76428 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17

RIN 1018–AT96

Endangered and Threatened Wildlife 

and Plants; Withdrawal of the 

Proposed Rule To List the Sacramento 

Mountains Checkerspot Butterfly as 

Endangered With Critical Habitat

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule; withdrawal.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), withdraw the 

proposed rule published in the Federal 

Register on September 6, 2001 (66 FR 

46575), to list the Sacramento 

Mountains checkerspot butterfly 

(Euphydryas anicia cloudcrofti) 

(butterfly) as endangered with critical 

habitat pursuant to the Endangered 

Species Act of 1973, as amended (Act). 

This withdrawal is based on our 

conclusion that the threats to the 

species as identified in the proposed 

rule are not as significant as earlier 

believed. We base this conclusion on 

our analysis of current threats. We find 

that best scientific and commercial data 

available indicate that the threats to the 

species and its habitat, as analyzed 

under the five listing factors described 

in section 4(a)(1) of the Act, have been 

reduced below the statutory definition 

of threatened or endangered. Therefore, 

we are withdrawing our proposal to list 

the species as endangered.

ADDRESSES: Supporting documentation 

for this rulemaking is available for 

public inspection, by appointment, 

during normal business hours at the 

U.S. Fish and Wildlife Service, New 

Mexico Ecological Services Field Office, 

2105 Osuna Road NE., Albuquerque, 

New Mexico 87113.

FOR FURTHER INFORMATION CONTACT:

Susan MacMullin, Field Supervisor, 

New Mexico Ecological Services Field 

Office (telephone 505–761–4706, 

facsimile 505–346–2542).

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to this final 

listing determination. For more 

information on the butterfly, refer to the 

September 6, 2001 (66 FR 46575) 

proposed rule, and the October 7, 2004 

Conservation Plan (69 FR 60178). 

However, some of this information is 

discussed in our analyses below, such 

as the summary of factors affecting the 

species. 

Previous Federal Action 

On January 28, 1999, we received a 

petition from Mr. Kieran Suckling of the 

Southwest Center for Biological 

Diversity in Tucson, Arizona, dated 

November 1998, which requested that 

we emergency list the butterfly as 

endangered. The petitioner stated that 

the species merits listing because of its 

restricted range, adverse impacts 

resulting from a proposed United States 

Department of Agriculture Forest 

Service (Forest Service) land transfer, 

improvements to a Forest Service 

campground, construction of homes and 

other structures, aggressive nonnative 

weeds that may be affecting the larval 

food plants and adult nectar sources, 

climate change, and livestock 

overgrazing. The petitioner requested 

emergency listing due to the perceived 

immediate threats to the species’

continued existence from a proposed 

land transfer between the Forest Service 

and the Village of Cloudcroft in the 

Sacramento Mountains in Otero County, 

New Mexico. 

In accordance with section 4(b)(3)(A) 

of the Act, we published notice of our 

90-day administrative finding in the 

Federal Register on December 27, 1999 

(64 CFR 72300), that the petitioner 

presented substantial information 

indicating that listing may be warranted, 

but that emergency listing was not 

warranted, and commenced a status 

review. No further action was 

conducted related to the listing of the 

butterfly following the publication of 

the December 27, 1999 finding. 

In response to our failure to make a 

12-month finding within the statutory 

time frame allowed by the Act, the 

Center for Biological Diversity filed a 

lawsuit. On July 31, 2001, the United 

States District Court for the District of 

New Mexico, in Center for Biological 

Diversity v. Gale A. Norton, CIV 01–

0258 PK/RLP ordered us to complete 

and submit for publication to the 

Federal Register a 12-month finding for 

the butterfly within 30 days. On 

September 6, 2001, we published a 

proposed rule to list the butterfly as 

endangered with critical habitat (66 FR 

46575). The proposed rule constituted 

our 12-month administrative finding. As 

part of the rulemaking process, we also 

held one public hearing in Alamogordo, 

New Mexico, on October 18, 2001, and 

extended the public comment period 

until December 5, 2001 (66 FR 49158, 

September 16, 2001). We invited all 

interested parties to submit comments 

on the proposed listing rule and 

proposed critical habitat designation. 

In the proposed rule, we determined 

that the butterfly was in danger of 

extinction throughout all or a significant 

portion of its range because much of the 

remaining suitable habitat and the longterm persistence of the subspecies were 

threatened. At that time, the known 

threats included: Commercial and 

private development, Forest Service 

projects, fire suppression activities, 

highway reconstruction, off-highway 

vehicle use, and overgrazed range 

conditions. Additional background 

information is available in the 

September 6, 2001, proposed rule (66 

FR 46575).

In response to growing interest by the 

local community to conserve the 

butterfly, the Service began 

coordination in 2001 with local and 

Federal partners. Subsequently, we 

developed the ‘‘Conservation Plan for 

the Sacramento Mountains Checkerspot 

Butterfly’’ (Conservation Plan) (see 

‘‘Conservation Plan’’ section below). 

The Conservation Plan was available for 

a 30-day public comment period and 

documents conservation actions that 

will benefit the species (69 FR 60178, 

October 7, 2004). We also held a public 

information meeting in Cloudcroft, New 

Mexico, on October 13, 2004. 

On November 8, 2004, we announced 

the availability of the draft economic 

analysis and draft environmental 

assessment for the proposal to designate 

critical habitat for the butterfly (69 FR 

64710). Section 4 (b)(2) of the Act 

requires that we consider economic 

impacts, impacts to national security, 

and other relevant impacts prior to 

making a final decision on what areas to 

designate as critical habitat. We 

solicited data and comments from the 

public on these draft documents, as well 

as on all aspects of our proposal, so that 

we could consider these in this final 

determination. 

Summary of Comments and 

Recommendations 

In the notices announcing the public 

comment periods, we requested all 

interested parties submit comments on 

the proposed listing and critical habitat 

designation, as well as the associated 

draft economic analysis and draft 

environmental assessment, and 

information pertaining to the 

Conservation Plan or management 

actions that reduce the threats to the 

butterfly, current status, ecology, 

distribution, threats, and management/

conservation efforts in place. We 

requested this information in order to 

make a final listing determination based 

on the best scientific and commercial 

data currently available. During the 

public comment periods, we received 

written comments from a total of 40 

entities, and 22 speakers gave verbal 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76429

comments at the public hearing. 

Substantive information provided in all 

public comments, written and verbal, 

either has been incorporated directly 

into this withdrawal or is addressed 

below. Similar comments are grouped 

together by issue. 

(1) Comment: Commercial and private 

development is not a threat to the 

species, because very little is occurring 

within the range of the butterfly. 

Our Response: The economic analysis 

found that in recent years, 

approximately 8 to 10 new homes have 

been constructed annually within the 

boundary of the proposed critical 

habitat designation. This trend is 

expected to continue into the 

foreseeable future. Based upon this 

estimate, over the next 20 years, 

approximately 160 to 200 small-scale 

residential projects may occur within 

the boundary of proposed critical 

habitat for the butterfly. Of these, the 

economic analysis assumed that 55 to 

69 may conduct butterfly surveys 

because they would be conducted 

within areas that were proposed as 

critical habitat and provide butterfly 

habitat. Eight to 24 of those areas 

surveyed may be found to be in use by 

butterflies (for a detailed discussion see 

Service 2004). This draft economic 

analysis estimated that the median lot 

size of these developments was 0.14 

hectares (ha) (0.34 acres (ac)), indicating 

that up to 3.2 ha (8 ac) of suitable 

butterfly habitat may be impacted from 

commercial and private development 

activities (Service 2004). In the 

proposed rule, we described an 

additional 4 ha (10 ac) of impacts from 

a private development on the east side 

of the Village of Cloudcroft. Thus, we 

estimate that about 1 percent of the 

suitable butterfly habitat on private 

lands (i.e., 18 of 1,196 ac) may be 

subject to commercial and private 

development. We do not believe that 

this level of an impact is a significant 

threat to the butterfly (see ‘‘Summary of 

Factors’’ section below for a more 

detailed discussion). 

(2) Comment: There is no evidence 

that exotic weeds have any effect on 

butterfly populations. How is listing the 

butterfly going to help solve the exotic 

weed problem? 

Our Response: Nearly 30 percent of 

mountain meadows and over half of 

some individual meadows were 

dominated by noxious weeds on the 

Sacramento Ranger District in 1995 

(Forest Service 1995). In 2002, the 

Forest Service conferenced with us 

regarding a District-wide noxious weed 

management program. Under this 

action, the Forest is using manual 

methods (e.g., spot applications) to 

remove noxious weeds within habitat 

occupied by the butterfly. We 

anticipated some impacts to host plants 

will occur, but these were expected to 

be insignificant (i.e., should never reach 

the level where incidental take of the 

butterfly will occur) or discountable 

(i.e., effects to the butterfly from the 

action are extremely unlikely to occur) 

to the butterfly. The Sacramento Ranger 

District is currently monitoring and 

treating infestations of nonnative 

vegetation. These actions have longterm benefits for the butterfly because 

the threat of nonnative vegetation to the 

butterfly has been minimized.

(3) Comment: If global warming is 

really a threat to the butterfly, are you 

going to get the whole planet to change 

its habits to protect this one butterfly? 

Our response: We agree that we 

cannot address an issue of this 

magnitude and complexity on a species 

by species basis. However, we 

recognized in the proposal that the 

butterfly may be vulnerable to changes 

in climate. We also note that this does 

not imply that the species cannot 

survive natural events such as drought 

since the butterfly evolved in an 

environment subject to periodic atypical 

weather events. 

When a species has specific and 

limited habitat requirements, it is 

reasonable to assume that climate shifts 

occurring more rapidly than 

evolutionary timeframes might have an 

impact on the species in the future. 

Even if we cannot address these issues 

on a species by species basis, we believe 

it is important, where possible, to 

document the extent of any problems, to 

spur research or collaborative solutions. 

The U.S. Geological Survey (USGS) and 

the Service recently launched our 

Future Challenges Project with a 

scientific workshop at the National 

Conservation Training Center. At this 

workshop, we explored four 

environmental drivers that will affect 

our work and missions in the future. We 

examined the issues of water resources, 

invasive species, climate change, and 

biotechnology for their potential longterm impacts in managing biological 

resources and the systems that support 

them over the next 10 to 20 years. For 

example, we know the importance of 

coordinating research, monitoring, and 

risk assessment efforts so that human 

and financial resources are used 

effectively and directed at the highest 

priority needs. Closely related is the 

importance of accessing and sharing 

research and results so that the best 

information available is used by all 

decision-makers. 

(4) Comment: If listing the butterfly 

makes it more vulnerable to collection, 

then why list the subspecies? 

Our response: As part of our analysis 

under section 4(a)(1) of the Act, we 

disclose and analyze the known or 

potential threats to species and any 

related information. In the case of the 

butterfly, we acknowledged that listing 

can increase the publicity and interest 

in a species’ rarity, and thus may 

directly increase the value and demand 

for specimens. To limit potential 

overcollecting, the Forest Service issued 

a closure order restricting the collection 

of any butterflies without a permit on 

the Smokey Bear and Sacramento 

Districts of the Lincoln National Forest 

(Forest Service 2001). The Forest 

Service posted the closure order in 

accordance with their regulations and 

also published a notice of the closure 

order in the newsletter of the 

Lepidopterists’ Society (36 CFR 261, 

Lepidopterists’ Society Newsletter 1999, 

Holland 1999) (see discussion under 

‘‘Factor B’’ below). 

(5) Comment: Based upon the fact that 

one of the only butterfly pupa ever 

found was attached to the side of a 

building, it does not appear that 

developments are a threat to the 

subspecies. 

Our response: The building where the 

pupa was found occurs in an area where 

butterfly habitat adjacent to the building 

was largely intact and is being used by 

the butterfly. Based on this and other 

information we have reviewed (see 

‘‘Factor A’’ section below), it appears 

that private and commercial 

development activities can be 

conducted in such a way as to minimize 

impacts on the butterfly. For example, 

the Forest Service has found that the 

butterfly continues to exist within areas 

that are developed (Forest Service 

2004e). 

(6) Comment: Recent studies have 

shown that the butterfly’s population 

and range are actually much larger than 

previously thought. There is no 

evidence that the range of the butterfly 

is shrinking. 

Our response: As we noted in the 

2001 proposed rule, the Forest Service 

has been conducting surveys since 1998 

to estimate the range of the butterfly. 

The known range of the butterfly has 

not been extended since 2000 (Forest 

Service 2002). We do not have long-term 

monitoring data to evaluate whether the 

butterfly’s population is increasing, 

stable, or declining. Still, on a gross 

scale, our observations indicate that the 

range of the butterfly has not changed 

since 2000 (Forest Service 2002b). The 

Forest Service and Service will continue 

76430 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

to monitor the butterfly population and 

range (Service 2004b). 

(7) Comment: No studies have been 

conducted in the adjacent Mescalero 

Apache Nation lands, where there could 

be large numbers of butterflies in their 

plentiful meadows. The Village of 

Cloudcroft comments state they have 

spoken with ‘‘at least two officials from 

the Mescalero Indian Reservation who 

assume the butterfly is found on the 

Mescalero Indian Reservation.’’

Our response: We have no 

information to be able to verify the 

information that the butterfly is found 

on the Mescalero Apache Nation lands 

(see ‘‘Mescalero Apache Nation’’ section 

below). We have provided technical 

assistance to the Mescalero Apache 

Nation through field identification and 

survey techniques that we conducted on 

Forest Service lands. We offered 

assistance to the Mescalero Apache 

Nation in conducting surveys. However, 

we have no knowledge that there is any 

occupied butterfly habitat on Mescalero 

Apache Nation lands or that surveys 

have ever been completed there. 

(8) Comment: There is no compelling 

information that the butterfly’s 

population has been reduced. 

Our response: We have no evidence 

that the butterfly’s population is 

declining (see also comment number 6). 

Section 4(b)(1)(A) of the Act requires us 

to make listing determinations on the 

basis of the best scientific and 

commercial data available. In this final 

listing determination, we are 

withdrawing the proposal to list the 

butterfly as endangered based upon our 

analysis of the current threats and our 

conclusion that the butterfly no longer 

meets the definition of threatened or 

endangered. 

(9) Comment: Both adult and larval 

foodplants for the butterfly are common 

and abundant throughout its range. 

There is no information to indicate that 

the foodplants are declining from any 

threats. 

Our response: We agree that adult 

foodplants are common. Larval 

foodplants have been impacted in some 

areas, but do not appear to be the sole 

determinant of the presence or 

abundance of the butterfly (Pittenger et 

al. 2001). Our current understanding of 

the threats to the butterfly and its 

foodplants is fully described under the 

‘‘Summary of Factors Affecting the 

Species’’ section below.

