Endangered and Threatened Wildlife and Plants; Endangered Species Status for Sacramento Mountains Checkerspot Butterfly, 6177-6191 [2023-01146]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 20 (Tuesday, January 31, 2023)]
[Rules and Regulations]
[Pages 6177-6191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01146]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0069; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG01


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Sacramento Mountains Checkerspot Butterfly

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are listing 
the Sacramento Mountains checkerspot butterfly (Euphydryas anicia 
cloudcrofti), a butterfly from New Mexico, as an endangered species 
under the Endangered Species Act of 1973 (Act), as amended. This rule 
extends the Act's protections to the Sacramento Mountains checkerspot 
butterfly. We will propose the designation of critical habitat for the 
Sacramento Mountains checkerspot butterfly in a future rulemaking.

DATES: This rule is effective March 2, 2023.

ADDRESSES: The January 25, 2022, proposed rule (87 FR 3739) and this 
final rule are available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R2-ES-2021-0069.

FOR FURTHER INFORMATION CONTACT: Shawn Sartorius, Field Supervisor, 
U.S. Fish and Wildlife Service, New Mexico Ecological Services Field 
Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
Sacramento Mountains checkerspot butterfly meets the definition of an 
endangered species; therefore, we are listing it as such. Listing a 
species as an endangered or threatened species can be completed only by 
issuing a rule through the Administrative Procedure Act rulemaking 
process (5 U.S.C. 551 et seq.).
    What this document does. We are listing the Sacramento Mountains 
checkerspot butterfly as an endangered species under the Act. As 
explained later in this document, we are working on a separate rule to 
propose critical habitat for the Sacramento Mountains checkerspot 
butterfly.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because 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. We have determined that the Sacramento Mountains 
checkerspot butterfly is endangered due to the following threats: 
incompatible grazing, recreation, climate change, invasive and 
nonnative plants, and an altered wildfire regime.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time

[[Page 6178]]

it is listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.
    We determined that designation of critical habitat was prudent but 
not determinable at this time because specific information needed to 
analyze the impacts of designation was lacking. We are still in the 
process of assessing this information. We plan to publish a proposed 
rule to designate critical habitat for the Sacramento Mountains 
checkerspot butterfly in the near future.

Previous Federal Actions

    On January 25, 2022, we published in the Federal Register (87 FR 
3739) a proposed rule to list the Sacramento Mountains checkerspot 
butterfly as an endangered species and concluded that critical habitat 
was not determinable at that time (16 U.S.C. 1531 et seq.). Please 
refer to that proposed rule for a detailed description of previous 
Federal actions concerning this butterfly.

Peer Review

    An assessment team prepared a current condition assessment report 
for the Sacramento Mountains checkerspot butterfly. The team was 
composed of Service biologists in consultation with other species 
experts. The report represents a compilation of the best scientific and 
commercial data available concerning the status of the Sacramento 
Mountains checkerspot butterfly, including the impacts of past and 
present factors (both negative and beneficial) affecting the 
subspecies. In accordance with our joint policy on peer review 
published in the Federal Register on July 1, 1994 (59 FR 34270), and 
our August 22, 2016, memorandum updating and clarifying the role of 
peer review of listing actions under the Act, we solicited independent 
scientific review of the information contained in the report. As 
discussed in the proposed rule, we sent the report to five appropriate 
and independent peer reviewers and received three responses. The peer 
reviews can be found at https://www.regulations.gov. In preparing the 
proposed rule, we incorporated the results of these reviews, as 
appropriate, into the report, which was the foundation for the proposed 
rule and this final rule.

Summary of Changes From the Proposed Rule

    We received comments and suggested clarifications on the January 
25, 2022, proposed rule, and we updated the corresponding text of the 
current condition assessment report and this rule. Those updates 
include:
    (1) New observation data of the butterfly in 2020 in Bailey Canyon;
    (2) Additional details and clarification on elk, feral horse, and 
cattle grazing; and
    (3) Several nonsubstantive clarifications and corrections to ensure 
better consistency, clarify some information, and update references.
    We did not make any substantial changes to this final rule after 
consideration of the comments we received on the proposed rule.

Summary of Comments and Recommendations

    In the proposed rule published on January 25, 2022 (87 FR 3739), we 
requested that all interested parties submit written comments on the 
proposal by March 28, 2022. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Alamogordo Daily News, Albuquerque Journal, Las Cruces Sun-News, Rio 
Rancho Observer, and Ruidoso News. We did not receive any requests for 
a public hearing.

Peer Review Comments

    As discussed in Peer Review above, we received comments from three 
peer reviewers on the current condition assessment report. We reviewed 
all comments we received from the peer reviewers for substantive issues 
and new information regarding the information contained in the current 
condition assessment report. The peer reviewers generally concurred 
with our methods and conclusions, and provided additional information, 
clarifications, and suggestions that we incorporated into an updated 
version of the current condition assessment report. The peer reviewers' 
comments did not change our determination that the Sacramento Mountains 
checkerspot butterfly meets the definition of an endangered species 
under the Act. Below is a summary of comments from peer reviewers we 
received.
    (1) Comment: Peer reviewers commented that we should add 
information to specific sections of the current condition assessment 
report, such as climate change and the butterfly's life history.
    Response: We added information to these discussions in the current 
condition assessment report. We elaborated where appropriate but did 
not go into as great of detail as the reviewers requested because our 
analysis indicates that the butterfly is in danger of extinction based 
on its current condition. We acknowledge that there is a greater body 
of work on these issues, such as climate change in the southwestern 
United States, and the current condition assessment report is not meant 
to be a comprehensive literature review on climate change overall, nor 
would it change our analysis. We will ensure that the impacts of 
climate change and all other appropriate information as it relates to 
the butterfly, its life history, and resources are included in recovery 
planning.

Federal Agency Comments

    (2) Comment: The U.S. Forest Service (Forest Service) commented 
that we need to define intensive grazing and explain how to measure 
that in monitoring and defined violations. They further commented that 
new chemicals and methods of herbicide use need to be clarified.
    Response: We are not able to provide a specific definition on what 
constitutes intensive grazing. Rather, we changed ``intensive'' to 
``incompatible'' to capture any grazing activities that are 
incompatible with the needs of the Sacramento Mountains checkerspot 
butterfly. This may include any activities that reduce suitable 
butterfly habitat by impacting the resource needs of the butterfly, 
such as presence/quantity of host plants, nectar sources, or moisture. 
We are also not able to provide information on how new chemicals and 
methods of herbicide use may affect the subspecies. The use of 
herbicide by a Federal agency in the presence of a listed species would 
require that Federal agency to consult with the Service under section 7 
of the Act to ensure that the action is not likely to jeopardize the 
species. Similarly, should a Federal agency use a new chemical or 
change the timing of herbicide use, they would have to consult with the 
Service. Particular information regarding use and timing of that 
chemical would be elucidated in the consultation process, and avoidance 
and minimization measures would be determined.
    (3) Comment: The Forest Service stated that the use of herbicide/
pesticides in the list of actions that may not violate section 9 of the 
Act is a

[[Page 6179]]

contradiction to the conservation recommendation that herbicides should 
be used to restore butterfly habitat.
    Response: In the January 25, 2022, proposed rule (87 FR 3739), we 
state that herbicide application authorized or carried out by a Federal 
agency would not likely violate section 9 of the Act. We clarify in 
this final rule that any use of herbicides that would result in take of 
the butterfly would be a violation, not the use of herbicide itself. 
The use of herbicide or pesticides by a Federal agency in the presence 
of a listed species would require that Federal agency to consult with 
the Service under section 7 of the Act to ensure that the Federal 
agency action is not likely to jeopardize the species, but we do not 
consider that herbicide use itself would likely result in a violation 
of section 9 of the Act. Herbicides may also be used as a tool for 
habitat restoration and would not be a violation of section 9 of the 
Act if used as directed by the label and after the Federal action 
agency consults with the Service.

