little genetic 
differentiation, indicating that butterflies can also disperse long 
distances under the right conditions. Sampling at one location before 
and after a fire found genetically differentiated groups. Deutschman et 
al. (2010, p. 16) concluded their findings supported the idea that 
Hermes copper butterfly individuals are capable of long-distance 
movement, but developed areas and natural landscape features may 
enhance or restrict dispersal. It is important to note that although 
movement may be possible, the habitat must be suitable at the time 
Hermes copper butterflies arrive to ensure successful recolonization.
    As described in our 90-day finding published in 2010 (75 FR 23658, 
May 4, 2010) Hermes copper butterfly habitat has become fragmented by 
both past urban development (permanently) and wildfires. Comparison of 
Hermes copper butterfly occurrences and host plant distribution with 
mapped wildfire perimeters indicates that wildfires cause short-term 
fragmentation of habitat, and, historically, Hermes copper butterfly 
habitat in San Diego County has been fragmented and lost due to the 
progression of development over the last 50 years. Analysis of the 
Hermes copper butterfly populations indicates that in the northern 
portion of the U.S. range, the habitat has been fragmented (and lost) 
permanently by development and further fragmented temporally by 
wildfires, resulting in extirpation of at least four Hermes copper 
butterfly populations (see Table 1 above). As described in the 
Background section above and Factor E below, two historical Hermes 
copper butterfly populations (Rancho Santa Fe and Van Dam Peak) in the 
northern portion of the range have been lost since the year 2000, 
presumably because the habitat became isolated to an extent that 
connectivity with other populations was lost. Neither the Rancho Santa 
Fe habitat area nor Van Dam Peak habitat area is expected to be 
recolonized because the distance to the next nearest source population 
(13 mi (20 km) and 7 mi (11 km), respectively) exceeds the dispersal 
capability of the species. In the southern portion of the range, Lopez 
Canyon and the extant portion of Mission Trails Park are both isolated 
(7 mi (11 km) separation) from other extant populations by development 
and burned areas that are no longer likely occupied. Although the 
Mission Trails Park population remains extant this population was 
likely reduced up to 74 percent by the 2003 fire, and remaining 
unburned habitat is surrounded by development, functionally isolating 
it from any potential source populations thought to be extant (see 
Figure 1 above). While we do not expect future development alone to 
threaten Hermes copper butterfly habitat, we believe that the combined 
impacts attributable to wildfire and small scale development may 
fragment habitat further and hence, threaten the species' continued 
existence. Based on the above, we consider habitat fragmentation, due 
to the combined impact of existing development, possible future 
(limited) development, existing dispersal barriers, and megafires, a 
significant threat to Hermes copper butterfly.
Summary of Factor A
    Based on the above information, we consider Hermes copper butterfly 
to be threatened by the present or threatened destruction, 
modification, or curtailment of the species habitat or range. 
Specifically, we consider Hermes copper butterfly threatened by habitat 
fragmentation and wildfire. The combination of habitat fragmentation 
(as a result of past and potential limited future urban development), 
existing dispersal barriers, and megafires (that encompass vast areas 
and are increasing in frequency) that fragment, limit, and degrade 
Hermes copper butterfly habitat threaten the species with extirpation 
throughout its range. These threats are evidenced by the loss and 
isolation of many populations throughout the range; those remaining 
extant populations fall within areas of high megafire risk. Thus, we 
consider threats under this factor to be significant.

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

    We found two Internet postings (accessed in June 2004) offering to 
sell specimens of Hermes copper butterfly (Martin 2004, pers. comm.). 
We found no evidence that Hermes copper butterflies, whole or in parts, 
were being used in a commercial ``butterfly essence'' process (Morning 
Star Essences 2006, pers. comm.) and we have no other information to 
indicate that other commercial business activities are a threat to 
Hermes copper butterfly. Neither of these previously viewed Web sites 
offered Hermes copper butterfly for sale during a more recent search 
(November 22, 2010), nor did we locate any additional commercially 
available specimens. We found no other information to indicate Hermes 
copper butterfly is used for commercial, scientific, or educational 
purposes. Therefore, based on our review of the best available 
scientific and commercial information, we do not consider 
overutilization for commercial, recreational, scientific, or 
educational purposes a current threat to Hermes copper butterfly.