(10) Comment: The Service needs to 

conduct an analysis under the National 

Environmental Policy Act (NEPA) for 

the listing of the butterfly. 

Our response: While we are not 

required to complete an analysis under 

NEPA for the listing of the butterfly, we 

did however, complete a draft 

environmental assessment under NEPA 

on the proposed designation of critical 

habitat, and released it for public 

comment on November 8, 2004 (69 FR 

64710). We believe that this issue is no 

longer relevant because we are 

withdrawing our listing proposal. 

(11) Comment: Euphydryas anicia 

cloudcrofti is not a unique species or 

subspecies and was only referred to as 

cloudcrofti for regional identification 

purposes. 

Our response: We disagree. 

Euphydryas anicia cloudcrofti is 

recognized as a distinct taxonomic 

subspecies that is a listable entity under 

the Act if it were to meet the definition 

of threatened or endangered (16 U.S.C. 

1532(16)). The subspecies was isolated 

by post-Pleistocene climate changes and 

subsequent changes in the distribution 

of plant communities (Pittenger and 

Yori 2003). This spatial isolation 

resulted in a unique variation that is 

locally adapted and recognized as a 

distinct subspecies (Pittenger and Yori 

2003, Pratt 2001, Toliver et al. 1994, 

Cary and Holland 1992, Ferris and 

Holland 1980). 

(12) Comment: The scientific record 

indicates there was a specimen found 

282 kilometers (km) (175 miles (mi)) 

north of the Village of Cloudcroft that 

was identified as this butterfly. The 

specimen might have been mislabeled, 

but should be looked into. 

Our response: Holland and Ferris 

(1980) stated that, ‘‘There is a single 

male of cloudcrofti in the American 

Museum of Natural History collection 

(O. Buchholz Collection) labeled 

‘‘Beulah, New Mexico VI.27.02’’. Beulah 

was a former settlement in the Sapello 

Valley, San Miguel Co., N.M., some 282 

kilometers (km) (175 miles (mi)) north 

of the Village of Cloudcroft. We suspect 

that this specimen was mislabeled and 

actually came from the Cloudcroft area.’’

Toliver et al. (1994) and Cary (2003) 

document an undescribed subspecies of 

Occidryas (= Euphydryas) anicia

collected in San Miguel County, New 

Mexico, in 1882, 1901, 1902, 1949, and 

1954. It was also observed in Mora 

County, New Mexico, in 1995 (Toliver 

et al. 1994) and 2003 (Cary 2003). We 

conducted surveys within Mora County 

in 2003 and 2004 during the presumed 

active season. In 2003, adult butterflies 

of this undescribed subspecies were 

photographed by Cary (2003) in Mora 

County, although New Mexico 

penstemon (Penstemon neomexicanus) 

or orange sneezeweed (Helenium 

hoopesii), the primary foodplants of the 

butterfly, have not been observed. We 

suspect that if the undescribed 

subspecies still occupies the area, it 

occurs at very low densities. 

Pratt (2000, 2001), who conducted 

extensive surveys throughout New 

Mexico, including the Sacramento 

Mountains (Pratt 2001a, 2001b, 2001cF), 

found that the butterfly is highly 

isolated from other populations of 

Euphydryas anicia and, after reviewing 

the taxonomic relationships within 

Euphydryas described by Brussard et al.

(1989), he believes that cloudcrofti may 

be its own separate species. Genetic 

studies have not been conducted 

between cloudcrofti and other 

Euphydryas anicia populations, 

including the undescribed subspecies in 

Mora County, New Mexico. Because the 

known foodplants of the Sacramento 

Mountains checkerspot butterfly have 

not been documented outside of Otero 

and Lincoln Counties, we do not believe 

that the undescribed subspecies is the 

same as the Sacramento Mountains 

checkerspot butterfly. This conclusion 

is consistent with previous 

interpretations of other lepidopterists 

who are familiar with and have 

observed these butterflies (Toliver et al.

1994, Holland and Ferris 1980).

(13) Comment: Was the proposed rule 

peer reviewed? 

Our response: Yes. In September 

2001, we sent the proposed rule to six 

peer reviewers. Only one responded; 

this peer reviewer supported the 

proposed listing. 

(14) Comment: Where have butterfly 

festivals been organized and are there 

any economic benefits of such festivals? 

Our response: We are aware of many 

butterfly festivals organized across the 

country. In fact, Mission, Texas, has 

been holding a festival for eight years 

(http://www.texasbutterfly.com/). 

Similarly, there are large butterfly 

festivals in Paris, Arkansas (http://

www.butterflyfestival.com/), 

Haynesville, Louisiana (http://

www.claiborneone.org/haynesville/

butterfly.html), and celebrations for 

listed butterflies such as the Karner blue 

butterfly festival in Black River Falls, 

Wisconsin http://

www.downtownblackriverfalls.com/

karner_blue_butterfly_fest.htm). These 

festivals can draw thousands of 

participants and provide a large 

economic benefit to the community. 

The Service and the Albuquerque 

Biological Park organized an overnight 

trip to Cloudcroft to view the butterfly 

and other sensitive species. This trip 

entailed about 20 people staying in The 

Lodge overnight and visiting local 

businesses. The Albuquerque Biological 

Park conservatively estimated that their 

group spent a minimum of $3,500 in 

Cloudcroft businesses. 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76431

(15) Comment: Cattle grazing has 

occurred for over 100 years in the 

Sacramento Mountains and is not 

threatening the butterfly. 

Our response: We agree with this 

statement. Livestock grazing was 

recognized as a threat to the species in 

2001. We have reevaluated this 

conclusion in light of recent information 

from the Forest Service and others (e.g., 

Forest Service 2001, 2004b, 2004i, 

Service 2004a, 2004b, Weiss 1999). 

Historic and current levels of grazing are 

not a significant threat to the species. 

The potential threat of grazing is further 

reviewed under the ‘‘Summary of 

Factors Affecting the Species’’ section 

below. We conclude that current and 

future levels of grazing have not and 

will not result in significant adverse 

effects to the butterfly because grazing 

monitoring and subsequent management 

changes (reducing number of livestock, 

moving to other pastures, etc.) ensure 

that utilization levels are met and 

foodplants for the butterfly are being 

maintained. 

(16) Comment: The Forest Service 

indicated that there is no potential risk 

to the butterfly related to the control of 

tussock moth (Orgyia pseudotsugata) as 

it was described in the proposed rule. 

They stated that any future proposed 

treatments would need to be analyzed 

under NEPA, and the suggestion that 

carbaryl or Bacillus thuringensis would 

be used to control these or other forest 

insects was premature. 

Our response: We agree and have 

revised our analysis to reflect this new 

information. See ‘‘Summary of Factors 

Affecting the Species’’ section below for 

further details. 

(17) Comment: The Forest Service 

indicated that all of their activities, 

including for example wildland urban 

interface (WUI) treatments, land 

exchanges, recreational improvements, 

and special use permits are currently 

evaluated for effects on the butterfly and 

its habitat. The Forest Service has 

implemented these conservation 

measures through modified project 

design features, avoidance of the species 

and/or habitat, or implemented 

mitigation measures such as surveys or 

seasonal restrictions. The butterfly and 

its habitat are receiving adequate 

protection and management on the 

Lincoln National Forest as the Regional 

Forester designated the butterfly a 

Sensitive Species, and, as such, will 

continue to be analyzed in all applicable 

NEPA documents. 

Our response: We agree with the 

comments, and we are withdrawing our 

proposal to list the species (see 

‘‘Summary of Factors Affecting the 

Species’’ section below), in part, due to 

this effort and designation from the 

Forest Service. 

(18) Comment: The Forest Service 

indicated that the majority of range 

conditions within meadows used by the 

butterfly are in satisfactory condition 

and are providing the necessary host 

plants for the species. Host plants have 

likely increased or at minimum 

remained stable. 

Our response: We assumed in our 

proposed rule that butterfly abundance 

was related to density of foodplants. 

Although the presence of foodplants is 

a necessary component of suitable 

butterfly habitat, it appears that 

foodplant density has little influence on 

number of adult butterflies (Pittenger et 

al. 2001). We agree that range 

conditions within meadows used by the 

butterfly are providing the necessary 

host plants for the species (see 

‘‘Summary of Factors Affecting the 

Species’’ section below). It is also 

unknown why the butterfly is not 

present in meadows where larval and 

adult foodplant density is high 

(Pittenger et al. 2001, Pittenger and Yori 

2003). Further research is needed to 

clarify the attributes of butterfly habitat.

(19) Comment: Female butterflies lay 

hundreds of eggs. Therefore, 

biologically it does not make sense that 

if a few larvae get crushed by recreation 

or other activities, it would cause the 

butterfly population to decline or lead 

to its extinction. 

Our response: We have also reached 

this conclusion (see our response to 

Comment 24 below). The proposed rule 

was a comprehensive document that 

analyzed a myriad of potential threats. 

At that time, we indicated the potential 

significance of many of the impacts had 

not been quantified. After further 

evaluation, we believe that the 

magnitude of each potential threat is a 

necessary component to accurately 

evaluate the potential of each threat. 

The commentor is correct that in a 

functioning metapopulation, as we 

believe is the case here, the loss of a few 

butterflies will not jeopardize the 

continued existence of the species. 

(20) Comment: What level of impact 

triggers an ‘‘adverse effect’’

determination for the butterfly from the 

Service. 

Our response: If the species were 

listed under the Act, the level of impact 

that triggers an adverse effect 

determination would be the same as any 

other species under section 7 of the Act. 

Federal agencies are required to consult 

with us under section 7 of the Act when 

activities with a Federal nexus (i.e., 

when a Federal agency is funding, 

permitting, or in some way authorizing 

a project) may affect a species or its 

designated critical habitat. The Federal 

action agency is required to make the 

determination as to whether their 

project may affect a species or 

designated critical habitat. If the 

anticipated effects from a proposed 

action are insignificant, discountable, or 

entirely beneficial, then we concur that 

the activity is not likely to adversely 

affect the species or its critical habitat 

(i.e., an informal consultation). 

Conversely, those activities that are 

likely to result in incidental take or 

adversely affect the species or its critical 

habitat require formal consultation. 

(21) Comment: Based upon Forest 

Service observations following the Scott 

Able fire in 2000, catastrophic wildfire 

is not a threat for the butterfly. The 

species lives in meadows, which are 

usually little affected from wildfires 

within mixed conifer fuel type. 

Our response: The information from 

the Scott Able fire indicates that the 

majority of areas burned were within 

the mixed conifer forest (Forest Service 

2001). Meadows were essentially passed 

over by this wind-driven fire and did 

not sustain any high burn intensities 

(Forest Service 2001). In fact, within the 

meadows that burned, fire intensities 

were generally light (Forest Service 

2001) (see Factor A below). 

Recovery of butterfly populations 

after fires is a function of the species’

ability to gain access to suitable postfire 

habitats and their ability to rebuild 

numbers from survivors or colonizers 

(Swengel 2001). We expect that the 

effects of fire on butterfly habitat quality 

and availability will vary based on the 

severity and spatial configuration of the 

fire, the response of foodplants to burn 

severity, and suitability of postfire 

vegetation. While we have a good 

understanding of the general factors that 

influence fire behavior, the way in 

which a fire behaves on the landscape 

is highly complex. As a result, fire 

behavior and severity can be understood 

and predicted in general terms, but 

exact predictions are not possible 

(Forest Service 2004). For example, 

butterfly habitat quality may either be 

enhanced or diminished by wildfire. It 

is probable that a fire of moderate 

severity could enlarge existing meadows 

or create suitable corridors between 

occupied areas. 

As described below, the Sacramento 

Ranger District and surrounding area 

has been identified as a high-priority 

area for fuel treatments within New 

Mexico. As a result, the Lincoln 

National Forest has increased funding 

and implemented projects across the 

Sacramento Ranger District to reduce 

the threat of wildfire (Forest Service 

2001). In their comments, the Forest 

76432 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

Service reviewed the last 50 years of fire 

activity on the Sacramento Ranger 

District, the impact of recent fuelsreduction projects, and the potential 

impacts to meadows from fires. They 

concluded that the potential impacts to 

the butterfly from catastrophic wildfire 

were low (Forest Service 2001). We 

agree with this conclusion as further 

explained in the ‘‘Summary of Factors 

Affecting the Species’’ below. 

(22) Comment: The Forest Service 

stated that the only road construction 

project planned within butterfly habitat 

is associated with campground 

reconstruction activities. 

Our response: We agree and have 

revised our analysis to reflect this new 

information. 

(23) Comment: The Forest Service 

commented that recent and future 

developed recreation site rehabilitation 

projects were conducted to provide for 

public safety, accessibility, and 

compliance with the American with 

Disabilities Act, resource protection, 

and to improve campground image 

(color, style, etc). They indicated that 

the redesign of all campgrounds within 

meadows will result in a net reduction 

in camping and picnicking capacity by 

reducing the number of units (i.e., camp 

sites and picnic tables).

Our response: We agree and have 

revised our analysis to reflect this new 

information. 

(24) Comment: The Forest Service 

contends that the annual mountain bike 

race is a recreational use that does not 

adversely affect the butterfly because 

the race occurs in mid-May prior to the 

growing season of the larval host plants. 

Our response: Although we believe 

that the annual mountain bike race has 

the potential to adversely affect (and 

incidentally take) post-diapause larvae, 

the significance of this threat is 

considered low. Some larvae may be 

crushed and killed, but we would 

expect less than 1 ha (2.4 ac) of 

occupied habitat (i.e., trails through 

occupied meadows) to be impacted from 

this activity to occur, which would not 

affect the metapopulation dynamics of 

the species (e.g., the linear nature of 

trails would not preclude butterfly 

movement and recolonization) (see ‘‘the 

‘‘Summary of Factors Affecting the 

Species’’ below). 

(25) Comment: Was the model used to 

estimate the amount of existing butterfly 

habitat developed by people qualified to 

do this kind of work? Was the model 

peer reviewed? 

Our response: As noted in the 

proposed rule, the Forest Service used 

a Geographic Information System (GIS) 

to model the extent of existing butterfly 

habitat (Forest Service 1999b). The 

model was developed to focus survey 

efforts within areas thought to provide 

butterfly habitat. It is our understanding 

that this model was developed by 

biologists and cartographers. The 

information upon which the model was 

built was identified in the proposed 

rule. We asked our peer reviewers to 

review any aspect of the proposed rule, 

which included the model and estimate 

of existing butterfly habitat. No one 

commented on this aspect of the 

proposal. This model has been refined 

since 2001 (Forest Service 2004e) (see 

‘‘Summary of Factors Affecting the 

Species’’ section below). We consider 

the refined model to be the best 

scientific and commercial information 

available for estimating existing 

butterfly habitat. As we have found, the 

model provided no certainty that the 

potential habitat may be occupied (e.g., 

the 1999 model overestimated potential 

butterfly habitat by about 50 percent) 

(see ‘‘Summary of Factors Affecting the 

Species’’ section below). 