State Agency Comments

    (4) Comment: New Mexico Department of Game and Fish commented that 
the limited data available are insufficient to draw conclusions 
regarding the impact of elk on the butterfly.
    Response: We considered the best scientific and commercial data 
available regarding the Sacramento Mountains checkerspot butterfly to 
evaluate its status under the Act. Also, in accordance with our peer 
review policy published on July 1, 1994 (59 FR 34270), we solicited 
peer review from knowledgeable individuals with scientific expertise 
that included familiarity with the Sacramento Mountains checkerspot 
butterfly, the geographic region in which the subspecies occurs, and 
conservation biology principles. Additionally, we requested comments or 
information from other concerned governmental agencies, Native American 
Tribes, the scientific community, industry, and any other interested 
parties concerning the January 25, 2022, proposed rule (87 FR 3739). 
Comments and information we received helped inform this final rule. Elk 
will browse New Mexico beardtongue (Penstemon neomexicanus) during 
drought conditions, as vegetation becomes scarce (McIntyre 2021, pers. 
comm.). This causes the New Mexico beardtongue to remain as small 
rosettes that are not large enough to support tent colonies of 
caterpillars and any larvae will starve after hatching. Browsing 
ultimately reduces available host plants, which are an essential need 
for the viability of the Sacramento Mountains checkerspot butterfly. 
Therefore, we think it is reasonable to conclude, as we did in this 
final rule, that elk grazing can impact the Sacramento Mountains 
checkerspot butterfly's viability, especially when populations are at 
low numbers.
    We agree that outside of drought conditions, the effect of elk on 
the butterfly's habitat is different and more nuanced. We acknowledge 
that elk are a natural part of the ecosystem, filling an ecological 
niche that is generally compatible with the viability of the butterfly. 
However, during times of prolonged drought, synergistic effects lead to 
increased habitat degradation, during which times both butterflies and 
elk can be negatively impacted by increased temperature, decreased 
precipitation, and increased browse pressure from other ungulates.
    (5) Comment: The New Mexico Department of Agriculture stated that 
the proposed rule implied that livestock grazing is not a risk factor 
to the butterfly due to the absence of livestock, which can be 
misconstrued to suggest that if the Forest Service were to resume 
livestock grazing within the range of the subspecies, that would be 
incompatible with the conservation of the subspecies.
    Response: The previous version of the current condition assessment 
report (Service 2021, pp. 12-13) stated that there is no information 
indicating that livestock grazing significantly affects the butterfly's 
status now or will do so in the foreseeable future; therefore, 
livestock grazing is not a significant threat to the butterfly because 
it does not occur within areas where the butterfly is currently extant. 
In this rule, we clarify that livestock grazing, were it to occur 
within occupied habitat, has the potential to impact the Sacramento 
Mountains checkerspot butterfly especially during drought conditions. 
We acknowledge that livestock grazing does occur within the butterfly's 
historical range and acts synergistically to contribute to the decline 
of habitat suitability within those active allotments. We amended the 
current condition assessment report and the information in this rule to 
reflect this analysis of current condition and how it has impacted the 
subspecies previously. We have also updated the discussion in this 
final rule of how grazing might affect the butterfly's status now and 
into the foreseeable future.

Public Comments

    We received 45 public comments on the proposed rule. One comment 
provided us with new information on the Bailey Canyon population that 
we have incorporated into our analysis, but it did not change our 
determination that the Sacramento Mountains checkerspot butterfly is in 
danger of extinction. The remaining comments did not provide any new 
substantial information on the subspecies' status or threats. 
Therefore, none of the public comments we received changed our 
determination that the Sacramento Mountains checkerspot butterfly meets 
the Act's definition of an endangered species. Some commenters provided 
suggestions that apply to issues outside the scope of this rulemaking, 
such as recovery strategies for the Sacramento Mountains checkerspot 
butterfly, but these suggestions are not directly related to the 
butterfly's this final rule to list the species as an endangered 
species. These general comments included topics such as the role of the 
Sacramento Mountains checkerspot butterfly in the ecosystem, the 
importance of habitat heterogeneity, and the use of specific 
conservation measures. While these comments are not directly 
incorporated into this final rule, we have noted the suggestions and 
look forward to working with our partners on these topics during 
recovery planning for the Sacramento Mountains checkerspot butterfly. 
Comments that we incorporated as changes into this final rule, comments 
outside the scope of this rulemaking, and comments without supporting 
information did not warrant an explicit response and, thus, are not 
presented here. Identical or similar comments have been consolidated, 
and a single response is provided below.
    (6) Comment: Several commenters stated that critical habitat should 
be designated for the Sacramento Mountains checkerspot butterfly. One 
commenter said that it is determinable and gave information on where we 
should propose critical habitat, while another recommended an approach 
for us to use for the economic analysis.
    Response: Section 4(a)(3) of the Act and implementing regulations 
(50 CFR 424.12) require that we designate critical habitat at the time 
a species is determined to be an endangered or threatened species, to 
the maximum extent prudent and determinable. In the proposed listing 
rule (87 FR 3739; January 25, 2022), we determined that designation of 
critical habitat was prudent but not determinable because specific 
information needed to analyze the economic and environmental impacts of 
designation was lacking. Those analyses were not yet completed at the 
time we published the proposed rule. We are currently in the process of 
assessing this information, and we plan to publish a proposed rule to 
designate

[[Page 6180]]

critical habitat for the Sacramento Mountains checkerspot butterfly in 
the near future. In that upcoming rulemaking, we will evaluate areas to 
determine if they should be proposed for critical habitat. We will 
request public comments on the proposed designation of critical habitat 
for the Sacramento Mountains checkerspot butterfly when we publish that 
proposed rule.
    (7) Comment: Several commenters stated concerns about the impacts 
to landowners, such as taking away their property rights and use of 
pesticides and stated that we should compensate affected landowners. 
Another commenter added that the Act is harmful to landowners and 
violates the 5th Amendment.
    Response: The 5th Amendment states that private property may not be 
taken for public use without just compensation. The mere promulgation 
of a regulation, such as the listing of a species under the Act, does 
not take private property, unless the regulation on its face denies the 
property owners all economically beneficial or productive use of their 
land, which is not the case with the listing of the Sacramento 
Mountains checkerspot butterfly.
    The presence of a listed species does not affect land ownership, 
establish any restrictions on use of or access to the designated areas, 
establish specific land management standards or prescriptions, or 
prevent access to any land. Therefore, the Act does not violate the 5th 
Amendment as private property is not being taken for public use. 
Additionally, the presence of a listed species does not allow the 
Federal Government or public to access private lands.
    The Act does not authorize the Service to regulate private actions 
on private lands, and landowners are not obligated to incur any costs 
related to the species' conservation or to alter their current land 
management. Programs are available to private landowners to obtain 
permits for the incidental take of a listed species (see 50 CFR 17.22 
for endangered wildlife and 50 CFR 17.32 for threatened wildlife) and 
to assist in the voluntary conservation of listed species. Voluntary 
conservation programs may provide technical or financial assistance to 
the landowner. Private landowners may contact their local Service field 
office to obtain information about these permits and programs.
    (8) Comment: One commenter stated that the Sacramento Mountains 
checkerspot butterfly is not a true subspecies.
    Response: We considered the best scientific and commercial data 
available regarding the Sacramento Mountains checkerspot butterfly's 
taxonomy. The Sacramento Mountains checkerspot butterfly was first 
described as a subspecies of the Anicia checkerspot in 1980 (Ferris and 
Holland 1980, pp. 3-9), which was later corroborated (Glassberg 2017, 
p. 207; Pohl et al. 2016, p. 315). Checkerspot butterflies in the 
Euphydryas genus are similar but can be distinguished from one another 
by several subtle morphological traits. The Sacramento Mountains 
checkerspot butterfly has darker colors overall compared to other 
checkerspots (Ferris and Holland 1980, p. 5). Therefore, we reaffirm 
our previous conclusion that the Sacramento Mountain's checkerspot 
butterfly is a valid species, and thus, a valid listable entity under 
the Act.
    (9) Comment: One commenter stated that there are many aspects of 
the butterfly's life history that are unknown or not well understood, 
which makes it impossible to determine the butterfly's viability.
    Response: We based this final listing determination on the best 
available scientific and commercial information, and the commenter did 
not provide any new information for us to consider. The best available 
information on the Sacramento Mountains checkerspot butterfly indicates 
the butterfly needs host plants, larval food sources, and climatic 
moisture. In assessing the viability of the butterfly, the best 
available scientific and commercial data provide information about some 
aspects of subspecies' biology and habitat requirements but may not 
represent a full and complete knowledge of the subspecies. We drew 
reasonable conclusions about other aspects of the subspecies' biology 
and requirements based on similar species, similar habitats, and best 
available information.
    (10) Comment: Two commenters asked what our standard is for the 
``best available science.''
    Response: In accordance with section 4 of the Act, we are required 
to list a species on the basis of the best scientific and commercial 
data available. Further, our Policy on Information Standards under the 
Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), 
the Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines (https://www.fws.gov/program/information-quality) provide criteria and 
guidance, and establish procedures to ensure that our decisions are 
based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for listing recommendations. Primary or 
original information sources are those that are closest to the subject 
being studied, as opposed to those that cite, comment on, or build upon 
primary sources. The Act and our regulations do not require us to use 
only peer-reviewed literature, but instead they require us to use the 
``best scientific data available'' in a listing determination. We use 
information from many different sources, including, but not limited to, 
articles in peer-reviewed journals, scientific status surveys and 
studies completed by qualified individuals, Master's thesis research 
that has been reviewed but not published in a journal, other 
unpublished governmental and nongovernmental reports, reports prepared 
by industry, personal communication about management or other relevant 
topics, conservation plans developed by States and counties, biological 
assessments, other unpublished materials, experts' opinions or personal 
knowledge, and other sources. We have considered published articles, 
unpublished research, habitat modeling reports, digital data publicly 
available on the internet, and the expert opinion of subject biologists 
to determine that the Sacramento Mountains checkerspot butterfly meets 
the Act's definition of an endangered species.
    Also, in accordance with our peer review policy published on July 
1, 1994 (59 FR 34270), we solicited peer review from knowledgeable 
individuals with scientific expertise that included familiarity with 
the Sacramento Mountains checkerspot butterfly, the geographic region 
in which the subspecies occurs, and conservation biology principles. 
Additionally, we requested comments or information from other concerned 
governmental agencies, Native American Tribes, the scientific 
community, industry, and any other interested parties concerning our 
January 25, 2022, proposed rule (87 FR 3739). Comments and information 
we received helped inform this final rule.
    (11) Comment: One commenter asked how the public will know if 
comments are considered in making a determination or merely noted as 
``commercial data'' and are therefore not actually considered.
    Response: In accordance with section 4 of the Act, we are required 
to list a species on the basis of the best scientific and commercial 
data available.