Factor C. Disease or Predation

Disease
    We evaluated the potential of disease to threaten Hermes copper 
butterfly rangewide and found no information indicating disease to be 
current threat to Hermes copper butterfly.
Predation
    Predation (including parasitism) is a factor that is known to cause 
mortality in butterflies, and therefore could potentially threaten any 
butterfly species. Faulkner and Klein (2005, p. 26) stated that ``no 
papers have reported any parasites or predators for the Hermes copper 
butterfly, though they obviously exist.'' Birds may consume Hermes 
copper butterfly larvae, although we are not aware of any data that 
indicate bird predation is a significant threat to Hermes copper 
butterfly. Furthermore, heavy predation of adult insects and their 
progeny is a common ecological phenomenon, and most species have 
evolved under

[[Page 20927]]

conditions where high mortality due to natural enemies has shaped their 
evolution (see Ehrlich et al. 1988). However, we found no information 
to indicate predation to be current threat to Hermes copper butterfly.
    Therefore, based on our review of the best available scientific and 
commercial information, we do not consider disease or predation a 
current threat to Hermes copper butterfly.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The Act requires us to examine the adequacy of existing regulatory 
mechanisms, with respect to threats, that may ameliorate the danger of 
Hermes copper butterfly becoming either endangered or threatened. 
Existing regulatory mechanisms that may have an effect on potential 
threats to Hermes copper butterfly can be placed into two general 
categories: (1) Federal mechanisms, and (2) State and local mechanisms.
Federal Mechanisms
    There are five primary Federal regulatory mechanisms that we 
discuss below: the National Forest Management Act (16 U.S.C. 1600 et 
seq.); the Federal Land Policy and Management Act; the Sikes Act as 
amended (16 U.S.C. 670a et seq.); the Healthy Forests Restoration Act 
of 2003 (16 U.S.C. 6501 et seq.); and the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.).
    Under the National Forest Management Act of 1976, the U.S. Forest 
Service (Forest Service) is required to prepare a comprehensive land 
and natural resource management plan for each unit of the Forest 
Service, in accordance with NEPA's procedural requirements, to guide 
the maintenance and use of resources within national forests. The plans 
require an interdisciplinary approach, including a provision providing 
for diversity for plant and animal communities (16 U.S.C. 
1604(g)(3)(B)). The Forest Service is currently operating under the 
transition provisions of the 2000 Planning Rule (65 FR 67514; November 
9, 2000) as an interim measure until a new planning rule is issued (see 
74 FR 67059; December 18, 2009). The 2000 rule allows forests to 
develop, revise and amend forest plans using the procedures of the 1982 
Rule (47 FR 43037; September 30, 1982). All existing forest plans have 
been developed using the 1982 Planning Rule procedures, including the 
Cleveland National Forest Plan.
    In preparing the Cleveland National Forest (CNF) Plan, the Forest 
Service evaluated and identified Hermes copper butterfly as a species 
of concern and then evaluated this species relative to its potential of 
risk from Forest Service activities and plan decisions in its 2005 
Final Environmental Impact Statement (USFS 2005). Hermes copper 
butterfly, along with 148 other species, was defined as a ``species-at-
risk'' (USFS 2005, Appendix B, p. 36), requiring a further individual 
viability assessment. The subsequent threat category identified for 
Hermes copper butterfly was ``5'' or ``Uncommon, narrow endemic, 
disjunct, or peripheral in the plan area with substantial threats to 
persistence or distribution from Forest Service activities'' (USFS 
2005, Appendix B, p. 43). The specific threat associated with Hermes 
copper butterfly and Forest Service management activities is described 
as ``Prescribed fire or fuel reduction projects in habitat (affecting 
host plant, Rhamnus crocea)'' (USFS 2005, Appendix B, p. 52). There are 
approximately 7,860 acres (ac) (3,181 hectares (ha)) of extant Hermes 
copper butterfly habitat (encompassing 7 populations) within the CNF 
and approximately 2,100 ac (850 ha) of Hermes copper butterfly habitat 
that has been extirpated or is of unknown status. The Forest Service 
incorporates measures into its planning efforts to address identified 
threats as it implements specific activities on forest lands. As an 
example, in 2007, measures were included to protect Hermes copper 
butterfly habitat ahead of the Horsethief Fuels Reduction Project 
(Jennings 2007, pers. comm.). Although the proposed project has not yet 
been implemented, the recommendations of flagging and avoidance of all 
R. crocea bushes are standard management measures for relevant CNF 
activities (Winter 2010, pers. comm.).
    The CNF has also initiated two projects for restoration of habitat 
at Barber Mountain related to impacts from the Harris Fire (Metz 2010, 
pers. comm.). In an effort to restore nectar and host plants at this 
site, seeds from both Eriogonum fasciculatum and Rhamnus crocea plants 
have been collected locally and E. fasciculatum seeds have already been 
planted (Metz 2010, pers. comm.).
    Because fires, particularly recent wildfires (megafires), have been 
identified as a factor affecting the distribution of this species, the 
CNF has been monitoring Hermes copper butterfly populations in burned 
and unburned areas of CNF to assist in monitoring the recovery and 
management of this