(26) Comment: The proposed rule 

states that the construction of roadways 

is believed to have historically 

eliminated or reduced the quality or 

quantity of butterfly habitat, and cites 

Pittenger (1999). Nowhere in the 

reference cited is there any discussion 

or mention of the historic effect of road 

construction on the quantity or quality 

of habitat for the butterfly. 

Our response: Our analysis used this 

citation because it documented the 

impact caused by recent road 

construction activities on the quantity 

and quality of butterfly habitat. On 

October 27, 2004, we visited this area 

and found that foodplants have 

naturally been reestablished during the 

2004 growing season. Based upon our 

observation of a recently colonized site 

(Service 2004d), we believe the area 

impacted from the recent road 

construction activities may be utilized 

by the butterfly as soon as next year (see 

‘‘Summary of Factors Affecting the 

Species’’ section below). 

(27) Comment: Erroneous information 

is provided in the proposed rule 

regarding the severity of impacts of the 

New Mexico Highway 130 

reconstruction project at Deerhead 

Campground. The project did not result 

in the extirpation of the butterfly from 

Deerhead Campground, because it still 

exists in the area. 

Our response: The proposed rule did 

not state that butterflies were extirpated 

from Deerhead Campground. The rule 

identified that in 1998 and 1999, 

butterflies were located within the 

construction footprint (Forest Service 

1999a, 1999b; 1999d.); however, none 

were observed during surveys in 2000 

and 2001. No butterflies have been 

observed within the construction 

footprint since 1999. However, the 

commentor is correct, in that, butterflies 

are still occupying other parts of 

Deerhead Campground. As noted above 

in our response to comment 26, this area 

has been naturally revegetated with 

foodplants during 2004. 

(28) Comment: There is little to no 

evidence to back the claim in the 

proposed rule that overgrazing has 

occurred in the valleys of the 

Sacramento Ranger District of the 

Lincoln National Forest over the last 

several decades. 

Our response: Much of the 

information we reviewed in 2001 was 

from the Sacramento Grazing Allotment. 

We had assumed in the proposed rule 

that the continuing heavy grazing (i.e., 

above 35 percent forage utilization) on 

this allotment was impacting the 

butterfly. However, further examination 

of information from the Forest Service 

demonstrated that the butterfly and its 

proposed critical habitat are only found 

within a portion of the Nelson Pasture 

on the summer unit of the Sacramento 

Allotment, which does not receive any 

cattle use because of topography and 

lack of water (Service 2004a). For the 

other allotments within the range of the 

butterfly, we conclude that current and 

future grazing will not result in 

significant adverse effects to the 

butterfly because the Forest Service 

ensures that utilization levels are met 

and foodplants are maintained (see 

‘‘The Present or Threatened Destruction, 

Modification, or Curtailment of Its 

Habitat or Range’’ section). 

(29) Comment: Has New Mexico 

penstemon (Penstemon neomexicanus) 

been found outside the geographic range 

of the butterfly? 

Our response: Yes. There are areas 

(e.g., Russia Canyon and Rawlins 

Canyon) where New Mexico penstemon 

is locally common, but are apparently 

unoccupied by the butterfly since it has 

not been located during surveys in these 

areas (Pittenger et al. 2001, Forest 

Service 2000, 2000a, Bleakly 1998, 

1999). Additionally, the butterfly’s host 

plants are known to occur within 

portions of the Smokey Bear Ranger 

District, in the vicinity of Ruidoso, New 

Mexico, just north of Mescalero Apache 

Nation lands (Forest Service 2000a). 

However, the butterfly has not been 

documented north of the Sacramento 

Ranger District (Forest Service 2000a).

(30) Comment: The information 

submitted in the proposed rule does not 

comply with the Guidelines for 

Ensuring and Maximizing the Quality, 

Objectivity, Utility, and Integrity of 

Information Dissemination by Federal 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76433

Agencies issued by Executive Office of 

the President, Office of Management 

and Budget (OMB) (Information 

Guidelines) (66 FR 49718). 

Our response: These guidelines 

require that agencies issue their own 

quality guidelines to ensure objectivity, 

utility, and integrity of information to be 

disseminated (66 FR 49718). The 

proposed rule was published prior to 

the October 1, 2001, effective date of the 

Information Guidelines. However, we 

used the best scientific and commercial 

data available in the formulation of our 

proposed rule as required by the Act. 

Additionally, we have reviewed this 

final determination and the rulemaking 

process that we have followed for this 

action relative to the current guidelines 

and have determined that this 

determination is in compliance with the 

parameters established therein. 

(31) Comment: We received a variety 

of comments regarding the proposed 

critical habitat, the draft economic 

analysis, and draft environmental 

assessment. 

Our response: Because we are 

withdrawing the proposal to list the 

butterfly, we are no longer proposing 

critical habitat for this subspecies. As 

such, the draft economic analysis and 

draft environmental assessment are no 

longer applicable, and we are not 

addressing comments on those 

documents in this determination. 

Summary of Factors Affecting the 

Species 

Section 4 of the Act and its 

implementing regulations (50 CFR part 

424) set forth the procedures for adding 

species to the Federal list of endangered 

and threatened species. A species may 

be determined to be an endangered or 

threatened species due to one or more 

of the five factors described in section 

4(a)(1) of the Act. The following 

analysis examines the listing factors and 

their application to the butterfly. Within 

this section we evaluate new data 

received since the proposed rule, 

projects that were completed since 

2001, and the related conservation 

measures that reduce present and future 

threats to the species. 

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Several categories of activities have 

the potential to affect the butterfly and 

its habitat, including commercial and 

private development, Forest Service 

activities, fire suppression and wildfire, 

highway and forest road reconstruction, 

recreational impacts, domestic livestock 

grazing, and nonnative vegetation. This 

section of the rule presents information 

for each of the factors affecting the 

butterfly and its habitat, followed by a 

summary of how formalized 

conservation efforts eliminate or reduce 

adverse effects. 

Commercial and Private Development 

In 2001, commercial and private 

development was identified as a 

significant threat to the butterfly (66 FR 

46575). The butterfly likely occupies a 

significant amount of private lands 

since habitat used by the butterfly 

occurs on Forest Service land that is 

immediately adjacent to these areas and 

the elevational and habitat 

characteristics are contiguous (Forest 

Service 2000a, 2004e). 

The proposed rule estimated that 

there were less than 2,104 ha (5,198 ac) 

of potential butterfly habitat, composed 

of 1,034 and 1,070 ha (2,553 and 2,645 

ac) on private and Forest Service lands, 

respectively. A refinement of the 

original data was conducted by the 

Forest Service in 2004 (Forest Service 

2004e). These current data are similarly 

based upon focused surveys to ground 

truth the 1999 GIS model that we 

detailed in our proposed rule, but 

include only those lands within the 

proposed critical habitat boundary. 

Nevertheless, we are not aware of any 

butterfly occurrences outside of the 

previously known range of the butterfly, 

which was fully enclosed in the 

proposed critical habitat boundary. The 

refined estimate is that 1,096 ha (2,709 

ac) of suitable butterfly habitat exist on 

Forest Service and private lands, with 

484 ha (1,196 ac) occupied by the 

butterfly on Forest Service lands and 

314 ha (777 ac) occupied on private 

lands (Forest Service 2004e). About 298 

ha (736 ac) of the 1,096 ha (2,709 ac) of 

suitable habitat are unoccupied, with 79 

ha (194 ac) on Forest Service lands and 

219 ha (542 ac) on private lands (Forest 

Service 2004e). This current estimate is 

the best information we have regarding 

the range and distribution of the 

butterfly. 

We also mapped meadows within the 

mixed-conifer forest at approximate 

elevations between 2,450 and 2,750 

meters (8,000 to 9,000 feet) elevation on 

the Mescalero Apache Nation lands, but 

have no data to indicate whether these 

lands are occupied by the butterfly (see 

‘‘Mescalero Apache Nation’’ section 

below). As detailed in response to 

comment 7 above, we have no 

knowledge that surveys have ever been 

completed there. 

Our economic analysis found that in 

recent years, approximately 8 to 10 new 

homes have been constructed annually 

within the known range of the butterfly, 

which includes lands within the limits 

of the Village of Cloudcroft and areas 

outside these limits in Otero County 

(Service 2004). Although development 

is no longer being encouraged by the 

Village of Cloudcroft due in part to the 

lack of water for residential use (Service 

2004b, Village of Cloudcroft 2001), there 

are two existing subdivisions with 

developable lots available (Service 

2004). The economic analysis estimated 

that over the next 20 years, 

approximately 160 to 200 small-scale 

residential projects may occur within 

the butterfly’s critical habitat boundary. 

Of these, 8 to 24 private lots within the 

range of the butterfly (i.e., the Village of 

Cloudcroft or Otero County) may be 

found to be in use by butterflies (Service 

2004). These estimates, in conjunction 

with the median lot size of 0.14 ha (0.34 

ac), indicates that up to 3.2 ha (8 ac) of 

suitable butterfly habitat may be 

impacted from commercial and private 

development activities over the next 20 

years (Service 2004). In the proposed 

rule, we identified that a subdivision on 

the east side of the Village of Cloudcroft 

was currently developing and 

eliminating approximately 4 ha (10 ac) 

of suitable, and likely currently used, 

butterfly habitat. Depending on the 

location and configuration of each 

development, these activities have the 

potential to threaten the butterfly. 

Nevertheless, this amount is not a 

significant threat to the butterfly 

because it represents about 1 percent of 

the suitable butterfly habitat on private 

lands (i.e., 7.3 of 484 ha (18 of 1,196 

ac)).

In the proposed rule we stated that a 

9-hole golf course was being discussed 

as a community recreational goal and 

objective for the Village of Cloudcroft in 

2005 (Cloudcroft Area Sustainability 

Team 1995). Based upon comments 

related to the proposed rule from the 

Village of Cloudcroft (2001), we found 

that this information is not accurate. 

The Village’s view on development has 

changed, due in part to a lack of 

groundwater (Service 2004b). For 

example, in August 2004, a water crisis 

was declared in Cloudcroft and drinking 

water was being hauled to the Village 

(Shinabery 2004a, 2004b). They no 

longer intend to develop a golf course 

(Village of Cloudcroft 2001, Service 

2004b). 

Since the proposed rule, we have also 

received updated information on the 

Village of Cloudcroft land transfer, 

which is located in areas adjacent to the 

Village. In the proposed rule, we found 

that the land transfer would provide 

additional land for commercial, 

industrial, educational, and recreational 

expansion for the Village of Cloudcroft, 

further degrading or eliminating suitable 

76434 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

habitat and restricting the movement of 

butterflies between local populations. 

The Forest Service has completed NEPA 

compliance and signed a decision notice 

to allow the Village of Cloudcroft to 

purchase 33 ha (81 ac) of National 

Forest lands pursuant to the Townsite 

Act (Forest Service 2001a, 2001b). The 

land transfer includes five parcels of 

land totaling 33 ha (81 ac). Within these 

parcels butterflies have been observed 

in parts of parcels 3, 4, and 5. The 

portion of these parcels that is 

considered to be butterfly habitat 

amounts to about 1.2 ha (3 ac) of the 33 

ha (81 ac) being offered to the Village 

(Forest Service 2001a, 2001b, Service 

2004, 2004d). The remaining 32 ha (78 

ac) are currently not suitable butterfly 

habitat (Forest Service 2001a, 2001b). 

To date, the Village has not purchased 

the five parcels of land; however, the 

majority of these parcels are intended 

for use as greenbelts and buffers and not 

development as we had described in our 

proposed rule (Forest Service 2001a, 

2001b, Service 2004b). The use of these 

areas as greenbelt would be consistent 

with the Village of Cloudcroft’s local 

zoning regulations related to open 

space. The Village of Cloudcroft’s 

Village Code document (Chapter 7 of the 

Village Code—Greenbelt Zones Use 

Regulations G–1 Zone), states that 

Greenbelt Zones shall consist of open 

space with no structures or commercial 

signs allowed (Service 2004). In 

addition, the zoning regulations prohibit 

overnight parking or camping within 

greenbelt zones. The Village of 

Cloudcroft has stated its intention to 

keep all new land annexed from the 

Forest Service as greenbelt (Service 

2004b). It is our understanding that 

greenbelt areas are not generally mowed 

by the Village of Cloudcroft (Forest 

Service 2004f). Because of the small 

scale of potential impacts involved in 

this land transfer (less than 1.2 ha (3 

ac)), the new information on the species’

ability to recolonize areas (see 

discussion on the edges of the football 

field below), and the intention to keep 

these parcels as greenbelt, we now 

conclude that the incremental impact of 

this land transfer when added to other 

past, present, or reasonable foreseeable 

future actions (i.e., cumulative effects) 

on the butterfly’s long-term persistence 

is not significant.

The history of habitat occupied by the 

butterfly (e.g., Deerhead Campground, 

Pines Campground) could be 

characterized by frequent, often major, 

impacts to soils and vegetation. For 

example, impacts from logging 

operations and infrastructure were 

historically present throughout the 

Sacramento Mountains (Kaufmann et al. 

1998, Glover 1984). In fact, a railroad 

was constructed in June 1900 and 

operated until 1947 through the area 

where present-day Deerhead 

Campground is located (NMSHTD 2001; 

Glover 1984). The butterfly continues to 

be found at this locality. Thus, it 

appears that the butterfly and its 

foodplants can tolerate a certain amount 

of natural and man-made disturbances. 

We previously identified that heavy 

clearing or mowing of native vegetation 

on improved (i.e., with existing 

structures) or unimproved private lands, 

to reduce the threat of wildfire or 

improve the residential appearance, 

could eliminate larval or adult food 

plants and/or localities that are used by 

the butterfly. Additionally, we found 

that the conversion of native landscapes 

to nonnative vegetation (e.g., lawns or 

gardens) could fragment butterfly 

localities, eliminate movement 

corridors, and cause additional loss of 

suitable habitat (Wood and Samways 

1991, Holland 2001). Although these 

activities have the potential to reduce 

blocks of native vegetation to fragments, 

creating a matrix of native habitat 

islands, we have no specific information 

to conclude that these activities are 

significantly threatening the butterfly. 