[[Page 6181]]

Therefore, if any comments are received that we classify as 
``commercial data,'' they are considered in our listing determination.
    (12) Comment: One commenter also asked how the Service plans to 
address drought and other natural occurrences that are affecting the 
Sacramento Mountains checkerspot butterfly.
    Response: Drought and other naturally occurring events are 
important as they relate to the conservation needs of the butterfly, 
and we will consider these factors as we develop a recovery plan and 
specific recovery strategies for the conservation of the Sacramento 
Mountains checkerspot butterfly.
    (13) Comment: One commenter asked if the Service bears the total 
cost of management actions as they relate to recovery.
    Response: The Service puts as many resources as we can, including 
recovery grant funding and staff time, into the implementation of 
recovery actions. Additionally, we also rely on expertise and funding 
from other Federal agencies, States, Tribes, and other entities to 
implement recovery of listed species.
    (14) Comment: One commenter asked which animal(s) any exclosures 
are meant to keep out of butterfly habitat on the Lincoln National 
Forest and how many taxpayer dollars will be spent to construct these 
exclosures.
    Response: Exclosures that have been erected on the Lincoln National 
Forest are meant to prevent any large ungulate or grazer from feeding 
on butterfly host plants and nectar sources. This practice is often 
used by land management agencies to allow for vegetation to recover 
from overgrazing. Because the Sacramento Mountains checkerspot 
butterfly is known to occupy areas entirely on the Lincoln National 
Forest, we expect that the Forest Service would be a leader in the 
recovery of the species. We expect that additional exclosures would be 
paid for by the Service and Forest Service and we do not have estimates 
on the total cost. When we develop our recovery plan for the species, 
it will include an estimate of the costs of recovery.
    (15) Comment: One commenter asked what a ``jeopardy finding'' is, 
how it is determined, and what the consequences are.
    Response: ``Jeopardize the continued existence of'' means to engage 
in an action that reasonably would be expected, directly or indirectly, 
to reduce appreciably the likelihood of both the survival and recovery 
of a listed species in the wild by reducing the reproduction, numbers, 
or distribution of that species (50 CFR 402.02). Per policy and 
regulation, the jeopardy analysis in a biological opinion relies on 
four components in our evaluation for each species:
    1. The Status of the Species--evaluates the species' range-wide 
condition, the factors responsible for that condition, and its survival 
and recovery needs;
    2. The Environmental Baseline--evaluates the condition of the 
species in the action area, the factors which are responsible for that 
condition, and the relationship of the action area to the survival and 
recovery of the species;
    3. The Effects of the Action--determines the consequences of the 
proposed Federal action on the species that are reasonably certain to 
occur as a result of the proposed action; and,
    4. Cumulative Effects--evaluates the effects of future, non-Federal 
activities in the action area on the species.
    The jeopardy determination is made by evaluating the effects of the 
Federal action in the context of the species' status. This analysis 
considers any cumulative effects to determine if the implementation of 
the action is likely to cause an appreciable reduction in the 
likelihood of both the survival and recovery of the species in the 
wild. The jeopardy analysis places emphasis on consideration of the 
range-wide survival and recovery needs of the species and the role of 
the action area in the survival and recovery of the species as the 
context for evaluating the significance of the effects of the Federal 
action, taken together with cumulative effects, for purposes of making 
the jeopardy determination.
    (16) Comment: One commenter asked how law enforcement is involved 
in listing the Sacramento Mountains checkerspot butterfly as an 
endangered species.
    Response: The Service's Office of Law Enforcement works to protect 
threatened and endangered species by enforcing violations of Section 9 
under the Act, such as, but not limited to, preventing the unlawful 
commercial exploitation of such species. The Service is committed to 
meeting all requirements and enforcing the Act and doing so legally. 
The Service maintains a comprehensive approach to conservation, and we 
will work together with the Office of Law Enforcement to achieve our 
conservation goals.
    (17) Comment: One commenter asked how listing of the Sacramento 
Mountains checkerspot butterfly is determined when the Act directly 
conflicts with the Wild Free-Roaming Horses and Burros Act of 1971, as 
amended (16 U.S.C. 1331 et seq.).
    Response: The Wild Free-Roaming Horses and Burros Act was 
established to protect wild horses and burros on Federal land from 
capture, branding, harassment, or death by placing them under the 
jurisdiction of the Bureau of Land Management and the Forest Service. 
Each Act imposes its own requirements. This rule listing the Sacramento 
Mountains checkerspot butterfly as an endangered species under the Act 
does not violate the Wild Free-Roaming Horses and Burros Act because we 
can achieve conservation of the butterfly while also protecting wild 
horses and burros on Federal land.
    (18) Comment: One commenter asked why the Secretary of Commerce is 
not a determining agency for this rule.
    Response: The Act states that the term ``Secretary'' means, except 
as otherwise provided, the Secretary of the Interior or the Secretary 
of Commerce as program responsibilities are vested pursuant to the 
provisions of Reorganization Plan No. 4 of 1970, which established that 
the Secretary of Commerce would have functions relating to the oceans 
and atmosphere, including commercial fisheries functions. Because this 
subspecies falls under the jurisdiction of the Department of the 
Interior (i.e., the Service) and not the Department of Commerce (i.e., 
the National Marine Fisheries Service), the Secretary of the Interior 
maintains program responsibilities under the Act.
    (19) Comment: One commenter said that our statement that 
possession, delivery, or movement, including interstate transport and 
import into or export from the United States, involving no commercial 
activity, of dead specimens of this taxon that were collected prior to 
the effective date of a final rule adding this taxon to the Federal 
List of Endangered and Threatened Wildlife is unlikely to violate 
section 9 of the Act is a violation of the Lacey Act (16 U.S.C. 3371-
3378; 18 U.S.C. 42).
    Response: Section 9 of the Act (and its implementing regulations at 
50 CFR part 17) and the Lacey Act (and its implementing regulations at 
50 CFR part 16) impose separate permitting requirements. This rule, 
authorized by the Act, does not address permitting requirements imposed 
under the Lacey Act; as a result, importers and exporters are 
responsible for following all applicable regulatory requirements under 
the Lacey Act and any other relevant law.

[[Page 6182]]

I. Final Listing Determination

Background

    Please refer to the revised current condition assessment report 
(Service 2022, entire) and the January 25, 2022, proposed rule to list 
the Sacramento Mountains checkerspot butterfly (87 FR 3739) for a full 
summary of the taxon's information. Both are available on our Southwest 
Region website at https://www.fws.gov/about/region/southwest and at 
https://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for threatened and 
endangered species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued final rules that revised the regulations in 
50 CFR part 424 regarding how we add, remove, and reclassify threatened 
and endangered species and the criteria for designating listed species' 
critical habitat (84 FR 45020; August 27, 2019). At the same time the 
Service also issued final regulations that, for species listed as 
threatened species after September 26, 2019, eliminated the Service's 
general protective regulations automatically applying to threatened 
species the prohibitions that section 9 of the Act applies to 
endangered species (84 CFR 44753; August 27, 2019). We collectively 
refer to these actions as the 2019 regulations.
    As with the proposed rule, we are applying the 2019 regulations for 
this final rule because the 2019 regulations are in effect just as they 
were when we completed the proposed rule. Although there was a period 
in the interim--between July 5, 2022, and September 21, 2022--when the 
2019 regulations became vacated and the pre-2019 regulations were 
therefore reinstated (see Center for Biological Diversity v. Haaland, 
No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 5, 2022) (vacating the 
2019 regulations and thereby reinstating the pre-2019 regulations), the 
2019 regulations are now in effect, so we must apply them when making 
listing and critical habitat decisions (In re: Cattlemen's Ass'n, No. 
22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order 
vacating the 2019 regulations until the district court resolved a 
pending motion to amend the order); Center for Biological Diversity v. 
Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16, 
2022) (granting plaintiffs' motion to amend July 5, 2022, order and 
granting government's motion for remand without vacatur).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following 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.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain;'' it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The current condition assessment report (Service 2022, entire) 
documents the results of our comprehensive biological review of the 
best scientific and commercial data regarding the status of the 
species, including an assessment of the potential threats to the 
species. The current condition assessment report does not represent our 
decision on whether the species should be listed as an endangered or 
threatened species under the Act. However, it does provide the 
scientific

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basis that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies.
    To assess Sacramento Mountains checkerspot butterfly's viability, 
we used the three conservation biology principles of resiliency, 
redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). 
Briefly, resiliency is the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy is the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation is the ability of the species to adapt to 
both near-term and long-term changes in its physical and biological 
environment (for example, climate conditions, pathogens). In general, 
species viability will increase with increases in resiliency, 
redundancy, and representation (Smith et al. 2018, p. 306). Using these 
principles, we identified the butterfly's ecological requirements for 
survival and reproduction at the individual, population, and subspecies 
levels, and described the beneficial and risk factors influencing the 
subspecies' viability.
    Our analysis can be categorized into several sequential stages. 
During the first stage, we evaluated the individual subspecies' life-
history needs. The next stage involved an assessment of the historical 
and current conditions of the subspecies' demographics and habitat 
characteristics, including an explanation of how the subspecies arrived 
at its current condition. Throughout these stages, we used the best 
available information to characterize viability as the ability of the 
subspecies to sustain populations in the wild over time. We use this 
information to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the current condition assessment report; the full report can be found 
at https://www.regulations.gov under Docket No. FWS-R2-ES-2021-0069 and 
at https://www.fws.gov/office/new-mexico-ecological-services.

Summary of Biological Status and Threats

    Below, we review the biological condition of the Sacramento 
Mountains checkerspot butterfly and its resources, and the threats that 
influence the subspecies' current and future condition, in order to 
assess the subspecies' overall viability and the risks to that 
viability.
    For the Sacramento Mountains checkerspot butterfly to maintain 
viability, its populations or some portion thereof must have sufficient 
resiliency, redundancy, and representation. Several factors influence 
the resiliency of Sacramento Mountains checkerspot butterfly 
populations, including larval and adult abundance and density, in 
addition to elements of the subspecies' habitat that determine whether 
Sacramento Mountains checkerspot butterfly populations can survive and 
reproduce. These resiliency factors and habitat elements are discussed 
in detail in the current condition assessment report and are summarized 
here.

Species Needs

Abundance and Density
    To successfully reproduce and maintain or increase their fecundity 
and abundance, butterflies need access to mates. The Sacramento 
Mountains checkerspot butterfly is not a long-distance flier and 
probably relies on local abundance and population density and 
particular mate-location behaviors to successfully mate and reproduce 
(Pittenger and Yori 2003, p. 39). Higher densities and more abundant 
individuals result in more successful mating attempts and ensure the 
subspecies' viability. Metapopulation dynamics are also maintained by 
abundance and density within meadows (Pittenger and Yori 2003, pp. 39-
40).
Host Plants
    The most crucial habitat factor for the Sacramento Mountains 
checkerspot butterfly is the New Mexico beardtongue's presence and 
abundance (McIntyre 2021, pers. comm.). The larvae rely nearly entirely 
upon the New Mexico beardtongue during pre- and post-diapause. Because 
of the Sacramento Mountains checkerspot butterfly's dependency on New 
Mexico beardtongue, it is vulnerable to any type of habitat 
degradation, which reduces the host plant's health and abundance 
(Service et al. 2005, p. 9).
    New Mexico beardtongue is a member of the Plantaginaceae, or 
plantain, family (Oxelman et al. 2005, p. 425). These perennial plants 
prefer wooded slopes or open glades in ponderosa pine and spruce/fir 
forests at elevations between 1,830 and 2,750 meters (m) (6,000 and 
9,000 feet (ft)) (New Mexico Rare Plant Technical Council 1999, 
entire). New Mexico beardtongue is native to the Sacramento Mountains 
within Lincoln and Otero Counties (Sivinski and Knight 1996, p. 289). 
The plant is perennial, has purple or violet-blue flowers, and grows to 
be half a meter tall (1.9 ft). New Mexico beardtongue occurs in areas 
with loose soils or where there has been recent soil disturbance, such 
as eroded banks and pocket gopher burrows (Pittenger and Yori 2003, p. 
ii). Some plant species within the plantain family, including the New 
Mexico beardtongue, contain iridoid glycosides, a family of organic 
compounds that are bitter and an emetic (vomit-inducing) for many birds 
and small mammal species. The Sacramento Mountains checkerspot 
butterfly, like other subspecies of Euphydryas anicia, sequester the 
iridoid glycosides as caterpillars. It is believed that these compounds 
make the larvae and adult butterflies distasteful or unpalatable to 
predators (Gardner and Stermitz 1987, pp. 2152-2167).
Nectar Sources
    Access to nectar sources is needed for adult Sacramento Mountains 
checkerspot butterflies to properly carry out their life cycle. The 
primary adult nectar source is orange sneezeweed (Hymenoxys hoopesii) 
(Service et al. 2005, p. 9). Forest Service personnel observed 
butterflies visiting orange composite flowers (family Asteraceae), 
including orange sneezeweed, as much as 90 percent of the time during 
surveys (Forest Service 2000, p. 4). Other surveys have shown that 
adult butterflies are closely associated with orange sneezeweed flowers 
(McIntyre 2010, p. 26). Although orange sneezeweed flowers are most 
frequently used, the butterfly has been observed collecting nectar from 
various other native nectar sources (Service et al. 2005, pp. 9-10). To 
contribute to the subspecies' viability, orange sneezeweed and other 
native nectar sources must bloom at a time that corresponds with the 
emergence of adult Sacramento Mountains checkerspot butterflies. 
Although orange sneezeweed flowers are most frequently used, the 
butterfly has been observed collecting nectar on various other native 
nectar sources (Service et al. 2005, pp. 9-10). If orange sneezeweed is 
not blooming during the adult flight period (i.e., experiencing 
phenological mismatch), survival and the butterfly's fecundity could 
decrease. In this case, other species of nectar-producing flowers might 
be essential for adult butterflies to complete their life cycle.
Habitat Connectivity
    Before human intervention, the habitat of the Sacramento Mountains 
checkerspot butterfly is thought to have been dynamic, with meadows 
forming and reconnecting due to natural wildfire

[[Page 6184]]

regimes (Service et al. 2005, p. 21). These patterns and processes 
would have facilitated natural dispersal and recolonization of meadow 
habitats following disturbance events, especially when there was high 
butterfly population density in adjacent meadows (Service et al. 2005, 
p. 21). Currently, spruce-fir forests punctuate suitable butterfly 
meadow habitats, creating intrinsic barriers to butterfly dispersal and 
effectively isolating populations from one another (Pittenger and Yori 
2003, p. 1). Preliminary genetic research suggested there is extremely 
low gene flow across the subspecies' range or between meadows surveyed 
(Ryan 2021, pers. comm.). If new sites are to become colonized or 
recolonized by the butterfly, meadow areas will need to be connected 
enough to allow dispersal from occupied areas. Therefore, habitat 
connectivity is needed for genetically healthy populations across the 
subspecies' range (Service 2021, p. 8).