The Village of Cloudcroft is situated 

on approximately 324 ha (800 ac), and 

is surrounded by National Forest lands 

(Forest Service 2001b). The character of 

the Village is largely residential, with 

cabins, houses, and business serving the 

local vacation and tourist-based 

economy. Within the butterfly habitat of 

the Village of Cloudcroft, the native 

vegetation is generally not cleared or 

mowed because it adds to the rustic 

charm of the area. The New Mexico 

State Highway Transporation 

Department (NMSHTD) is responsible 

for maintaining the rights-of-way within 

Highways 82, 244, and 130. Much of the 

potential butterfly habitat within these 

rights-of-way is too steep for mowing or 

mowing is not needed (Forest Service 

1999b). The NMSHTD generally occurs 

outside of the known range of the 

butterfly Dry Canyon eastward to 

Mayhill, but may occasionally mow the 

vegetation within the known range of 

the butterfly adjacent to Highways 82, 

244, and 130, if the rights-of-way are not 

too steep (Forest Service 1999b, 2004f). 

The Forest Service found there are at 

least 3 areas within the Village of 

Cloudcroft that are occupied by the 

butterfly, including the edges of the 

existing golf course, residential areas 

along the southeast, and adjacent to 

Highway 82 (Forest Service 2004e). As 

noted below, we found another area 

(i.e., the edges of the football field) that 

was not butterfly habitat and had been 

recently cleared of trees, has been 

colonized this year (Service 2004d). 

This has been reported elsewhere for 

butterflies in the genus Euphydryas

(Ehrlich and Hanski 2004). For example, 

freshly created habitats on road verges, 

railway embankments, and wide forest 

tracks (associated with timber 

extraction) have been colonized by 

many species of butterfly (see Thomas 

1994). These areas are likely to provide 

connectivity through ‘‘stepping stones’’

to other occupied butterfly localities 

(Thomas et al. 1992).

Recently, we also found that butterfly 

habitat has been created adjacent to a 

football field that was part of a 1996 

land purchase (Service 2004d, Forest 

Service 2001a, 2001b). In an area 

adjacent to the football field that was 

previously forested and not considered 

butterfly habitat (Forest Service 2001a), 

we found larvae in diapause. During 

surveys in October 2004, we found New 

Mexico penstemon and valerian 

(Valeriana edulis) growing abundantly 

throughout the area and, based upon the 

presence of larvae, conclude that 

reproduction occurred in this area 

during 2004 (Service 2004d). This 

indicates that larval foodplants were 

naturally reestablished following forest 

clearing and soil disturbance. The 

butterfly subsequently colonized the 

area. This information demonstrates the 

resiliency of the butterfly and its 

footplants, and their ability to colonize 

new habitat. Based upon our assessment 

of these data, it appears that habitat 

connectivity is still provided through 

much of the land within the range of the 

butterfly. Thus, heavy clearing or 

mowing of native vegetation cannot be 

considered a significant threat presently 

or in the foreseeable future. 

Summary 

As evidenced by the foregoing 

discussion of occupied butterfly habitat 

on private lands within the Village of 

Cloudcroft and Otero County, it has 

been demonstrated that the butterfly can 

co-exist within developed areas. The 

potential threat to the butterfly from 

private and commercial development is 

not as significant as we originally 

believed. For example, we estimate that 

no more than 7.3 of 484 ha (18 of 1,196 

ac) of suitable butterfly habitat on 

private land have the potential to be 

impacted from development activities. 

The Village of Cloudcroft will also 

continue to follow their greenbelt 

zoning regulations, thus limiting 

potential impacts within butterfly 

habitat on newly purchased/acquired 

land. This new information indicates 

commercial and private development is 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76435

no longer a substantial threat to the 

species currently or in the foreseeable 

future within the Village of Cloudcroft 

and Otero County. 

Forest Service Activities 

In the proposed rule we concluded 

that those Forest Service projects listed 

below, that are within the known range 

of the butterfly, had the potential to 

adversely affect the butterfly. Since the 

time of the proposal, the Forest Service 

has eliminated some proposed projects 

(e.g., the construction of a new 

administrative building) in habitat used 

by the butterfly (Forest Service 2001, 

2003a). They have also taken actions to 

protect and manage the butterfly, 

including instituting a butterfly closure 

order (see discussion below), fencing 

occupied butterfly habitat, and 

conducting butterfly surveys to 

determine range and occupancy (Forest 

Service 1999a, 1999b, 1999h, 2000a, 

2000d, 2004). These actions have 

eliminated or lessened threats to the 

species and have been beneficial for 

increasing our knowledge of this 

species. 

Below, we provide a brief summary of 

projects that have gone through 

conferencing as required for proposed 

species under section 7 of the Act. The 

next section includes an update to those 

projects previously identified as threats 

to the species: (1) The capital 

improvement projects for three 

campgrounds; (2) a new power line, 

service road, and corridor; (3) livestock 

grazing activities in several allotments, 

one of which (Sacramento Allotment) 

encompasses over 44,921 ha (111,000 

ac); (4) a land transfer to the Village of 

Cloudcroft, which was analyzed above; 

and fire suppression and wildfire. 

We have a good history of 

conferencing with the Forest Service 

under section 7 of the Act on activities 

that may affect the butterfly. Thus, we 

can describe the kinds of actions that 

have undergone informal and formal 

conferencing. For example, we have 

found that many potential threats 

anticipated in the proposed rule 

resulted in insignificant and 

discountable effects for the butterfly 

(Service 2002, 2004a). These include: 

noxious weed management, 

reconstruction of Fir Campground, some 

wildland urban interface fuels 

management projects, and construction 

of the new Forest Service administrative 

building (Service 2002, 2003a, Forest 

Service 2003a). Additionally, the 

majority of formal conferences that have 

anticipated incidental take of butterflies 

have found that short-term impacts will 

occur, but the overall project will result 

in long-term benefits for the species (Rio 

Pen ̃ asco II, Pines Campground 

reconstruction), or that impacts to 

occupied habitat will not affect the 

metapopulation dynamics of the species 

(Service 2001a, 2002b, 2002c, 2004e). 

To date, six projects have undergone 

formal conferencing for the butterfly 

and its proposed critical habitat. The 

projects with anticipated take include: 

(1) Cloudcroft Water Wells (2–22–02–F–

012; 1.5 ha (3.7 ac) of occupied habitat 

impacted); (2) Genetics Study (2–22–02–

F–667; 100 pre-diapause larvae 

collected); (3) Mark-release movements 

study (2–22–02–F–470; 15 adult 

butterflies harmed, unlimited number 

harassed); (4) Rio Pen ̃ asco II vegetation 

management project (2–22–02–F–397; 

14.7 ha (36.4 ac) of occupied habitat 

impacted); (5) Pines Campground 

Reconstruction project (2–22–03–F–

0061; 4.2 ha (10.5 ac) of occupied 

habitat impacted); (6) Village of 

Cloudcroft Apache and Powerline water 

wells (2–22–04–F–721; less than 1.2 ha 

(3 ac) of occupied habitat impacted). We 

are also currently conferencing on two 

additional projects: (1) The reinitiation 

of the Rio Pen ̃ asco II vegetation 

management project that will likely 

impact an additional 13 ha (33 ac) of 

occupied butterfly habitat; and (2) a 

proposed elk study that will impact 

about 2.4 ha (6 ac) of occupied habitat. 

In all of our conferences, we concluded 

that the actions, as proposed, were not 

likely to jeopardize the continued 

existence of the butterfly and are not 

likely to destroy or adversely modify 

proposed critical habitat. 

Campground Projects 

In 1998, recreation managers and 

engineers of the Lincoln National Forest 

and the Forest Service’s Southwest 

Regional Office reviewed improvements 

needed throughout existing developed 

campgrounds of the Sacramento Ranger 

District. In 1998, all phases of the 

district’s recreation improvement 

proposal were submitted for funding 

under the Recreation Capital 

Improvement Program (Forest Service 

2003b). As described below, three of the 

four phases have been completed (Pines, 

Fir, and Silver, Saddle, and Apache 

Campgrounds).

Pines Campground located near the 

Village of Cloudcroft contains one of the 

largest known concentrations of the 

butterfly. Reconstruction activities in 

this campground were completed 

following formal conferencing (Service 

2002a). We found that the 

implementation of this project, along 

with the conservation measures, will 

likely result in short-term adverse 

impacts to the butterfly and its habitat, 

but will ultimately reduce the long-term 

recreational impacts to the species and 

its habitat in this locality (Service 

2002a). For example, the capacity of the 

campground has been significantly 

reduced, indicating that potential 

recreational impacts have decreased. 

The construction of retaining walls, 

fencing, and signs, the enforcement of 

areas not open to camping, and the 

installation of a barrier across the 

butterfly habitat has resulted in longterm benefits for the species (e.g., the 

impact of trampling of foodplants and 

crushing of larvae has been reduced). 

For these reasons, we believe that the 

reconstruction of Pines Campground did 

not disrupt the metapopulation 

dynamics of the butterfly (Service 2003). 

Because these activities were completed 

during 2004 (Service 2004d), this action 

no longer threatens the butterfly. 

The Fir Campground Capital 

Improvements Project underwent 

informal conferencing and resulted in a 

letter of concurrence (Service 2002). 

This project also redesigned the group 

camping area and paved the existing 

road. The Forest Service flagged and 

avoided butterfly locations during 

project construction. Additionally, a 

boundary fence was constructed to 

reduce long-term recreational and 

visitor impacts to butterfly habitat in the 

area. This action was completed in 

summer 2002 and no longer threatens 

the butterfly. 

Silver, Saddle, and Apache 

Campgrounds were reconstructed 

during the summer of 2001 (Forest 

Service 2000). The Forest Service 

conducted butterfly surveys and did not 

locate any individuals; consequently, 

the Forest Service determined that no 

threatened, endangered, or sensitive 

species would be adversely affected 

(Forest Service 2000). Because this 

action was completed, it no longer 

threatens the butterfly. 

Under phase 4, the Forest Service is 

currently finalizing a proposal to 

reconstruct the remaining 5 

campgrounds (Sleepy Grass, Black Bear 

Group, Aspen Group, Deerhead, and 

Slide Group) that are occupied by the 

butterfly (Forest Service 2003b, 2004i). 

We toured the five campgrounds on 

October 27, 2004, and discussed aspects 

of the proposal. For the final five 

campgrounds slated for renovations, the 

Forest Service’s draft environmental 

analysis evaluates three alternatives: A 

no action and two action alternatives 

(Forest Service 2004i). Both action 

alternatives incorporate measures to 

minimize impacts to the butterfly, 

although one alternative will protect 

more butterfly habitat through the 

placement of camp and day use sites in 

areas that are not butterfly habitat (e.g., 

76436 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

forest habitat) (Forest Service 2004i). 

Regardless of which action alternative is 

chosen, this proposal will result in longterm benefits to the butterfly because 

more area of butterfly habitat will be 

protected than under existing 

conditions (Forest Service 2004i). The 

purpose of the project is to improve or 

replace the facilities in the campground 

to enhance the safety, accessibility and 

enjoyment of the site for National Forest 

visitors, while conserving the natural 

and cultural resources in the area. The 

main tenets of this proposal are to 

reduce the number of camping sites and 

condense the campgrounds into smaller 

areas through permanent campground 

boundaries with physical barriers (e.g., 

fences or boulders) to reduce access and 

associated trampling of butterfly habitat 

(Forest Service 2004i). Construction 

activities will likely be initiated during 

2005 and will follow predefined best 

management practices and include 

seasonal restrictions during 

construction, monitoring of construction 

activities, surveys for the butterfly and 

foodplants, and revegetation where 

appropriate (Service 2004d, Forest 

Service 2004i). Construction will not 

result in a disruption of the overall 

metapopulation dynamics of the species 

because impacts will only be a shortterm disturbance of butterfly habitat, 

with a minor amount of butterflies 

affected. We have found that these types 

of impacts are not a significant threat to 

the butterfly because the species and its 

foodplants have been demonstrated to 

be resilient to some disturbances (e.g., 

edges of the football field, campgrounds, 

and railroad) (Service 2004d). This 

remaining capital improvement project 

will offset the high demand for 

developed recreation, while limiting 

associated recreational impacts to the 

butterfly. For these reasons, 

reconstruction of the remaining five 

campgrounds is not considered a threat 

to the butterfly and will result in longterm benefits over existing conditions. 

Powerline, Service Road, and Corridor 

The Forest Service issued a special 

use permit for the Otero County 

Electrical Cooperative Powerline project 

to install a new powerline corridor 

(Service 2000). The Forest Service 

determined that the powerline project 

was expected to result in a disturbance 

of less than 0.4 ha (1 ac) of suitable 

butterfly habitat (Forest Service 1999a). 

They developed a seed mix for erosion 

control, avoided construction during the 

active season of butterfly, and added 

some nectar-source species to restore 

the area of disturbance (Forest Service 

1999a, 2000b). This action resulted in 

insignificant effects to the butterfly and 

does not threaten the butterfly currently 

or in the foreseeable future.

In October 2001, we informally 

conferenced on the Dry Canyon 

Telephone project with the Forest 

Service (Service 2001a). Under this 

project, the Forest Service relocated a 

planned telephone line from suitable 

butterfly habitat to burial in the middle 

of a road (Forest Service 1999) that is 

not butterfly habitat. The Forest Service 

also completed several conservation 

measures (e.g., foodplants were flagged 

and avoided within equipment staging 

areas) as part of this project (Forest 

Service 2002). The impacts associated 

with habitat disturbance from this 

project were temporary. Therefore, this 

project was, but is no longer considered 

a threat to the species. 