Risk Factors for the Sacramento Mountains Checkerspot Butterfly

    We reviewed the potential risk factors (i.e., threats, stressors) 
that could be currently affecting the Sacramento Mountains checkerspot 
butterfly. In this rule, we will discuss only those factors in detail 
that could meaningfully impact the status of the subspecies. Those risk 
factors that are unlikely to have significant effects on Sacramento 
Mountains checkerspot butterfly populations, such as human collection, 
disease, parasites, predation, insecticides, and habitat loss, are not 
discussed here but are evaluated in the current condition assessment 
report.
    The primary risk factors (i.e., threats) affecting the status of 
the Sacramento Mountains checkerspot butterfly are incompatible grazing 
(Factor A), recreation (Factor A), climate change (Factor E), invasive 
and nonnative plants (Factor A), and an altered wildfire regime (Factor 
A).
Incompatible Grazing
    Historically, Merriam's elk (Cervus canadensis merriami), an 
extinct subspecies of elk, grazed meadows within the Sacramento 
Mountains. Under normal conditions, this species likely coexisted 
without impacting the existence of the butterfly. Rocky Mountain elk 
(Cervus canadensis nelsoni) have been introduced to the Sacramento 
Mountains, filling the ecological niche previously occupied by 
Merriam's elk (New Mexico Department of Game and Fish 2009, 
unpaginated). At natural population levels and normal environmental 
conditions, elk do not pose a significant threat to the Sacramento 
Mountains checkerspot butterfly or its habitat. In fact, some studies 
have shown a positive correlation between elk grazing and caterpillar 
abundance (McIntyre 2010, pp. 66-69). However, should elk herds expand 
beyond natural levels or occur during times of resource scarcity, such 
as extended periods of drought, browse pressure from elk could pose a 
significant threat to the butterfly's habitat and viability (Service 
2021, p. 13).
    Additionally, feral horses were inadvertently released from the 
Mescalero Apache Reservation and dispersed onto the Lincoln National 
Forest around 2012. Horses are not native to the Sacramento Mountains 
and add significant browse pressure to meadows. Larger than elk, horses 
consume large quantities of vegetation and graze more heavily in each 
area before moving to seek more food (Lightfoot 2022, pers. comm.).
    The New Mexico beardtongue is not the main source of food for 
horses or elk. However, research has shown that elk do selectively 
browse on large, more robust New Mexico beardtongue plants, which are 
often the same individual plants selected by female Sacramento 
Mountains checkerspot butterflies for depositing eggs (McIntyre 2010, 
p. 72). During dry conditions, such as has been seen over the past 10 
years, there is less forage on the landscape overall, which increases 
browse pressure on perennials such as New Mexico beardtongue.
    During these times of prolonged drought, synergistic effects lead 
to increased habitat degradation, during which times both butterflies 
and elk can be negatively impacted by increased temperature, decreased 
precipitation, and increased browse pressure from other ungulates. 
Under such conditions, New Mexico beardtongue remains as small rosettes 
less than an inch tall and does not flower when there is significant 
browse pressure from large herbivores. These small, stunted plants are 
not large enough to support colonies of caterpillars; any larvae will 
starve after hatching (Forest Service 2020, p. 11).
    The combined effects of feral horse and elk browsing, compounded by 
drought due to climate change, have significantly impacted habitat 
within meadow ecosystems in the range of the Sacramento Mountains 
checkerspot butterfly. Over the past several years, sustained drought 
in Otero County has driven large herbivores to graze most meadow areas 
to the ground (McMahan et al. 2021, pp. 1-2). Currently, vegetation for 
host plant and nectar sources is scarce in all the meadows throughout 
the range of the Sacramento Mountains checkerspot butterfly (Forest 
Service 2020, p. 11).
    Impacts of livestock grazing on native wildlife in Southwestern 
montane ecosystems vary depending on the timing, duration, and 
intensity of grazing (Service et al. 2005, p. 32). Grazing intensities 
and durations that exceed the ability of herbaceous plants to recover 
or survive are detrimental to the Sacramento Mountains checkerspot 
butterfly (Service et al. 2005, p. 31). Drought and increased 
temperatures can exacerbate this trend. Overgrazing by stock animals 
has led to the extinction of some butterfly populations in the United 
States, including butterflies in the genus Euphydryas (Murphy & Weiss 
1988, p. 187).
    The Forest Service permits livestock grazing in select allotments 
on the Lincoln National Forest in the Sacramento Mountains. The 
butterfly's range occurs within about 17 acres (ac) (7.2 hectares (ha)) 
of the Russia Canyon Allotment (Forest Service 2004, entire), which has 
two grazing permittees. The Pumphouse Allotment also contains suitable 
butterfly habitats open to livestock grazing (Service et al. 2005, p. 
1; Forest Service 2009, p. 1). Most of the butterfly's range is 
encompassed by the James Canyon Allotment. Currently, the James Canyon 
Allotment is vacant (Forest Service 2009, p. 2). At this time, the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.) analysis has 
not yet been finalized, and the James Canyon Allotment remains 
ungrazed.
    The areas where grazing allotments overlap the subspecies' range do 
not currently contain extant populations of the Sacramento Mountains 
checkerspot butterfly (Service 2021, p. 12). Extant populations are 
currently within the ungrazed James Canyon Allotment. Therefore, 
butterfly individuals are not currently in direct competition with 
domestic livestock for habitat resources. However, there have been 
significant impacts from grazing in the past (Lightfoot 2022, pers. 
comm.).
    Livestock grazing, primarily by cattle, has historically been 
practiced throughout the meadows inhabited by the Sacramento Mountains 
checkerspot butterfly (Service et al. 2005, p. 29). However, based on 
the currently available information, the exact relationship between 
Sacramento Mountains checkerspot butterfly population abundance and 
cattle grazing is not well understood (Service et al. 2005, p. 30). It 
is likely the effect of cattle grazing on butterfly abundance varies, 
depending on the current habitat and climatic conditions. Cattle 
grazing can result in direct mortality by

[[Page 6185]]

trampling eggs and larva or by consuming host plants (White 1986, p. 
54), impacting butterfly habitat by changing abundance and distribution 
of host and nectar plants, reducing vegetative cover, altering 
vegetative communities, compacting and eroding soil, and reducing 
natural disturbance regimes (i.e., gopher activity) (Service et al. 
2005, p. 29). In some cases, cattle can increase host plant abundance 
by grazing on competing plant species (Weiss 1999, p. 1480). However, 
New Mexico beardtongue is consumed by cattle as well, and grazing might 
reduce available plants and impact the butterfly's presence and 
survival (McIntyre 2010, pp. 94-104). Research on population abundance 
in response to grazing for other butterfly species has shown that 
results vary depending on the species and system studied (Service et 
al. 2005, p. 30), and Forest Service surveys did not show a strong 
correlation between grazing and butterfly abundance (Forest Service 
2004, p. 7).
    Due to current habitat conditions, it is likely that in the areas 
of the butterfly's range where grazing does occur, that livestock 
grazing continues to degrade habitat for the Sacramento Mountains 
checkerspot butterfly. Outside of drought conditions, it might be 
possible to collect data on the effects of cattle grazing on Sacramento 
Mountains checkerspot butterfly habitat and establish an adaptive 
management plan for grazing within butterfly habitat. However, current 
conditions of butterfly habitat are not compatible with cattle grazing.
    In summary, incompatible grazing has resulted in decline of 
suitable habitat, limiting larval host plants and adult nectar sources 
for the Sacramento Mountains checkerspot butterfly. All meadow units 
within the subspecies' range reflect impacts from past and recent 
grazing.
Recreation
    Over the past 10 years, recreation has increased in the Lincoln 
National Forest. The September 6, 2001, proposed listing rule (66 FR 
46575) determined that off-road vehicle use on Forest Service trails 
posed some threat to meadow units; off-road vehicle use continues to 
this day and has increased in popularity. Large recreational vehicle 
(RV) use has also increased, and the Forest Service does not require 
permits for parking vehicles within the Lincoln National Forest 
(Service 2021, p. 14). Meadows within the range of the Sacramento 
Mountains checkerspot butterfly are popular with RV users because they 
are open, flat, and easily accessible by road (Hughes 2021b, pers. 
comm.). A variety of these impacts (e.g., soil compaction, barren 
ground, trampled food plants, multiple trails, vehicle tracking) are 
evident in areas used by larval and adult life stages of the Sacramento 
Mountains checkerspot butterfly; these impacts are reducing the quality 
or quantity of suitable habitat in and around developed campgrounds or 
undeveloped campsites in meadows known to support the Sacramento 
Mountains checkerspot butterfly (Hughes 2021b, pers. comm.).
    Recreation can negatively affect the butterfly in several ways. 
Trampling and crushing can physically kill both individual butterflies 
and caterpillars. While adults can fly away, these butterflies are 
slow, especially on cold mornings. Recreational activities can also 
crush plants, including New Mexico beardtongue and orange sneezeweed. 
During times of drought, these plants are especially vulnerable and 
unlikely to survive repeated damage (Service 2021, p. 14). 
Additionally, RVs compact soil where large vehicles are parked. 
Repeated trampling by humans around the vehicles, caused by normal 
camping activities, will further compact soils, making it less likely 
for New Mexico beardtongue to recover or re-establish in former 
campsites (Hughes 2021b, pers. comm.).
    In summary, recreation by humans can directly kill Sacramento 
Mountains checkerspot butterflies and their larvae. All meadow units 
within the range are experiencing some level of impact from recreation.
Climate Change
    Climate change is impacting natural ecosystems in the southwestern 
United States (McMahan et al. 2021, p. 1). The Sacramento Mountains are 
sky islands surrounded by a matrix of desert grassland, which hosts a 
unique mix of flora and fauna (Brown et al. 2001, p. 116). This 
ecosystem is sensitive even to small changes in temperature and 
precipitation regimes. Such changes to the environment can 
significantly alter air temperature, the amount of precipitation, and 
the timing of precipitation events (Service et al. 2005, p. 37).
    New Mexico has been in a drought for the past several years. 
Roughly 54 percent of New Mexico is currently experiencing an 
exceptional drought, including the Sacramento Mountains (McMahan et al. 
2021, pp. 1-2). Droughts of this severity push wildlife to alter 
behavior based on available resources, while vegetation in habitats 
becomes extremely degraded (McMahan et al. 2021, entire).
    Over the past several years, annual precipitation levels have 
decreased throughout the butterfly's range. Snowfall and corresponding 
snowpack have remained well below normal levels (Forest Service 2020, 
pp. 11-12). Some alpine butterflies need high levels of snowpack during 
diapause to shelter from wind and cold temperatures. The same might be 
true for the Sacramento Mountains checkerspot butterfly, as the 
subspecies likely evolved with higher levels of winter snowpack than 
have been experienced over the past decade (Hughes 2021a, pers. comm.). 
However, while snowpack might be an important factor, we do not have 
enough evidence to analyze the effects of low snow years on the 
butterfly.
    Recent shifts in climate can impact how species interact with their 
environment. The timing of butterfly life-history events during an 
annual cycle can shift due to increases in temperature, changes in 
humidity, and length of growing season. These shifts can directly be 
attributed to the effects of climate change. For habitat specialists 
such as the Sacramento Mountains checkerspot butterfly, shifts in 
phenological timing can have important consequences for population 
dynamics and viability (Colorado-Ruiz et al. 2018, pp. 5706-5707). It 
is likely that climate change has already caused some level of 
phenotypic mismatch (when life-history traits are no longer 
advantageous due to changes in the environment) between the butterfly, 
its host plants, and its nectar sources (Service 2022, p. 9). This 
shift negatively impacts the butterfly because it has adapted to 
specific timing of resource availability (i.e., growth of host plants, 
blooming of nectar sources) in various stages of its life cycle, and 
climate change has altered the timing, quality, and quantity of those 
resources.
    The Sacramento Mountains checkerspot butterfly needs adequate 
vegetation growth in host plants and nectar sources during the summer 
months to survive (Service et al. 2005, p. 15). Vegetation growth 
within the butterfly's range appears to rely heavily on summer rains. 
Large rainfall events typically form during the mid-summer months in 
the Sacramento Mountains, marking the beginning of the monsoon season. 
These midday showers occur almost daily for several months, stimulating 
much of the vegetation to grow and proliferate during the midsummer 
season. Specifically, New Mexico beardtongue growth increases in 
response to the monsoons. It is thought that moisture might also 
encourage the butterflies to emerge from diapause as well (Service et 
al. 2005, pp. 37-38).

[[Page 6186]]

    Climate change is impacting the timing of monsoon events throughout 
the Southwest (Service 2021, p. 15). New Mexico beardtongue and other 
plant species in subalpine meadows are adapted to the pulse of moisture 
from monsoons (Service et al. 2005, pp. 37-38). With a lack of, or 
altered, monsoon rains, the butterfly is at risk, as the subspecies 
relies on vegetation growth dependent upon the timing of precipitation.
    The 2020 monsoon season was an exceptionally weak one, with far 
less precipitation falling than in an average summer (McMahan et al. 
2021, unpaginated). As a result, New Mexico beardtongue growth was also 
weak; few plants grew larger than small rosettes on the ground. Even 
fewer plants survived to produce flowers (Forest Service 2020, p. 12). 
Some experts believe that the dry conditions, compounded with increased 
browse pressure from large ungulates, contributed to the deterioration 
of habitat throughout the Sacramento Mountains checkerspot butterfly's 
range (Ryan et al. 2021, pers. comm.).
    In 2021, the monsoon season in the Sacramento Mountains produced 
heavy precipitation and several flash-flood events (Hergert et al. 
2022, unpaginated). While this precipitation allowed vegetation to 
temporarily recover, it also caused erosion in some meadow habitat 
(Hughes 2022, pers. comm.). Despite these large precipitation events 
during the summer months of 2021, the Sacramento Mountains remain in a 
moderate to severe drought (U.S. Drought Monitor, https://droughtmonitor.unl.edu/, accessed June 30, 2022) and impacts to the 
butterfly's habitat from climate change are likely to continue.
    In summary, climate change adversely impacts the viability of the 
Sacramento Mountains checkerspot butterfly. All meadow units within the 
subspecies' range are experiencing impacts from climate change.
Invasive, Nonnative Plants
    Invasive, nonnative plants have begun to encroach into meadow areas 
within the Lincoln National Forest. Other species of butterfly had 
become scarcer when nonnative plants appeared in suitable butterfly 
habitats (Hughes 2021a, pers. comm.). During the drought, Kentucky 
bluegrass (Poa pratensis) proliferated within meadow areas. This 
aggressive, nonnative plant, whose seeds are primarily windblown, can 
outcompete native wildflowers, such as New Mexico beardtongue. As 
invasive, nonnative plants begin to expand their influence, native 
plants, including host and nectar plants for butterflies, such as New 
Mexico beardtongue and orange sneezeweed, are likely to be outcompeted 
and become more scarce (Kennedy 2020, pers. comm.; 62 FR 2313, January 
16, 1997).
    In summary, invasive, nonnative plants can outcompete the native 
plants that Sacramento Mountains checkerspot butterflies and their 
larvae require. All meadow units within the subspecies' range are 
experiencing some level of impact from nonnative plants.
Altered Wildfire Regime
    Fire is a natural part of the Sacramento Mountains ecosystem and 
would have historically maintained many of the ecosystem processes 
within the Sacramento Mountains checkerspot butterfly's range. Humans 
have largely suppressed wildfires over the past 150 years (Service et 
al. 2005, p. 21). Before human intervention, there would have been 
gradual ecosystem clines between meadows and forests. Grassland 
corridors or sparsely forested glades would have connected meadow 
areas. These habitat types would have allowed for the butterfly to pass 
through, thereby maintaining metapopulation dynamics. Fire exclusion 
and suppression have reduced the size of grasslands and meadows by 
allowing the encroachment of conifers, and these trends are projected 
to continue (Service et al. 2005, pp. 21-22). No significant wildfires 
have occurred in the butterfly's habitat since 1916 (Service et al. 
2005, p. 21). Before active fire suppression, fire in the Sacramento 
Mountains occurred at intervals between 3 and 10 years (Forest Service 
1998, p. 63). These frequent, cool, low-intensity, surface fires 
historically maintained a forest that was more open (i.e., more non-
forested patches of different size; more large, older trees; and fewer 
dense thickets of evergreen saplings). Such low-intensity fires are now 
rare events. A large fire can occur within the range of the subspecies; 
there have been at least nine large, hot, high-intensity wildfires 
(over 90,000 ac (34,000 ha)) in the Sacramento Mountains during the 
past 50 years (Forest Service 1998, p. 63). Trees and other woody 
vegetation have begun encroaching into suitable meadow habitats for the 
butterfly. Current forest conditions make the chances of a high-
severity fire within the range of the butterfly increasingly likely 
(Service et al. 2005, p. 21).
    It is likely that fire exclusion and historical cattle grazing have 
altered and increased the threat of wildfire in ponderosa pine (Pinus 
ponderosa) and mixed conifer forests in the semi-arid western interior 
forests, including New Mexico (Forest Service 1998, pp. 3, 63). 
Further, there has been a general increase in the dominance of woody 
plants, with a decrease in the herbaceous (non-woody) ground cover used 
by the butterfly (Service et al. 2005, pp. 32-33). These data indicate 
that the quality and quantity of the available butterfly habitat is 
decreasing rangewide. Therefore, we conclude that wildfire exclusion 
has substantially affected the subspecies and will likely continue to 
significantly degrade the quality and quantity of suitable habitat.
    In summary, the altered fire regime can impact Sacramento Mountains 
checkerspot butterflies and their larvae. All meadow units within the 
subspecies' range are experiencing adverse impacts from altered fire 
regimes.
Summary
    Our analysis of the current influences on the needs of the 
Sacramento Mountains checkerspot butterfly for long-term viability 
revealed there are several threats that pose the largest risk to 
viability: incompatible grazing, recreation, climate change, invasive 
and nonnative plants, and an altered wildfire regime. These influences 
reduce the availability of host plants and nectar sources, thereby 
reducing the quantity and quality of essential habitat for the 
subspecies, in addition to reducing its ecological and genetic 
diversity.

Species Condition

    The current condition of the Sacramento Mountains checkerspot 
butterfly considers the risks to those populations that are currently 
occurring. In the current condition assessment report, for each 
population, we developed and assigned condition categories for two 
demographic factors and three habitat factors that are important for 
the viability of the Sacramento Mountains checkerspot butterfly. The 
condition scores for each habitat factor were then used to determine an 
overall condition of each population and meadow: high, moderate, low, 
very low, or extirpated.
    Two populations of the Sacramento Mountains checkerspot butterfly 
remain in two meadows, Bailey Canyon and Pines Meadow Campground. 
Historically, the populations likely had greater connectivity, but 
today they are small and isolated due to the altered wildfire regime, 
which fostered a greater extent and density concentration of trees 
separating habitat meadows. Dispersal and colonization of extirpated 
locations is unlikely without human

[[Page 6187]]

assistance. If butterflies have not been detected at any site once or 
more during the last 3 years, we consider that population to be 
extirpated. The two remaining populations are in very low condition in 
terms of demographic factors (adult density and larval density) (see 
table 1, below) and low condition in terms of overall meadow condition 
(see table 2, below). There have not been any observations of adults or 
larvae in the past 3 consecutive years in any of the other eight 
populations, and we therefore consider them to be demographically 
extirpated. Six of those eight populations have very low overall meadow 
condition, and two are considered extirpated for overall meadow 
condition because suitable habitat for the Sacramento Mountains 
checkerspot butterfly no longer exists there.