The economic analysis estimated that 

over the next 10 years about 145 km (90 

mi) of rights-of-way within butterfly 

habitat will be maintained, and that the 

Forest Service and Otero County 

Electric Cooperative will apply 

conservation activities for the species 

that range from $30,400 to $39,600 per 

mile ($48,640 to $63,360 per km) 

(Service 2004c). Rights-of-way provide 

access to powerlines and poles for 

routine monitoring and maintenance 

activities (1999a). For example, 

powerlines are visually inspected about 

4 to 6 times per year by driving a 

vehicle along the powerline and 

checking for any problems or hazards 

(e.g., remove hazard trees) (Forest 

Service 1999a). Existing rights-of-way 

access range from two-track dirt paths to 

graveled roads in some of the areas that 

traverse or are adjacent to a variety of 

areas including meadows, mixed conifer 

forest, and pavement (Forest Service 

1999a). These activities could result in 

adverse effects to the butterfly from 

scraping and grading activities (e.g., 

some individuals will likely be crushed 

and killed); however, we anticipate that 

the majority of impacts from rights-ofway maintenance activities will be 

temporary (scraping and leveling 

vegetation from within the footprint of 

existing rights-of-way). The Forest 

Service indicated that they will issue a 

special use permit that includes 

conservation measures for the butterfly 

(Forest Service 2004i). Moreover, annual 

maintenance projects are expected to be 

conducted in phases such that not all 

145 km (90 mi) of rights-of-way will be 

impacted in a given year (Forest Service 

2004l). We encouraged the Forest 

Service to include a seasonal restriction 

during the active season of the butterfly 

and revegetate areas that are disturbed 

during maintenance activities to limit 

adverse impacts (Service 2004c). The 

Forest Service indicated that they were 

unable to include specific measures 

because activities vary from year to year 

and project to project (Forest Service 

2004l). Nevertheless, the contractors 

that conducted our draft economic 

analysis of the proposed critical habitat 

for the butterfly interviewed employees 

of the Otero County Electric Cooperative 

and found that they were anticipating 

seasonal restrictions on maintenance 

activities (Service 2004). Based upon 

this information, the special use permit 

will likely include some measures to 

limit adverse effects on the butterfly, but 

may not avoid all impacts such as 

crushing of larvae from heavy 

equipment use. Nevertheless, because of 

the linear nature of these impacts and 

the recognition that adjacent habitat will 

remain intact, we believe this activity 

represents only a limited threat to the 

species. We also note that no new 

Electric Cooperative projects are 

currently planned, indicating no other 

powerline-related threats are foreseeable 

(Service 2004).

Domestic Livestock Grazing 

The known range of the butterfly 

includes portions of six livestock 

grazing allotments and two horse 

pastures: La Luz Watershed, 

Sacramento, Russia Canyon, 

Pumphouse, James Canyon, Walker C.C, 

and Heliport and Pines horse pastures. 

The La Luz Watershed allotment covers 

about 2,023 ha (5,000 ac) and is closed 

and not grazed by livestock (Service 

2004c, Forest Service 2002d). No 

livestock grazing occurs in the portion 

of the Sacramento allotment occupied 

by the butterfly because the topography 

is too steep for cattle to access (Service 

2004a). The Heliport Horse Pasture (180 

ha (446 ac)) is not grazed, whereas the 

Pines Horse Pasture (23 ha (57 ac)) is 

stocked with up to 4 horses for about 5 

months out of the year (Service 2004c). 

The Pumphouse Allotment currently is 

stocked with up to 66 cattle, the Walker 

C.C. Allotment is permitted to stock up 

to 69 cattle, and the Russia Canyon 

Allotment is stocked with up to 42 

cattle (Service 2004, 2004c). These 

allotments are grazed for about 6 

months out of the year, from around 

mid-May to mid-October during the 

active season of the butterfly (Service 

2004c). The butterfly occurs within 

about 91 ha (225 ac) of the Pumphouse 

Allotment and 7.2 ha (18 ac) of the 

Russia Canyon Allotment; however, 

surveys have not detected butterflies 

within the Walker C.C. Allotment 

(Forest Service 2001, 2004n). The 

grazing permit for the James Canyon 

allotment (4,299 ha (10,623 ac)) was 

cancelled in the early 1990s. Prior to 

that time, the allotment was stocked 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76437

with about 142 cattle for 6 months out 

of the year. The Forest Service is 

currently considering resumption of 

livestock grazing in the James Canyon 

Allotment (Forest Service 2004b). The 

Forest Service has proposed a 

utilization level of 35 percent in areas 

open to livestock grazing, and would 

permanently close about 2,790 ha (6,900 

ac) of the allotment to grazing within 

the Silver Springs Canyon area (Service 

2004c, Forest Service 2004b). Therefore, 

about 40 percent (63 ha (155 ac) of 154 

ha (380 ac)) of the occupied butterfly 

habitat will not be grazed by livestock 

(Forest Service 2004b). 

Currently, the allowable forage 

utilization level in livestock grazing 

allotments within the range of the 

butterfly is 35 percent with a minimum 

stubble height of 10 centimeters (cm) (4 

inches (in)) (Service 2004c). The Forest 

recently requested formally 

conferencing for the James Allotment 

regarding potential impacts related to 

trampling of larvae from livestock 

(Forest Service 2004b). Prior to this 

request, we there have been no 

conferences between the Forest Service 

and the Service on livestock activities 

and the butterfly (Service 2004c). 

Nevertheless, the Forest Service 

manages these allotments consistent 

with existing range management 

standards and guidelines under their 

Forest Plan, and when management 

adjustments are necessary to meet the 

forage levels, adjustments are made 

through the permit administration 

process (Forest Service 2002d, 2004i, 

2004l, United States District Court 

2002). The existing forage utilization 

(i.e., 35 percent) is adequate for the 

protection of the butterfly to limit 

adverse effects (Service 2004c). 

Moreover, the Forest Service has been 

and is proposing to distribute livestock 

throughout the pastures in each 

allotment to minimize the number of 

cattle and the potential for trampling of 

butterflies within individual meadows 

(Forest Service 2002d, 2004b). The 

Forest Service will also formally 

monitor three meadows within the 

James Canyon and Pumphouse 

Allotments (Forest Service 2004i), in 

addition to monitoring requirements 

under a previous (2001) court settlement 

agreement (Forest Guardians v. United 

States Forest Service et al. CIV 00–490 

JP/RLP & CIV 00–1240 JP/RLP–ACE 

(Consolidated)) and as part of the permit 

administration process (Forest Service 

2002d). If needed, management 

adjustments (e.g., reducing the number 

of livestock or removing all livestock) 

are made through the permit 

administration process (Forest Service 

2002d, 2004i, 2004l). 

Although we previously assumed that 

grazing can eliminate or reduce the food 

plants used by the butterfly, we now 

conclude that management of current 

and future levels of grazing is 

compatible with conservation of the 

butterfly because the Forest Service is 

currently and will continue to manage 

these allotments for moderate grazing 

(i.e., 35 percent forage utilization) 

(Service 2004c, Forest Service 2002d, 

2004i). For example, we incorrectly 

assumed that grazing would reduce or 

eliminate sneezeweed (Helenium 

hoopesii). In fact, the USDA Poisonous 

Plant Research Laboratory (2004) reports 

that sneezeweed is a poisonous 

nonpalatable species that induces 

chronic vomiting when eaten by 

animals. The Forest Service also 

indicated that most of the mountain 

meadows are currently in satisfactory 

range conditions and that sneezeweed 

may actually decrease as range 

conditions improve (Forest Service 

2001).

A focused study on the butterfly 

found that heavy grazing of butterfly 

foodplants, particularly during years 

with below-normal precipitation, may 

result in increased trampling and 

mortality of butterfly larvae because 

New Mexico penstemon may be among 

the few plants that are green (Pittenger 

and Yori 2003). On the other hand, the 

Forest Service indicated that 

Pumphouse Canyon has one of the 

highest densities of the butterfly even 

with high forage utilization in 1999 (i.e., 

60 to 70 percent) from combined elk and 

livestock use (Forest Service 2001, 

2002d). Leaf lengths of palatable grass 

species in Pumphouse Canyon averaged 

8.4 cm (3.3 in) in 1999, 11.4 cm (4.5 in) 

in 2000, 21.3 cm (8.4 in) in 2001, and 

10.1 cm (5.3 in) in 2002 (Forest Service 

2002d). A leaf length of 10.1 cm (4 in) 

and greater reflects moderate forage 

utilization and equates to about 35 

percent forage utilization (Forest Service 

2002d). The Forest Service did not 

provide any monitoring data to us from 

2003 or 2004, but indicated that they are 

managing this and other allotments to 

attain moderate forage use (Forest 

Service 2004d, 2004i). Although 

Pittenger and Yori (2003) found that 

heavy grazing on New Mexico 

penstemon occurred during 2002 within 

the Pumphouse Allotment, there were 

no differences in the density of New 

Mexico penstemon when compared to 

ungrazed meadows within Spud Patch 

Canyon. They also did not find a 

difference in the overall number of adult 

butterflies observed between moderate 

and heavy grazing years (i.e., 2000, 

2001, and 2002) within the Pumphouse 

Allotment (Pittenger and Yori 2003). 

Forage utilization may have been high 

in 1999 because of a disproportionate 

amount of grazing by elk (Forest Service 

2002d) (see discussion below on current 

elk management). 

We do not expect that heavy grazing 

will continue to occur within the range 

of the butterfly because the Forest 

Service has recently been monitoring 

and managing these allotments to attain 

35 percent forage utilization and they 

must manage and protect long-term 

range conditions consistent with their 

range management regulations (e.g., see 

36 CFR 222) (Forest Service 2002d, 

2004b, 2004i, 2004l, United States 

District Court 2002). We also note that, 

similar to other site-specific decisions, 

authorized grazing permits must be 

consistent with the applicable Forest 

Plan at the time they are issued (36 CFR 

219.10). 

We find that the Lincoln National 

Forest Plan will manage butterfly 

habitat because at least two of the 

applicable standards and guidelines 

apply to the butterfly including: (1) 

Protecting and managing essential and 

critical habitats of threatened, 

endangered, and sensitive species 

through ensuring that legal and 

biological requirements of designated 

plant and animal species are met; and 

(2) identifying, protecting, and 

enhancing existing and potential habitat 

of all threatened, endangered, and 

sensitive species (USDA Forest Service 

1986). The butterfly has been designated 

by the Regional Forester as a Sensitive 

Species, and, as such, will continue to 

be analyzed in all applicable NEPA 

documents (Forest Service 2004i). The 

Forest Service has indicated that 

conservative stocking levels, deferred 

and rest-rotation grazing schemes, and 

timing of permitted grazing are the best 

ways to minimize grazing impacts on 

the butterfly (Forest Service 2001). We 

agree with this conclusion. 

We acknowledge that grazing can 

incidentally kill butterflies through 

trampling and/or accidental ingestion of 

larvae or eggs (Pittenger and Yori 2003, 

Forest Service 2002, White 1986), and 

anticipate such effects are occurring 

within each of the allotments that 

overlap with occupied butterfly habitat 

(i.e., Pumphouse, Russia Canyon, and 

La Luz Watershed). However, because 

the Forest Service is managing these 

allotments for medium-intensity 

grazing, we believe the effects will be 

minimal and not result in the butterfly 

population being compromised (Forest 

Service 2002d). In the future, this same 

management strategy (i.e., the forage 

76438 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

utilization threshold) will ensure larval 

and adult foodplants are maintained. 

In 2001, the New Mexico Department 

of Game and Fish changed the 

management objective for game 

management unit 34, which overlaps 

with the range of the butterfly. A 5-year 

plan was adopted to reduce the number 

of elk from about 4,000 to 1,000 across 

the entire game management unit 

(Forest Service 2002). The current elk 

population goal is 1,700 animals, with 

the most recent survey results 

estimating a current elk population of 

2,700 animals within this game 

management unit (Forest Service 

2004b). The New Mexico Department of 

Game and Fish has continued to 

increase the number of elk hunting tags 

and has implemented depredation hunts 

to minimize the impact of elk grazing on 

range conditions (Forest Service 2004b). 

These actions will continue to further 

reduce the impact of grazing on the 

butterfly.

The foregoing analysis indicates that 

even when grazing is not closely 

managed, grazing appears to have a 

negligible effect on butterfly 

populations and its major foodplant, 

New Mexico penstemon (Pittenger and 

Yori 2003). Still, we expect that grazing 

will be closely managed to attempt to 

meet 35 percent forage utilization 

(Forest Service 2002d, 2004i, 2004l). For 

these reasons, the current and future 

occurrence of grazing does not represent 

a principal factor in the viability of the 

species and its habitat. 

Trespass Horses 

About 20 to 40 trespass horses have 

been observed grazing in meadows of 

the James Allotment within the northern 

portion of the Sacramento Ranger 

District (Forest Service 2004b, Service 

2004b). Trespass horses could have an 

impact on forage utilization levels and 

trampling of butterfly host plants and 

larvae (Forest Service 2004b). The 

Forest Service has posted impoundment 

notices, contacted presumed owners, 

and spent $10,000 repairing and 

rebuilding fences along the Forest 

boundary (Forest Service 2004i). To 

date, these efforts have not been 

successful in reducing the number of 

trespass horses on the Sacramento 

Ranger District (Forest Service 2004b). 

Similar to livestock grazing, we believe 

that trespass horses will have negligible 

effects on butterfly populations and its 

major foodplant, New Mexico 

penstemon. They are also unlikely to eat 

sneezeweed because it is a poisonous, 

nonpalatable species. Horses are 

currently having very little impact on 

soil and range conditions. For example, 

the Forest Service reports that the soil 

condition rating is satisfactory and 

range condition is stable or increasing 

on 98 percent of the James Allotment 

(Forest Service 2004b). For these 

reasons, trespass horses are considered 

a low threat to the butterfly, because 

they occur in a limited number of 

meadows in the James Allotment (Forest 

Service 2004b). We also note that the 

Forest Service has committed to 

removing the feral horses from the 

James Allotment, and we anticipate that 

this will happen in the near future 

(Forest Service 2004b, Service 2004b). 

We have not relied upon this future 

removal in our determination that 

trespass horses are a low threat. 

Fire Suppression and Wildfire 

In the proposed rule, we concluded 

that the condition of mountain forest 

lands as a result of 100 years of fire 

suppression in the Sacramento Ranger 

District threatened the butterfly. In light 

of new information we received (e.g., 

Service 2004b, Forest Service 2002a, 

2002c), we reexamined our original 

conclusion. Prior to 1900, the mean 

natural fire interval for forests in the 

Sacramento Mountains was about 4 to 5 

years (Kaufmann et al. 1998). Frequent, 

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) than is currently the case 

(Kaufmann et al. 1998). 

Due to the small known range and 

low abundance of the butterfly, the 

subspecies is potentially vulnerable to 

catastrophic wildfires. Although at least 

nine catastrophic wildfires have burned 

over 34,000 ha (90,000 ac) during the 

last 50 years in the Sacramento 

Mountains (Kaufmann et al. 1998), a 

significant fire has not been 

documented within occupied habitat or 

proposed critical habitat since 1916 

(Service 2004b). Because fire is an 

inherently variable process depending 

on season, fuels, wind, moisture, etc. it 

impossible to accurately predict how 

the butterfly will respond. Nevertheless, 

the effects of fire on butterfly habitat 

quality and availability can be expected 

to vary based on the severity of fire, the 

response of foodplants to burn severity, 

and suitability of postfire vegetation 

(Romme et al. 2004). 

Although the effect of fire upon this 

species is unknown (e.g., for a recent 

review see Service 2004b), some local 

information is available from post-fire 

monitoring of the Scott Able fire that 

burned 24 km (15 mi) southeast of the 

Village of Cloudcroft. In May 2000, the 

Scott Able fire burned 6,400 ha (16,000 

ac) in the Lincoln National Forest, 

covering elevations between 2,250 to 

3,000 m (7,000 to 9,300 ft) (Cary 2004 

cited in Service 2004b). This intense, 

wind-driven fire burned an estimated 0 

to 10 percent of the meadows and 85 to 

90 percent of the forested canopies 

within the mapped fire boundary (Cary 

2004 cited in Service 2004b), meeting 

the qualifications for a stand 

replacement fire in much of the burned 

area (McCarthy and Yanoff 2003). 

Meadows in mixed conifer habitat that 

did not burn were situated primarily 

along drainages (Cary 2004 cited in 

Service 2004b). The butterfly does not 

occur in the location of the burn, but 

New Mexico penstemon and 

sneezeweed can be found (Cary 2004 

cited in Service 2004b). Between 2001 

and 2003, mobile butterflies associated 

with shrubs, grasses, and forbs have 

shown a positive response to the fire, 

with most species peaking in 2001 after 

abundant spring precipitation (Cary 

2004 cited in Service 2004b).

Fires in the Sacramento Mountains 

tend to burn in a mosaic pattern (i.e., 

patches of burned and unburned 

vegetation) and are less likely to burn in 

meadows compared to surrounding 

forests because of the types of fuel 

involved (Forest Service 2001, 2002c). 

In fact, weather conditions that would 

trigger a wildfire in forested areas (i.e., 

mixed conifer fuel type) that are 

adjacent to meadows consist of very dry, 

windy days (Forest Service 2001, 

2002c). Meadow habitat is usually not at 

high risk during fires within the mixedconifer fuel type because fire behavior 

during wind-driven events generally 

burns through the crowns or canopy of 

trees, with little to no high-severity 

burns within meadows (Forest Service 

2001, 2002c). These conditions would 

not result in pronounced heat effects in 

the soil or seedbank (R. Guaderrama 

cited in Service 2004b, Forest Service 

2001), especially within areas where the 

larval host plants grow, because they 

usually lack continuous fine fuels. For 

example, in areas burned by the Scott 

Able fire, underlying soils were not 

exposed to extreme temperatures and 

soils were generally unharmed (Forest 

Service 2000). These data suggest that 

meadows and drainages may be less 

likely to burn during wind-driven 

events, which offers some protection to 

the butterfly and its habitat. Still, some 

amount of butterfly habitat will likely 

burn. In that event, it is likely that 

adjacent butterfly localities in 

surrounding habitat and unburned 

inclusions would serve as source 

populations to recolonize burned areas 

following a fire. This information 

suggests that catastrophic wildfire may 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76439

not be as great a threat as we had 

originally believed. 

Since 1999, the Sacramento Ranger 

District of the Lincoln National Forest 

has been working on reducing the threat 

of catastrophic wildfire in the wildlandurban interface (WUI) (Forest Service 

1999, Service 2004). We have been 

following several projects throughout 

the Sacramento Ranger District, and 

have found that some projects may not 

only provide a reduction in the risk of 

catastrophic wildfire, but also enhance 

marginally suitable butterfly habitat 

along the edges of forests/meadows 

(Service 2004d). We have observed that 

the butterfly’s foodplants, particularly 

New Mexico penstemon have been 

reestablished within areas that were 

recently disturbed (e.g., Highway 130 

adjacent to Deerhead Campground, 

edges of the football field) (Service 

2004d). The type of disturbance and 

soils likely influence whether 

foodplants will be reestablished; 

however, many of the forest/meadow 

edges that are contained within WUI 

projects have low-density foodplants 

already established (Forest Service 

2000c). Within these areas, we believe 

that an increase in sunlight from 

thinning activities will allow foodplants 

to increase in both size and abundance. 

This is what we have observed within 

the construction footprint of Highway 

130 adjacent to Deerhead Campground, 

the edges of the football field on Lost 

Lodge Road, and in drainages 

throughout these areas that have been 

thinned (Service 2004d). 

In the Sacramento Mountains, several 

locations adjacent to occupied butterfly 

habitat have been progressively thinned 

since 2002. Thinned areas occur in 

Bailey Canyon (215 ha, 532 ac), 

Pineywood Canyon (262 ha, 647 ac), 

Deerhead Canyon (146 ha, 360 ac), and 

along Cox Canyon (72 ha, 178 ac). An 

additional 373 ha (921 ac) are 

designated for thinning in Apache 

Canyon and 81 ha (201 ac) are projected 

for a different part of Deerhead Canyon 

(Service 2004b). Thinned locations 

adjacent to suitable butterfly habitat 

may be used or colonized by the 

butterfly (Service 2004d). Pittenger and 

Yori (2003) documented butterfly 

movement between meadows, with the 

movements of one butterfly crossing a 

closed-canopy mixed-conifer forest for 

the entire route. Butterfly movements 

such as this example are likely not 

common because forests do not provide 

the necessary foodplants. Thus, 

woodland canopy reduction is 

important for open-habitat butterflies, 

which readily move from meadows into 

corridors, but rarely from meadows into 

dense woodlands (Sutcliffe and Thomas 

1996). Also, open-habitat specialist 

butterflies are known to reach higher 

densities in patches connected by 

corridors than in isolated patches 

(Haddad and Baum 1999). The 

formation of cleared corridors or 

stepping-stone patches by thinning 

could allow the butterfly to migrate 

between suitable meadows (Maina and 

Howe 2000, Service 2001b), thus 

encouraging colonization of new sites or 

genetic exchange among the 

subpopulations. Thinning has also been 

associated with the establishment of 

plant and butterfly edge specialists (i.e., 

species that are adapted to the 

conditions created at the boundary 

between wild and disturbed lands such 

as a forest where the adjacent land has 

been cut), which could provide 

potential microhabitats or nectar 

sources for the butterfly (Bergman 

2001). We have not done an extensive 

inventory of all areas thinned 

throughout the Sacramento Ranger 

District; however, we maintain that 

areas where foodplants become more 

abundant could enhance habitat 

connectivity between occupied 

localities and provide long-term benefits 

for the butterfly, even with the potential 

for short-term impacts (e.g., Service 

2002b, 2001b). Thus, we conclude that 

thinned forests could facilitate habitat 

connectivity between meadows 

occupied by the butterfly (Service 

2001b).

Since 2000, the Forest Service has 

invested almost $11 million to reduce 

hazardous fuels on more than 18,616 ha 

(46,000 ac) on the Lincoln National 

Forest, with funding and amount of land 

treated in 2004 nearly three times the 

2000 level (Forest Service 2001, 2002a, 

2003, 2004c, 2004h, 2004m, Service 

2004b). As part of the Healthy Forests 

Initiative, in June 2004, the Lincoln 

National Forest received $750,000 to 

thin an additional 607 to 809 ha (1,500 

to 2,000 ac) of overgrown stands of trees 

adjacent to communities in Lincoln and 

Otero counties (2004h). Vegetation 

management activities within the range 

of the butterfly consist primarily of 

thinning treatments to reduce fire fuels 

loads and restore forest structure to a 

more natural state. About 89 percent of 

the lands within the proposed critical 

habitat boundary (12,419 of 17,628 ha 

(30,687 of 43,560 acres)) are classified 

by the Forest Service as WUI treatment 

areas (Service 2004c). The goals of these 

thinning treatments are to reduce the 

threat of catastrophic wildfire in the 

wildland-urban interface and to assist in 

the economic sustainability of these 

communities. As described above, little 

quantitative data has been gathered 

following the WUI projects being 

implemented on the Lincoln National 

Forest. Nevertheless, qualitatively we 

have found a beneficial response of the 

butterfly to the increase in thinning 

(Service 2004d). Recent WUI projects 

have targeted reducing ladder fuels 

(those fuels that convey flames from the 

ground to the tree canopy) and tree 

densities in forests surrounding the 

meadows (Service 2004b). These 

projects should assist in lowering the 

risk of catastrophic wildfire in forested 

areas and may reduce the intensity and 

severity of wildfires in adjacent 

butterfly habitat (i.e., meadows). 

The Forest Service is also currently 

proposing to amend their Forest Plan to 

allow broader application of natural fire 

to aid in forest restoration (Forest 

Service 2004d). Depending on the 

season of burns and other factors, fire 

activity from this action could be 

expected to range from creeping surface 

fires with flame lengths of less than 30 

cm (12 in) burning in pine litter and 

duff (leaves and branches on the forest 

floor) during periods when temperatures 

are low and the relative humidity is 

high, to an active surface fire burning 

freely in all surface fuels, and actively 

torching groups of seedling and smallpole-size (2.54 to 10 cm)(1 to 4 in) trees. 

The more active fires will also regularly 

torch individual overstory trees of 

various sizes as well as small groups of 

overstory trees with continuous ladder 

fuels beneath them. These types of 

burns would generally provide 

conditions suitable for increased 

herbaceous plant growth by removing a 

thick layer of dead plant debris within 

treated areas, in addition to enlarging 

some of the meadows (i.e., from killing 

conifers that have encroached). We 

believe that the mosaic effect created by 

burned and unburned areas, in 

conjunction with a reduction in 

catastrophic fire risk and increase in 

meadows (from encroaching conifers 

burning), may result in long-term 

benefits for the butterfly. 

We previously concluded that 

wildfire was one of the most significant 

threats facing this species. In the 

proposed rule, we found that a 

significant increase in funding was 

required to reduce the risk of 

catastrophic fire for the butterfly. The 

new information we reviewed indicates 

this funding and subsequent increases 

in fuels management have occurred and 

will continue for the foreseeable future 

(Forest Service 2001, 2002a, 2003, 

2004c, 2004h, Service 2004b). We have 

also reexamined our original conclusion 

based upon site-specific data from fires 

that have burned in the last few years. 

These data demonstrate that meadows 

76440 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

generally do not burn at high intensity, 

but usually burn as a mosaic (Service 

2004b). Given recent information from 

the Sacramento Mountains and new and 

continued efforts to reduce the risk of 

catastrophic wildfire, we no longer 

consider fire a threat of high magnitude. 

In fact, fire and activities conducted to 

reduce the risk of fire may be beneficial 

by increasing connectivity between 

areas of suitable butterfly habitat. Thus, 

we find the threat to the butterfly from 

catastrophic wildfire has been reduced 

and is no longer significant. 

Highway and Forest Road 

Reconstruction 

In the proposed rule, we concluded 

that construction of roadways had 

historically eliminated or reduced the 

quality or quantity of butterfly habitat. 

We reexamine this conclusion based 

upon new information. The Forest 

Service indicated in their comments on 

the proposed rule that the only road 

construction planned within butterfly 

habitat is associated with campground 

reconstruction projects (Forest Service 

2001). These activities, including the 

associated road construction, are not 

considered a threat to the butterfly (see 

‘‘Campground Projects’’ section above). 

Road grading activities will likely occur 

on both Forest Service and private 

lands. The Forest Service has not found 

adverse impacts to the butterfly from 

these actions because the majority of 

these maintenance activities occur 

within the existing footprint of the road 

during the non-active season of the 

butterfly (Forest Service 2001). These 

road maintenance activities can cause 

localized adverse impacts to the 

butterfly through the elimination of 

larval food and adult host plants or the 

crushing of life history stages. However, 

as described under the Otero Electrical 

Powerline analysis above, many of these 

impacts are likely temporary and will 

not lead to a disruption of local 

populations.

The NMSHTD project detailed in the 

proposed rule cleared a variety of 

vegetation by scraping and widening the 

road and shoulders, constructing 

retaining walls, adding drainage ditches 

and culverts, and reconstructing a 

curve. Topsoil and larval food plants 

were stockpiled and used in 

revegetation when the project was 

completed. Monitoring documented that 

transplanting efforts were not effective 

(Pittenger and Yori 2003); however, the 

area has been revegetated from naturally 

occurring seeds and now contains larval 

food plants and adult nectar sources 

(Service 2004). Although the butterfly 

has not been documented within this 

area to date, we believe it may be used 

as early as the 2005 active season of the 

species (April through October). We 

base this conclusion on observations in 

the areas adjacent to the football field 

that had similar vegetation disturbance 

and subsequent foodplant and butterfly 

recolonization (Service 2004d). This 

information indicates that road 

maintenance and reconstruction 

activities have the potential to adversely 

affect the butterfly, but they have not 

been demonstrated to be a serious 

impact because the butterfly and its 

foodplants are more resilient than 

previously thought. Thus, we do not 

consider road reconstruction and 

maintenance activities to be a serious 

threat to the butterfly that will result in 

long-term consequences. 

Recreational Impacts 

Off-highway vehicles (OHVs) pose a 

threat to the butterfly through direct 

crushing of eggs, larvae, pupae, or 

thermoregulating (maintenance of a 

constant internal body temperature 

regardless of environmental 

temperature) adults located on bare 

soils, leaves, or grasses within or 

adjacent to trails and roads (66 FR 

46575, September 6, 2001). The Forest 

Service recently produced a map and 

report that categorized meadow 

disturbances (Forest Service 2004e). 

They found that dispersed camping and 

OHV use is increasing on the Forest, 

and that impacts are occurring in about 

half of the occupied butterfly habitat 

(225 ha (555 ac)) (Forest Service 2004e). 

The level of OHV activity is high within 

four areas (Pumphouse Canyon, Bailey 

Canyon, Zinker Canyon, and La Luz 

road in the vicinity of Forest Road 

162A). 

During 2004, the Forest Service 

focused on reducing the impact of 

illegal OHV traffic and related 

recreational impacts within the 

occupied butterfly habitat of Bailey 

Canyon by: (1) Fencing access points to 

meadows within these areas; (2) felling 

logs and trees across trails; (3) enforcing 

regulations that prohibit travel off-road 

use in certain areas; (4) placing signs in 

the middle of illegally created OHV 

trails; and (5) increasing public 

education regarding impacts of OHV on 

natural resources (Forest Service 2004f, 

Service 2004d). For example, fencing 

that was placed in Bailey Canyon during 

summer 2004 has thus far proved to be 

an effective deterrent against OHVs 

entering occupied butterfly habitat 

(Service 2004d, Forest Service 2004i). 

Fencing, signs, and monitoring by law 

enforcement personnel have similarly 

stopped OHVs from entering butterfly 

habitat in other areas of the forest (e.g., 

Pines Campground and Silver Springs) 

(Forest Service 2000c). The Forest 

Service indicated that these fences have 

not been cut or torn down and OHVs 

generally stay out of meadows if their 

access is blocked (Service 2000c, 

2004d). The Forest Service has 

committed to continue to alleviate OHVrelated impacts to the butterfly by 

installing physical barriers, posting 

signs, felling trees, and enforcement 

(Forest Service 2004i). Nationally, the 

Forest Service is also currently revising 

their travel management regulations to 

require each Forest to establish a system 

of roads and trails and regulate or 

prohibit certain motor vehicle uses (July 

15, 2004, 69 FR 42381). 