       Table 1--Current Condition of Demographic Factors of the Sacramento Mountains Checkerspot Butterfly
----------------------------------------------------------------------------------------------------------------
                                                                    Demographic factors
               Meadow unit                ----------------------------------------------------------------------
                                                      Adult density                      Larval density
----------------------------------------------------------------------------------------------------------------
Bailey Canyon............................  Very Low..........................  Very Low.
Pines Meadow Campground..................  Very Low..........................  Very Low.
Cox Canyon...............................  Extirpated........................  Extirpated.
Silver Springs Canyon....................  Extirpated........................  Extirpated.
Pumphouse Canyon.........................  Extirpated........................  Extirpated.
Sleepygrass Canyon.......................  Extirpated........................  Extirpated.
Spud Patch Canyon........................  Extirpated........................  Extirpated.
Deerhead Canyon..........................  Extirpated........................  Extirpated.
Horse Pasture Meadow.....................  Extirpated........................  Extirpated.
Yardplot Meadow..........................  Extirpated........................  Extirpated.
----------------------------------------------------------------------------------------------------------------


         Table 2--Current Condition of Habitat Factors of the Sacramento Mountains Checkerspot Butterfly
----------------------------------------------------------------------------------------------------------------
                                                      Habitat factors
         Meadow unit          ---------------------------------------------------------------   Overall  meadow
                                   Host plants         Nectar sources        Connectivity          condition
----------------------------------------------------------------------------------------------------------------
Bailey Canyon................  Very Low...........  Low................  Moderate...........  Low.
Pines Meadow Campground......  Very Low...........  Low................  Moderate...........  Low.
Cox Canyon...................  Very low...........  Low................  Low................  Very Low.
Silver Springs Canyon........  Very Low...........  Low................  Moderate...........  Very Low.
Pumphouse Canyon.............  Very Low...........  Low................  Low................  Very Low..
Sleepygrass Canyon...........  Very Low...........  Low................  Moderate...........  Very Low.
Spud Patch Canyon............  Very Low...........  Low................  Moderate...........  Very Low.
Deerhead Canyon..............  Extirpated.........  Very Low...........  Low................  Very Low.
Horse Pasture Meadow.........  Extirpated.........  Extirpated.........  High...............  Extirpated.
Yardplot Meadow..............  Extirpated.........  Extirpated.........  Low................  Extirpated.
----------------------------------------------------------------------------------------------------------------

    Bailey Canyon and Pines Meadow Campground are two adjacent meadows 
in the northwest part of the Sacramento Mountains checkerspot 
butterfly's range. During the 2020 survey season, approximately eight 
butterflies were detected in both meadows combined (Forest Service 
2020, p. 3), and no larval tents were found (Forest Service 2020, pp. 
1-3; Hughes 2020, pers. comm.). One individual observed dozens of 
Sacramento Mountains checkerspot butterflies in Bailey Canyon in 2020 
(Banker 2022, pers. comm.). In 2021, surveys detected 23 adult 
butterflies and two larval tents (Hughes 2022, pers. comm.). Larvae 
from the two tents were taken into captivity by experienced biologists 
to establish a captive refugia (Williams 2021, pers. comm.). Although 
the 2021 field season represented an increase in population numbers, 
the adult and larval density levels remain at historical lows. We 
categorized resiliency for demographics as very low for both meadows, 
which were the only two meadows where butterflies were found. In 
addition, the overall meadow condition for these sites was low because 
there are few host plants and nectar sources present. Although nectar 
sources are present, they are not blooming or providing enough 
resources for the butterfly colonies. These meadows are within 800 
meters of each other, which is within the dispersal distance of the 
butterfly, allowing for potential gene flow between populations.
    Overall resiliency of Sacramento Mountains checkerspot butterfly 
populations is very low for demographic factors and low for habitat 
factors. This is because butterflies were only found in 2 of the 10 
documented meadows, and both had very low recorded adult and larval 
abundance and density numbers. Additionally, these two meadows have 
poor habitat conditions (few host plants, nectar sources are abundant 
but provide insufficient resources, and some connectivity to other 
meadows), and the other eight meadows have either very low condition or 
are extirpated in terms of habitat factors.
    We define a species' representation by assessing ecological and 
genetic diversity. As a narrow-range endemic, the entire range of the 
Sacramento Mountains checkerspot butterfly is approximately 32 square 
miles. However, suitable habitat within this range is limited to only 
about 2 square miles. Today, only 0.2 square miles might be occupied by 
the butterfly. This range contraction suggests that most of the 
original representation present within the subspecies has declined. The 
entirety of the butterfly's range represents one representation area 
because of the narrow range and limited ecological diversity. The 
extant populations are small and isolated in this single representation 
area with no current connectivity between those two populations. There 
is some connectivity between habitat patches, but there is no 
connectivity between extant

[[Page 6188]]

populations. The occupied meadows are among spruce-fir forests, so some 
barriers limit the dispersal of individuals among the populations. Due 
to the limited habitat connectivity of populations, individual 
Sacramento Mountains checkerspot butterflies rarely, if ever, travel 
between populations. This effectively restricts the transfer of genetic 
material, thus limiting genetic diversity. There was likely greater 
habitat connectivity between populations in the past due to a more 
natural fire regime. Therefore, overall representation was always 
limited for this subspecies and has declined since 2010.
    We define redundancy for the Sacramento Mountains checkerspot 
butterfly as multiple populations or metapopulations spread across the 
subspecies' range. There are only 2 extant Sacramento Mountains 
checkerspot butterfly populations located in adjacent meadows out of 10 
documented populations within the single representation area. Given the 
historical distribution of the butterfly, it is likely that Sacramento 
Mountains checkerspot butterfly populations were more abundant within 
the Sacramento Mountains prior to European colonization of the area. 
Therefore, redundancy of the butterfly has declined over time. As a 
consequence of these current conditions, the viability of the 
Sacramento Mountains checkerspot butterfly primarily depends on 
maintaining and restoring the remaining isolated populations and 
reintroducing populations where feasible.
    We incorporated the cumulative effects of the operative threats 
into our analysis when we characterized the current condition of the 
subspecies. Because our characterization of current condition considers 
not just the presence of the factors, but to what degree they 
collectively influence risk to the entire subspecies, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

    Several habitat management actions might benefit the viability of 
the Sacramento Mountains checkerspot butterfly. To address the threat 
of overgrazing from large ungulates, the Lincoln National Forest 
erected exclosures to protect butterfly habitats from browsing. These 
efforts are currently focused within Bailey Canyon and Pines Meadow 
Campground, where adult butterflies are extant. Botanists involved with 
the Sacramento Mountains checkerspot butterfly working group have 
planted New Mexico beardtongue, orange sneezeweed, and other pollinator 
plants within exclosures for habitat restoration. These efforts will 
help ensure the individual needs of larvae and adult butterflies are 
met.
    In 2021, the Institute for Applied Ecology, Forest Service, and 
other partners initiated a conservation project to address, enhance, 
and restore Sacramento Mountains checkerspot butterfly habitat. 
Biologists collected, cleaned, propagated, and mixed seeds containing 
New Mexico beardtongue and four nectar species, including orange 
sneezeweed. These plants and seeds were then planted into prepared 
sites within both grazing exclosure fences and protective tubing. 
Plants were watered by Forest Service staff. Survival rates of 
plantings were assessed by the Forest Service in late fall and 
determined to be high (greater than 90 percent). Funds were provided by 
the Forest Service and the Native Plant Society of New Mexico (Gisler 
2022, pers. comm.).
    The Forest Service has proposed that fire management aimed at 
reducing tree stocking within forested areas surrounding meadows might 
also help restore suitable habitat and connectivity throughout the 
range of the butterfly. Maintaining edge habitat and connectivity could 
greatly improve the butterfly's viability in the long term.

Determination of Sacramento Mountains Checkerspot Butterfly's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
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.

Status Throughout All of Its Range

    After evaluating threats to the subspecies and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that the Sacramento Mountains checkerspot butterfly 
has declined in abundance, density, and number of populations. 
Currently, there are only two extant populations where the subspecies 
exists in very low abundances and are isolated from one another. 
Furthermore, existing available habitat is reduced in quantity and 
quality relative to historical conditions. Our analysis revealed 
several threats that caused these declines and pose a meaningful risk 
to the viability of the subspecies. These threats are primarily related 
to habitat changes (Factor A) and include incompatible grazing, 
recreation, invasive and nonnative plants, and an altered wildfire 
regime, in addition to climate change (Factor E).
    Over the past two decades, the Sacramento Mountains checkerspot 
butterfly has declined, both in abundance and in the area occupied 
(Forest Service 2020, p. 2). Because of increased populations of 
ungulates (i.e., horses), grazing has increased in the subalpine 
meadows that support the Sacramento Mountains checkerspot butterfly, 
reducing the availability of host plants and nectar sources. The 
reduction in habitat quality and quantity is further exacerbated by the 
impact of drought associated with climate change. Additionally, the 
altered wildfire regime has decreased habitat connectivity, and now 
populations are more isolated from one another, with no dispersal among 
populations.
    We considered sites with butterfly detections during the last 3 
years to be extant for the purposes of this determination. Because 
adults or larvae have not been observed in the past 3 consecutive years 
in 8 of the 10 populations, we consider those 8 populations 
functionally extirpated. The two remaining populations are extremely 
small and isolated. The habitat at those sites is currently in very low 
condition due to a lack of both host plants for larvae and nectar 
sources for adults.
    Historically, the subspecies, with more abundant and larger 
populations, would have been more resilient to stochastic events. Even 
if such events extirpated some populations, they could be recolonized 
over time by dispersal from nearby surviving populations. Because many 
of the areas of suitable habitat may be small and support small numbers 
of butterflies, local extirpation

[[Page 6189]]

of these small populations is probable. A metapopulation's persistence 
depends on the combined dynamics of these local extirpations and the 
subsequent recolonization of these areas by dispersal (Murphy and Weiss 
1988, pp. 192-194). Habitat loss and the altered wildfire regime have 
reduced the size of and connectivity between patches of suitable 
butterfly habitat. The reduction in the extent of meadows and other 
suitable non-forested areas has likely eliminated connectivity among 
some localities and may have increased the distance beyond the normal 
dispersal capability of the Sacramento Mountains checkerspot butterfly, 
making recolonization of some patches following local extirpation more 
difficult. In addition, habitat deterioration or reduction lowers the 
quality of remaining habitat by reducing the diversity of microclimates 
and food plants for larvae and adult butterflies (Murphy and Weiss 
1988, p. 190).
    Preliminary genetic evidence suggests little gene flow between 
these units (Ryan 2021, pers. comm.). Connectivity, which would promote 
resiliency and representation, has been lost. Eight populations are 
functionally extirpated, and the remaining two populations are in very 
low condition in terms of demographic factors, are in low condition in 
terms of habitat factors, and are at high risk of loss. The Sacramento 
Mountains checkerspot butterfly is extremely vulnerable to catastrophic 
events (i.e., high-intensity, large wildfires) in suitable butterfly 
habitats.
    In summary, much of the remaining suitable butterfly habitat, and 
therefore the long-term viability of the subspecies, is at risk due to 
the direct and indirect effects of incompatible grazing, recreation, 
climate change, invasive and nonnative plants, and an altered wildfire 
regime. The remaining populations are fragmented, isolated from one 
another, and unable to recolonize naturally. The populations are 
largely in a state of chronic ongoing, intensifying degradation due to 
habitat loss, which is exacerbated by climate change, limiting the 
subspecies' resiliency. The limited geographic range of the Sacramento 
Mountains checkerspot butterfly increases the threat of extinction for 
this subspecies given the expected continuing loss and degradation of 
suitable habitat and increased risks of extinction from catastrophic 
events, such as wildfire. Historically, with a larger range of 
interconnected populations, the butterfly would have been more 
resilient to stochastic events because even if some populations were 
extirpated by such events, they could be recolonized over time by 
dispersal from nearby surviving populations. This connectivity, which 
would have made for a sufficiently resilient subspecies overall, has 
been lost, and with two populations in very low demographic condition 
and low habitat condition, the remnant populations are at serious risk 
of imminent loss. A threatened status for the Sacramento Mountains 
checkerspot butterfly is not appropriate because the subspecies has 
already shown significant declines in current resiliency, redundancy, 
and representation due to the threats mentioned above.
    Thus, after assessing the best available information, we determine 
that the Sacramento Mountains checkerspot butterfly is in danger of 
extinction throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the Sacramento Mountains checkerspot 
butterfly is in danger of extinction throughout all of its range and 
accordingly did not undertake an analysis of any significant portion of 
its range. Because the Sacramento Mountains checkerspot butterfly 
warrants listing as endangered throughout all of its range, our 
determination does not conflict with the decision in Center for 
Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) 
(Everson), which vacated the provision of the Final Policy on 
Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (Final Policy) (79 FR 37578, July 1, 2014) 
providing that if the Services determine that a species is threatened 
throughout all of its range, the Services will not analyze whether the 
species is endangered in a significant portion of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Sacramento Mountains checkerspot 
butterfly meets the Act's definition of an endangered species. 
Therefore, we are listing the Sacramento Mountains checkerspot 
butterfly as an endangered species in accordance with sections 3(6) and 
4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition as a listed species, 
planning and implementation of recovery actions, requirements for 
Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification to threatened status (``downlisting'') or removal from 
protected status (``delisting''), and methods for monitoring recovery 
progress. Recovery plans also establish a framework for agencies to 
coordinate their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on

[[Page 6190]]

our website (https://www.fws.gov/program/endangered-species), or from 
our New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Once this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of New Mexico will be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the Sacramento Mountains checkerspot 
butterfly. Information on our grant programs that are available to aid 
species recovery can be found at https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the Sacramento Mountains checkerspot butterfly. 
Additionally, we invite you to submit any new information on this 
butterfly whenever it becomes available and any information you may 
have for recovery planning purposes (see FOR FURTHER INFORMATION 
CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) of the Act requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of any endangered or 
threatened species or destroy or adversely modify its critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with the Service.
    Federal agency actions within the species' habitat that may require 
conference, consultation, or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the Forest Service.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of the listed species. 
Based on the best available information, the following actions are 
unlikely to result in a violation of section 9, if these activities are 
carried out in accordance with existing regulations and permit 
requirements; this list is not comprehensive:
    (1) Possession, delivery, or movement, including interstate 
transport and import into or export from the United States, involving 
no commercial activity, of dead specimens of this taxon that were 
collected prior to the effective date of this final rule (see DATES, 
above);
    (2) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, non-forested area management, 
private or commercial development, recreational trail or forest road 
development or use, road construction, prescribed burns, timber 
harvest, pesticide/herbicide application, or pipeline or utility line 
construction crossing suitable habitat) when such activity is conducted 
in accordance with a biological opinion from the Service on a proposed 
Federal action;
    (3) Low-impact, infrequent, dispersed human activities on foot or 
horseback that do not degrade butterfly habitat (e.g., bird watching, 
sightseeing, backpacking, hunting, photography, camping, hiking);
    (4) Activities on private lands that do not result in the take of 
the Sacramento Mountains checkerspot butterfly, including those 
activities involving loss of habitat, such as normal landscape 
activities around a personal residence, proper grazing management, road 
construction that avoids butterfly habitat, and pesticide/herbicide 
application consistent with label restrictions; and
    (5) Activities conducted under the terms of a valid permit issued 
by the Service pursuant to section 10(a)(1)(A) or 10(a)(1)(B) of the 
Act.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Capture (i.e., netting), survey, or collection of specimens of 
this taxon without a permit from the Service pursuant to section 
10(a)(1)(A) of the Act;
    (2) Incidental take of Sacramento Mountains checkerspot butterfly 
without a permit pursuant to section 10(a)(1)(B) of the Act;
    (3) Sale or purchase of specimens of this taxon, except for 
properly documented antique specimens of this taxon at least 100 years 
old, as defined at section 10(h)(1) of the Act;
    (4) Use of pesticides/herbicides that results in take of Sacramento 
Mountains checkerspot butterfly;

[[Page 6191]]

    (5) Unauthorized release of biological control agents that attack 
any life stage of this taxon;
    (6) Removal or destruction of the native food plants being used by 
Sacramento Mountains checkerspot butterfly, defined as Penstemon 
neomexicanus, Helenium hoopesii, or Valeriana edulis, within areas that 
are used by this taxon that results in harm to this butterfly; and
    (7) Destruction or alteration of Sacramento Mountains checkerspot 
butterfly habitat by grading, leveling, plowing, mowing, burning, 
herbicide or pesticide spraying, incompatible grazing, or otherwise 
disturbing non-forested openings that result in the death of or injury 
to eggs, larvae, or adult Sacramento Mountains checkerspot butterflies 
through significant impairment of the taxon's essential breeding, 
foraging, sheltering, or other essential life functions.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the New Mexico 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that we designate critical habitat at the time a 
species is determined to be an endangered or threatened species, to the 
maximum extent prudent and determinable. In the January 25, 2022, 
proposed listing rule (87 FR 3739), we determined that designation of 
critical habitat was prudent but not determinable because specific 
information needed to analyze the impacts of designation was lacking. 
We are still in the process of assessing this information. We plan to 
publish a proposed rule to designate critical habitat for the 
Sacramento Mountains checkerspot butterfly in the near future.

Required Determinations

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We solicited information from the 
Mescalero Apache Nation within the range of the Sacramento Mountains 
checkerspot butterfly to inform the development of the current 
condition assessment report, but we did not receive a response. We also 
provided the Mescalero Apache Nation the opportunity to review a draft 
of the current condition assessment report and provide input prior to 
making our final determination on the status of the Sacramento 
Mountains checkerspot butterfly, but also did not receive a response. 
As we move forward with recovery planning and developing a proposed 
critical habitat designation for the Sacramento Mountains checkerspot 
butterfly, we will continue to coordinate with affected Tribes.

References Cited

    A complete list of references cited in this rule is available on 
the internet at https://www.regulations.gov and upon request from the 
New Mexico Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the Fish 
and Wildlife Service's Species Assessment Team and the New Mexico 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.


0
2. In Sec.  17.11, amend paragraph (h) by adding an entry for 
``Butterfly, Sacramento Mountains checkerspot'' to the List of 
Endangered and Threatened Wildlife in alphabetical order under INSECTS 
to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Insects...........................................................................................
 
                                                  * * * * * * *
Butterfly, Sacramento Mountains   Euphydryas anicia   Wherever found....  E              88 FR [INSERT FEDERAL
 checkerspot.                      cloudcrofti.                                           REGISTER PAGE WHERE
                                                                                          THE DOCUMENT BEGINS],
                                                                                          1/31/2023.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-01146 Filed 1-30-23; 8:45 am]
BILLING CODE 4333-15-P