We are not relying on this effort in our 

analysis of this potential threat, but 

recognize that the revised travel 

management regulations may provide a 

long-term conservation benefit to the 

species by providing a consistent policy 

that can be applied to all classes of 

motor vehicles, including OHVs, that 

would allow the agency to regulate 

different types of uses. Nevertheless, it 

is likely that even with these measures, 

some temporary OHV-related impacts 

will continue to affect the butterfly and 

its habitat. OHV impacts will likely 

result in the temporary crushing or 

possible destruction of foodplants in 

localized areas and mortality of 

individual butterflies (or other lifehistory stage) (Service 2004d). We 

believe the magnitude of these impacts 

is low based on our observations of 

OHV use and the estimate of OHV 

impacts in Kockelman (1983). 

Kockelman (1983) estimated that a twowheel OHV leaves a track about 13 cm 

(5 in) wide and disturbs about 0.4 ha (1 

ac) for every 32 km (20 mi) traveled, 

whereas tracks made by a 4-wheel OHV 

are typically 0.5 m (18 in) wide and 

disturb about 0.4 ha (1 ac) for every 10 

km (6 mi) traveled. Using these 

estimates, we believe that only a small 

proportion of occupied butterfly habitat 

would be impacted in a given year. For 

example, if a 4-wheel OHV tracks across 

occupied butterfly habitat, the OHV 

would need to travel 96.5 km (60 mi) 

uniformly to completely disturb a 4.0-ha 

(10-ac) meadow. Many of the OHV 

impacts that have been observed are 

single events (i.e., there are fewer than 

5 to 10 OHV tracks across a meadow) 

(Forest Service 2000c, Service 2004d). 

This type of an impact would account 

for very little habitat disturbance. For all 

of these reasons, we do not believe that 

OHVs significantly threaten the 

butterfly. 

In the proposed rule, we found the 

butterfly may also be threatened by 

impacts from mountain bikes, hiking, 

and camping because of the 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76441

development of trails, a reduction of 

native vegetation to barren areas, and 

trampling, but the potential significance 

of these impacts had not been 

quantified. We indicated that the 

species had the potential to be impacted 

by these activities because larvae could 

be found along and adjacent to several 

popular mountain biking routes, hiking 

trails, and dispersed camp sites.

The Forest Service has conducted 

project-by-project analysis of large 

events (see discussion below) to 

determine potential impacts to the 

butterfly. These analyses will continue 

because the species is designated as a 

sensitive species on the Lincoln 

National Forest (Forest Service 2001, 

2004i). As a sensitive species, the Forest 

Service conducts surveys within habitat 

that is capable of supporting the 

butterfly and analyzes the impacts of 

proposed projects as part of the NEPA 

process (Forest Service 2004i). For 

example, the Forest Service indicated 

that their biologists survey routes prior 

to large events such as races, and they 

determined the trails were not occupied 

by larvae and, therefore, were not 

affected (Forest Service 2001). It is our 

understanding that if larvae were to be 

found within the route of a race, the 

Forest would either analyze the impact 

on the species through the development 

of a Biological Evaluations (BEs) and a 

NEPA document, or they would move 

the route to avoid impacts to the 

butterfly. We do not have quantitative 

data on the potential impact from hiking 

or dispersed camping. However, our 

observations over the last several years 

suggest the potential adverse impacts 

from hiking and dispersed camping are 

minor and result in short-term crushing 

of vegetation (Service 2000a). 

We still believe mountain biking, 

hiking, or camping may directly or 

indirectly affect larval food plants, 

nectar sources, or various life stages of 

the butterfly through the development 

of trail ruts, the loss of residual topsoil 

and vegetation, increased erosion, the 

creation of stretches of standing water or 

muddy trail/road conditions, the 

development of parallel tracks, and the 

establishment of unauthorized trails 

(Cessford 1995). However, it does not 

appear that these impacts are likely 

significant for the butterfly. We reached 

this conclusion because we have found 

that some small-scale impacts such as 

those described above, particularly 

temporary crushing of vegetation (e.g., 

on trails), does not result in long-term 

impact to the local population (e.g., see 

Service 2000, 2000a, 2002c, 2004e) 

because only a small number of 

individuals have the potential to be 

affected. Thus the overall population 

would remain intact. 

We have continued to observe a 

variety of these small-scale impacts 

(e.g., barren ground, trampled food 

plants, multiple trails, vehicle tracking, 

etc.) in areas used by larval and adult 

life stages of the butterfly. Nevertheless, 

it does not appear that these small-scale 

disturbances have reduced the amount 

of suitable habitat in and around 

developed campgrounds or 

undeveloped campsites known to 

support the butterfly, because the 

subspecies is still abundant within these 

areas (e.g., Deerhead, Pines, Sleepygrass, 

Slide, Black Bear, and Fir 

Campgrounds) (Forest Service 2004e). 

Consequently, the effect of mountain 

bikes, hiking, and camping on the 

butterfly is not currently considered a 

threat. 

Nonnative Vegetation 

In the proposed rule, we found that 

nonnative vegetation threatened the 

butterfly by out-competing and reducing 

or eliminating food plants for larvae and 

nectar plants used by adults (66 FR 

46575, September 6, 2001). On the 

Lincoln National Forest, there are 12 

aggressive nonnative plant species, 

including Russian knapweed 

(Acroptilon repens), musk thistle 

(Carduus nutans), oat grass, and teasel 

(Dipsacus sylvestris). In 2002, we 

completed an informal conference with 

the Forest Service regarding a Districtwide noxious weed management 

program (Service 2002, Forest Service 

2000d). This program also authorizes 

the NMSHD to treat noxious weeds 

within state and Federal highway rightsof-way (Forest Service 2000d). We 

concluded that the effects from the 

Forest Service’s proposal to manage and 

remove noxious weeds were expected to 

be insignificant (i.e., should never reach 

the level where incidental take will 

occur) or discountable (i.e., effects are 

extremely unlikely to occur) to the 

butterfly (Service 2002). These data 

indicate that nonnative vegetation and 

the application of herbicides are 

currently being managed, which 

significantly reduced the threat to the 

species. As such, we do not believe the 

nonnative vegetation and the 

application of herbicides are a 

significant threat to the butterfly. 

Conclusion for Factor A 

The butterfly appears to exhibit much 

of the same behavior, life history, and 

patchy distribution as other wellstudied species in this genus. The 

patchy distributional pattern is expected 

in many butterflies in the genus 

Euphydryas and other species, because 

they exist as metapopulations and at 

any instant butterflies may be using 

some areas and not others (Hanski and 

Gilpin 1991). Suitable habitat within the 

range of the species can play a pivotal 

role in maintaining natural 

metapopulations, especially butterflies 

that may have limited dispersal abilities 

(Murphy and Weiss 1988). 

In the proposed rule, we found that 

much of the remaining suitable butterfly 

habitat, and the long-term persistence of 

the species, was threatened by the direct 

and indirect effects of commercial and 

private development, Forest Service 

projects, catastrophic wildfire, fire 

suppression activities, highway 

reconstruction, OHV use, trampling, 

overgrazed range conditions, and 

nonnative vegetation. As detailed above, 

we received new information since 

publication of the proposed rule specific 

to the butterfly and the potential threats. 

It is our determination that based on an 

analysis of the best scientific and 

commercial data available that the 

present or threatened destruction, 

modification, or curtailment of the 

butterfly’s habitat or range is no longer 

a significant factor because new 

information indicates that these threats 

have been eliminated or reduced. 

Considering the magnitude, imminence, 

and irreversibility of threats to the 

butterfly and its habitat, we now 

conclude that the threats identified 

under Factor A are not likely to cause 

the species to become endangered 

within the foreseeable future throughout 

all or a significant portion of its range 

(see discussion after ‘‘Factor E’’ below). 

Based upon the information reviewed 

above, we also conclude that the 

butterfly is not endangered of extinction 

throughout all or a significant portion of 

its known range. 

B. Overutilization for Commercial, 

Recreational, Scientific or Educational 

Purposes

In our proposal, we found that the 

species was at risk from over-collection. 

The Forest Service issued a closure 

order in April 2000 for the collection of 

any butterflies without a permit on the 

Smokey Bear and Sacramento Districts 

of the Lincoln National Forest (Forest 

Service 2001). This closure order 

restricts the collection of the butterfly 

without a permit. Pursuant to 36 CFR, 

§ 261.58(s), the Forest Service 

specifically prohibited ‘‘capture, 

collection, killing, possession, storage, 

or transportation of the Sacramento 

Mountains checkerspot butterfly, and of 

life stages or parts thereof.’’ The Forest 

Service posted the closure order in 

accordance with their regulations and 

also published a notice of the closure 

76442 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

order in the newsletter of the 

Lepidopterists’ Society (36 CFR 261, 

Lepidopterists’ Society Newsletter 1999, 

Holland 1999). Forest Service Law 

Enforcement is aware of possible threat 

of illegal collecting. It is our 

understanding that they patrol these 

areas. Penalty for illegal collection is a 

maximum of $5,000 and 6 months in 

jail. Since the closure order was 

enacted, we have not found any 

evidence (e.g., glassine collection 

envelopes, commonly used to house 

captured individuals) that the butterfly 

is being illegally collected. Since 2000, 

we and the Forest Service have spent 

hundreds of person-hours in the field 

surveying for the butterfly, and neither 

we nor they have observed any people 

that appeared to be collecting the 

butterfly. The Forest Service intends to 

keep the closure order in place 

indefinitely. Consequently, on the basis 

of the efforts of the Forest service and 

the implementation of the closure order, 

we believe that over-collection is no 

longer considered a threat to the 

species. 

C. Disease or Predation 

There are no indications at this time 

or at the time of the proposal that 

disease or predation might be a limiting 

factor for the butterfly. 

D. The Inadequacy of Existing 

Regulatory Mechanisms 

Public Lands 

While inadequate protection by way 

of existing regulatory mechanisms was a 

factor in our decision to propose this 

species for listing, developments since 

our proposal have addressed these 

inadequacies. The Forest Service has the 

authority through the National Forest 

Management Act (NFMA) to manage the 

land and activities under their 

administration to conserve the butterfly. 

For example, this species was placed on 

the Regional Forester’s Sensitive 

Species List, and the Forest Service has 

minimized or avoided potentially 

adverse impacts to the butterfly by 

either altering or canceling several 

proposed projects including 

campground reconstruction, a new 

administrative building, Townsite Act 

proposal, nonnative vegetation 

management, and the Dry Canyon 

Telephone line project (see Factor A 

section above for details). The Forest 

Service indicated that they currently 

provide protection and management 

measures for the butterfly because it is 

a designated sensitive species (Forest 

Service 2001). The Forest Service will 

continue to protect and manage 

butterfly habitat on public lands by 

analyzing potential impacts of proposed 

projects on the butterfly (Service 2004b, 

Forest Service 2004i). In fact, Forest 

Service policy (FSM 2670.3) states that 

Biological Evaluations (BEs) must be 

completed for sensitive species, and 

signed by a journey-level biologist or 

botanist. The BE must be signed prior to 

any NEPA decision document. BEs must 

include an evaluation of effects of 

proposed management actions on these 

species or their habitats occurring 

within the analysis area. The NFMA 

also requires the Forest Service 

‘‘provide for a diversity of plant and 

animal communities’’ (16 U.S.C. 

1604(g)(3)(B)) as part of their multiple 

use mandate. The Forest Service is 

required to maintain ‘‘viable 

populations of existing native and 

desired non-native species in the 

planning area’’ (36 CFR 219.19). The 

Sensitive Species program was designed 

to meet this mandate and demonstrate 

their commitment to maintain 

biodiversity on National Forest System 

lands. The intent of this program is a 

proactive approach to conserving 

species to prevent a trend toward listing 

under the Act, and to ensure the 

continued existence of viable, welldistributed populations. 

The Lincoln National Forest will 

continue developing BEs and 

conducting NEPA analyses for each 

project that will affect the butterfly or its 

habitat (Forest Service 2004i). We will 

continue to analyze these site-specific 

NEPA documents, conduct field 

surveys, and monitor the cumulative 

impacts of projects on the butterfly and 

its habitat. 

In areas that have the potential to 

support the butterfly, the Forest Service 

has and will continue to do so under 

their existing authorities: (1) Protected 

and managed occupied and unoccupied 

butterfly habitat on public lands; (2) 

applied appropriate weed and pest 

control practices in or near occupied 

meadows; (3) decreased risk of 

catastrophic wildfire; (prioritized fuel 

treatment areas near known, occupied 

habitat to reduce the risk of catastrophic 

wildfire); (4) managed public recreation; 

(5) managed campgrounds near butterfly 

meadows to limit vehicles, tents, and 

other equipment in confined areas; (6) 

developed and installed an interpretive 

kiosk regarding the butterfly at Pines 

campground to educate campers and 

visitors; (7) evaluated the potential 

impact to the butterfly prior to issuing 

special use permits; (8) managed 

domestic livestock grazing at levels that 

minimize impacts to the butterfly; (9) 

issued a closure order to protect the 

butterfly from the threat of collection; 

(10) ensured effective contract 

administration for projects occurring in 

butterfly habitat (i.e., monitor project 

implementation to document 

conservation measures are being 

implemented); and (11) implemented 

best management practices during 

maintenance of powerline corridors 

(Service 2004, 2004b, 2004c, 2004d, 

2004e, 2002, 2002a, Forest Service 

2004b, 2004i, 2002b, 2001, 2000b).

In the proposed rule, we found that 

existing regulatory mechanisms did not 

fully protect this species or its habitat 

on Forest Service lands. Because the 

Forest Service has implemented many 

efforts to manage and maintain butterfly 

habitat, and has the authority and 

regulations in place to continue such 

efforts into the future, we now find 

these efforts contribute significantly to 

the adequacy of existing regulatory 

mechanisms. 

Private Lands 

Private lands play an important role 

in the butterfly’s continued existence. 

Since publication of the proposed rule, 

we have found that there are local 

regulatory mechanisms pertaining to 

open space on the Village of 

Cloudcroft’s lands (Village of Cloudcroft 

2001). As noted above, the Village of 

Cloudcroft local zoning regulations (i.e., 

the Village Code) states that Greenbelt 

Zones shall consist of open space with 

no structures or commercial signs 

allowed. Further, there shall be no 

overnight parking or camping allowed 

within these areas. Within the Village of 

Cloudcroft, it is our understanding that 

native vegetation within greenbelt areas 

is generally not mowed and, in some 

areas currently provides suitable 

butterfly habitat that is occupied (Forest 

Service 2004e). Although we are not 

relying a future land transfer in our 

current review, the Village of Cloudcroft 

is also proposing to offer 16 ha (40 ac) 

(some of which contains occupied 

butterfly habitat) near the Cloudcroft Ski 

Area in James Canyon to the Forest 

Service (Service 2004b). In exchange, 

the Forest Service has allotted 16 ha (40 

ac) that is not butterfly habitat to the 

Village. This would bring additional 

butterfly habitat under Forest Service 

management and remove the potential 

threat of development. The Village has 

committed to improving the status of 

the butterfly and contributing to its 

long-term conservation by: (1) 

Following their zoning regulations on 

‘‘greenbelt zones’’ and open space with 

no structures in recently annexed (and 

any future annexed) lands; (2) 

committing to a land exchange with the 

Forest Service; and (3) providing 

community education and outreach for 

the conservation of the butterfly. We 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76443

view these actions as adequate existing 

regulatory mechanisms to minimize the 

current and future threats to the 

butterfly. 

On October 19, 2004, Otero County 

passed a resolution committed to 

conservation of the butterfly (Otero 

County 2004). This resolution outlines 

the County’s commitment to 

conservation of the butterfly (Service 

2004b, Otero County 2004), and 

initiated a process that will cause the 

County to begin amending its existing 

subdivision ordinance to provide 

conservation measures for the butterfly. 

The County has indicated to us that they 

intend to pass this ordinance in 

December 2004. As identified in Factor 

A above, the threat of commercial and 

private development is not believed to 

be significant at this time. Therefore, 

although future developments within 

butterfly habitat will likely be required 

to follow the amended subdivision 

ordinance, and we encourage and 

support this effort, we have not relied 

upon the development of a protective 

ordinance when analyzing the potential 

threat of this activity in Factor A above. 

E. Other Natural or Manmade Factors 

Affecting Its Continued Existence 

Insect Control 

In the proposed rule, we also 

determined that the application of 

carbaryl and Bacillus thuringensis (BT) 

to control insects poses a threat to the 

butterfly. Carbaryl is considered 

moderately to highly toxic and is lethal 

to many non-target insects, whereas BT 

can kill the larval stage of many insects, 

including butterflies (Cornell University 

1998a, 1998b). The Forest Service stated 

that any future proposed treatments 

would need to be analyzed under NEPA, 

and the suggestion that carbaryl or BT 

would be used to control these or other 

forest insects was premature. Although 

future applications of carbaryl or BT 

may pose a potential risk to the 

butterfly, there are no proposals to spray 

for insect outbreaks currently or in the 

future (Forest Service 2001, Service 

2004b). This action is no longer 

considered a significant threat to the 

species. 

Extreme Weather 

In the proposed rule we identified 

periodic droughts and atypical weather 

events as a threat to the butterfly. As 

noted in our response to comment 3 

above, we believe that the species can 

survive and has persisted despite 

natural events such as drought since the 

butterfly evolved in an environment 

subject to periodic atypical weather 

events. 

Roads 

When we proposed the butterfly as 

endangered we found that roads had the 

potential to threaten the butterfly (66 FR 

46575, September 6, 2001), but the 

direct and indirect impact on the 

butterfly was unknown. Similar to other 

potential threats, we now believe that 

existing roads are not likely to cause 

long-term impacts or disrupt 

metapopulation dynamics based upon 

the amount of foodplants growing along 

roads and the presence of butterfly egg 

masses and larvae observed in these 

areas (Service 2004b). Thus, we 

conclude that these impacts are not a 

significant threat to the long-term 

viability of the species. 

Mescalero Apache Nation

As identified in the proposed rule, it 

is unknown whether the butterfly is 

present on the Mescalero Apache Nation 

lands. These lands are managed by the 

Mescalero Apache Nation in accordance 

with tribal goals and objectives and 

within the framework of applicable 

laws. These lands are not Federal public 

lands or part of the public domain. The 

Mescalero Apache Nation is a sovereign 

government with inherent powers to 

make and enforce laws and manage and 

control its natural resources. To our 

knowledge, no butterfly surveys have 

been conducted on Mescalero Apache 

Nation lands. Therefore, we do not 

know the status of the butterfly on these 

lands, the amount or quality of suitable 

habitat, or the potential activities that 

may negatively or positively affect the 

species. Although timber harvest, 

prescribed burns, and grazing occur on 

Mescalero Apache Nation lands (i.e., see 

Service 2004g, Natural Resources 

Conservation Service 2004, Klinekole 

1998), we have no information regarding 

the presence or significance of any of 

these or other potential threats to the 

butterfly on Mescalero Apache Nation 

lands. We have considered whether the 

Mescalero Apache Nation lands would 

be a significant portion of the range. 

While we have mapped meadows (i.e., 

potential butterfly habitat) within 

Mescalero Apache Nation lands which 

occur between 2,450 and 2,750 meters 

(8,000 to 9,000 feet), it is unknown 

whether the butterfly is present on 

Mescalero Apache lands, and therefore 

we have very little information to 

suggest these lands are significant to the 

butterfly. Therefore, we determine that 

Mescalero Apache lands do not 

constitute a significant portion of the 

range. 

Finding and Withdrawal 

A variety of projects and conservation 

measures have been implemented by the 

Forest Service since 2001 that have 

reduced or eliminated threats to the 

butterfly. We have detailed these above 

in our analysis. Furthermore, since the 

proposed rule to list the butterfly as 

endangered was published, information 

from the Forest Service refined mapping 

of occupied and unoccupied habitat. 

This information will assist greatly in 

planning efforts for individual projects 

by providing an overall representation 

to collectively guide activities that will 

manage and maintain connectivity 

between patches of suitable butterfly 

habitat. In addition, we have 

demonstrated the resiliency of the 

butterfly and its foodplants by 

documenting the creation of new habitat 

where the butterfly is reproducing (the 

edges of the football field) (Service 

2004d). 

Based on a thorough analysis of the 

best available scientific and commercial 

information available on the butterfly, 

we have revised our conclusion about 

the threats to the species. We believe 

that the two greatest threats we 

previously identified, catastrophic 

wildfire and private and commercial 

development, are no longer significant. 

We also believe that new information 

and current management related to the 

threat of livestock has led to a reduction 

of this threat. Nonnative vegetation, 

OHVs, and other recreational activities 

are being currently managed to 

minimize impacts on the butterfly. 

Forest thinning and fuels management 

projects, in addition to campground 

reconstruction projects, may have had 

some short-term impacts, but will result 

in long-term benefits to the species. We 

have determined that the factors 

analyzed above either alone or in 

combination no longer significantly 

threaten the species or are of low 

magnitude. To be considered a threat, a 

factor must be shown to play a 

significant role in the dynamics of the 

species to such an extent that it is likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range. Based 

upon the factors analyzed, we determine 

that the species no longer is in danger 

of extinction throughout all or a 

significant portion of its range, nor is it 

likely to become endangered within the 

foreseeable future. 

This withdrawal of the proposed rule 

to list the butterfly as endangered is 

based on our conclusion that the 

butterfly is resilient to small-scale 

disturbance, such that the risk to the 

species has been reduced to a level 

76444 Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 

below the statutory definition of 

endangered or threatened. We have 

carefully assessed the best scientific and 

commercial information available 

regarding the past, present, and future 

threats facing the butterfly in 

determining to withdraw our proposed 

listing. Based on this evaluation, we are 

withdrawing our proposal to list the 

Sacramento Mountains checkerspot 

butterfly as endangered. As such, we are 

also withdrawing our proposal of 

critical habitat for the butterfly. 

We will continue to monitor the 

status of the species through 

monitoring, management, and projectrelated analyses (see ‘‘Conservation 

Plan’’ below). Additional information 

and comments will continue to be 

accepted on aspects of the species. We 

encourage interested parties outside of 

those parties already signatories to the 

Conservation Plan to become involved 

in the conservation of the species. For 

example, the Forest Service will 

continue to analyze potential projectrelated impacts on the butterfly through 

NEPA. Any interested individual or 

party can review and comment on these 

documents. We will reconsider our 

determination in the event that new 

information indicates that threats to the 

species are of a considerably greater 

magnitude than we have identified. 

Conservation Plan 

As described above, we signed a 

Memorandum of Understanding with 

the Village of Cloudcroft, Otero County, 

and the Forest Service, and 

cooperatively developed a Conservation 

Plan. The goal of the Conservation Plan 

is to provide conservation and 

management on public and private 

lands within the range of the butterfly 

(69 FR 60178). The individual and 

collective commitments of each of the 

parties are detailed in the Conservation 

Plan, and include time and cost 

estimates and responsible partners. 

Following the close of the public 

comment period, we collected the 

comments for all of the parties involved 

in the cooperative effort and provided 

the comments to them at the close of the 

public comment period. The 

cooperating parties of the Conservation 

Plan reviewed, analyzed, and 

incorporated public comments as they 

deemed appropriate. 

We did not rely upon the 

implementation of the conservation 

efforts identified in the Conservation 

Plan in making our final listing 

determination for the butterfly because 

many of the individual conservation 

efforts have not been completed and 

would require us to speculate on the 

certainty of their implementation and 

effectiveness. As such, we did not 

analyze the individual conservation 

efforts as they relate to the Service’s 

Policy for Evaluation of Conservation 

Efforts When Making Listing 

Determinations (68 FR 15100, March 28, 

2003) (PECE). Nevertheless, we 

summarize the Conservation Plan here 

to recognize that all of the parties are 

proactively looking for opportunities to 

conserve the butterfly within its range. 

We applaud the development of the 

Conservation Plan and believe it will 

assist in further improving the status of 

the butterfly and its habitat. 

The Conservation Plan provides an indepth review of the butterfly’s life 

history, habitat requirements, and 

known threats and further identifies the 

specific conservation efforts that will 

assist in management and maintenance 

of the butterfly and its habitat. 

Conservation efforts are categorized by 

the four primary objectives of the 

Conservation Plan: (1) Protect and 

manage occupied and unoccupied 

butterfly habitat on public lands; (2) 

manage habitat and promote 

conservation of the butterfly on nonFederal and other private lands through 

education and outreach; (3) conduct 

research to fill information gaps and 

inform continued management; and, (4) 

provide adequate regulatory protection. 

The Conservation Plan explains that 

long-term conservation of the species 

requires a thorough understanding of its 

life history and habitat requirements. 

Consequently, a step-down outline has 

been developed to guide research and 

monitoring to implement an adaptive 

management plan for the butterfly. The 

Conservation Plan describes in detail 

the process of adaptive management and 

assigns the responsibility to the 

cooperative team. We believe 

management of the butterfly will benefit 

from this process because the 

effectiveness of conservation measures 

will be monitored and adjustments will 

be made based on new information 

gained.

The Forest Service has been involved 

in a variety of projects that have 

implemented measures to conserve the 

species (Service 2004b). The 

Conservation Plan represents a 

continuation of this major commitment 

on behalf of this Federal land manager 

that accounts for approximately 50 

percent of the known range of the 

species. Biologists from the Lincoln 

National Forest’s Supervisor’s Office 

and the Sacramento Ranger District have 

been implementing conservation actions 

since 1997 and will continue to serve in 

that capacity for the Conservation Plan 

(Forest Service 2000c, Service 2004b). 

Under the Conservation Plan we expect 

that the Forest Service will continue to 

allocate resources towards conservation 

efforts and coordinate with all parties 

involved with the conservation of the 

butterfly. 

The Conservation Plan also commits 

Otero County and the Village of 

Cloudcroft to manage and promote 

conservation of the butterfly and its 

habitat on private lands (Service 2004b). 

As described above, Otero County 

initiated a process that will cause the 

County to begin amending its existing 

subdivision ordinance to provide 

conservation measures for the butterfly. 

In addition, the County has committed 

to promoting public support for 

butterfly conservation through 

development and distribution of 

informational and educational materials 

(Service 2004b). The Village of 

Cloudcroft is dedicated to public 

outreach and education programs to 

promote conservation of the butterfly. 

The Village will work with private 

landowners (in cooperation with the 

County) to educate landowners about 

butterfly conservation. This includes, 

but is not limited to, restoration of areas 

and planting butterfly food and larval 

host plants, and communication with 

landowners through the local 

newspaper and Village Council 

Workshops. 

The butterfly is currently a priority for 

the Service’s Partners for Fish and 

Wildlife Program. This program has 

been working with the Forest Service 

and non-Federal entities regarding 

conservation efforts related to the 

butterfly. For example, the Forest 

Service gathered New Mexico 

penstemon seeds from sites on the 

Lincoln National Forest, and the Service 

funded a project through the USDA’s 

Plant Materials Center, Los Lunas, New 

Mexico. This project grew 1,800 New 

Mexico penstemon, which will likely be 

planted at the Albuquerque Biological 

Park for educational and seed source 

purposes. 

All of the parties will assist each other 

to fill information gaps in the butterfly’s 

basic biology, habitat, distribution, and 

population biology. The Conservation 

Plan describes research needs that were 

developed and prioritized in order to 

maximize the utility of the information 

gained such that it can be directly 

applied to management and 

conservation of the species. For 

example, we anticipate that regular 

monitoring will continue to be 

conducted by the Forest Service and 

other parties to the Conservation Plan. 

This information will be utilized in an 

adaptive management process to adjust 

or increase conservation efforts to 

manage OHV impacts on the butterfly 

Federal Register / Vol. 69, No. 244 / Tuesday, December 21, 2004 / Proposed Rules 76445

and its habitat (Service 2004b). 

Additionally, we intend to coordinate 

the development and implementation of 

this and other projects through the 

Sacramento Mountains Checkerspot 

Butterfly Conservation Plan Interagency 

Coordinating Committee (ICC). The 

cooperators will establish an ICC (see 

Conservation Plan, Appendix A. Section 

V, Service 2004b). This Committee will 

monitor the implementation of the 

Conservation Plan, provide a forum for 

exchange of information on the species, 

will set annual priorities, seek funding 

sources, and provide feedback to the 

cooperators. This group will meet at 

least annually and likely more often in 

the first few years. 

We are confident in the interest and 

commitment of all parties to the 

Conservation Plan. We believe the 

implementation of conservation, 

management, and monitoring efforts 

will be beneficial for the butterfly. 

Authority 

The authority for this action is the 

Endangered Species Act of 1973 (16 

U.S.C. 1531 et seq.).

Dated: December 15, 2004. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks.

[FR Doc. 04–27841 Filed 12–20–04; 8:45 am] 

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