40132 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 

Date: August 5, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

[FR Doc. E9–19171 Filed 8–10–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2009–0041] [MO– 

922105 0083–B2] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition To List the Jemez Mountains 

Salamander (Plethodon 

neomexicanus) as Threatened or 

Endangered With Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90–day petition 

finding and initiation of a status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce a 

90–day finding on a petition to list the 

Jemez Mountains salamander 

(Plethodon neomexicanus) (salamander) 

as threatened or endangered and 

designate critical habitat under the 

Endangered Species Act of 1973, as 

amended. Following a review of the 

petition, we find that the petition 

provides substantial scientific or 

commercial information indicating that 

listing the Jemez Mountains salamander 

may be warranted. Therefore, with the 

publication of this notice, we are 

initiating a status review of the species 

to determine if the petitioned action is 

warranted. To ensure that the status 

review is comprehensive, we are 

soliciting scientific and commercial data 

and other information regarding this 

species. At the conclusion of this 

review, we will issue a 12–month 

finding to determine if the petitioned 

action is warranted. We will make a 

determination on critical habitat for this 

species if we initiate a listing action. 

DATES: We made the finding announced 

in this document on August 11, 2009. 

To allow us adequate time to conduct 

this review, we request that we receive 

information on or before October 13, 

2009. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Search for docket 

FWS–R2–ES–2009–0041 and then 

follow the instructions for submitting 

comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R2– 

ES–2009–0041; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Information Solicited section 

below for more details). 

FOR FURTHER INFORMATION CONTACT: 

Wally ‘‘J’’ Murphy, Field Supervisor, 

New Mexico Ecological Services Office, 

2105 Osuna NE, Albuquerque, NM 

87113, by telephone (505–346–2525) or 

by facsimile (505–346–2542). Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Solicited 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly commence a 

review of the status of the species. To 

ensure that the status review is 

complete and based on the best 

available scientific and commercial 

information, we are soliciting 

information on the status of the Jemez 

Mountains salamander. We request 

information from the public, other 

concerned governmental agencies, 

Native American Tribes, the scientific 

community, industry, or any other 

interested parties concerning the status 

of the salamander. We are seeking 

information regarding: 

(1) The historical and current status 

and distribution of the Jemez Mountains 

salamander, its biology and ecology, and 

ongoing conservation measures for the 

species and its habitat; 

(2) The species’ population size and 

population trend; 

(3) Its taxonomy; and 

(4) Information relevant to the factors 

that are the basis for making a listing 

determination for a species under 

section 4(a) of the Endangered Species 

Act of 1973, as amended (Act) (16 

U.S.C. 1531 et seq.), which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of the species’ habitat or 

range; 

(b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) Disease or predation; 

(d) The inadequacy of existing 

regulatory mechanisms; or 

(e) Other natural or manmade factors 

affecting its continued existence and 

threats to the species or its habitat. 

In this finding, we have identified 

gaps in the information provided in the 

petition to help to focus the public on 

areas where we would like relevant data 

submitted. If we determine that listing 

the Jemez Mountains salamander is 

warranted, we intend to propose critical 

habitat to the maximum extent prudent 

and determinable at the time we 

propose to list the species. Therefore, 

with regard to areas within the 

geographical range currently occupied 

by the salamander, we also request data 

and information on what may constitute 

physical or biological features essential 

to the conservation of the species, where 

these features are currently found, and 

whether any of these features may 

require special management 

considerations or protection. In 

addition, we request data and 

information regarding whether there are 

areas outside the geographical area 

occupied by the species that are 

essential to the conservation of the 

species. Please provide specific 

comments and information as to what, 

if any, critical habitat you think we 

should propose for designation if the 

species is proposed for listing, and why 

such habitat meets the requirements of 

the Act. 

We will base our 12–month finding 

on a review of the best scientific and 

commercial information available, 

including all information received 

during this public comment period. 

Please note that submissions merely 

stating support for or opposition to the 

action under consideration, without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is a threatened or endangered 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ Based on 

the status review, we will issue a 12– 

month finding on the petition, as 

provided in section 4(b)(3)(B) of the Act. 

You may submit your information 

concerning this finding by one of the 

methods listed in the ADDRESSES

section. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 


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guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. Please 

include sufficient information with your 

comments to allow us to verify any 

scientific or commercial information 

you include. 

Information and materials we receive, 

as well as supporting documentation we 

used in preparing this finding, will be 

available for public inspection on http:// 

www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, New Mexico Ecological 

Services Office (see FOR FURTHER

INFORMATION CONTACT). 

Background 

Section 4(b)(3)(A) of the Act requires 

that we make a finding on whether a 

petition to list, delist, or reclassify a 

species presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

We are to base this finding on 

information provided in the petition, 

supporting information submitted with 

the petition, and information otherwise 

available in our files. To the maximum 

extent practicable, we are to make this 

finding within 90 days of our receipt of 

the petition and publish our notice of 

this finding promptly in the Federal 

Register. 

Our standard for substantial 

information within the Code of Federal 

Regulations (CFR) with regard to a 90– 

day petition finding is ‘‘that amount of 

information that would lead a 

reasonable person to believe that the 

measure proposed in the petition may 

be warranted’’ (50 CFR 424.14(b)). If we 

find that the petition presented 

substantial information, we are required 

to promptly commence a review of the 

status of the species. 

On October 15, 2008, we received a 

petition dated October 9, 2008, from 

WildEarth Guardians requesting that the 

Jemez Mountains salamander be listed 

as threatened or endangered under the 

Act, and critical habitat be designated. 

The petition clearly identified itself as 

such, and included the requisite 

identification information for the 

petitioner, as required by 50 CFR 

424.14(a). In a November 26, 2008, letter 

to the petitioner, we responded that we 

had reviewed the petition and 

determined that an emergency listing 

was not necessary. We also stated that, 

to the maximum extent practicable, we 

would address their petition within 90 

days. 

Previous Federal Actions 

We initially considered the Jemez 

Mountains salamander for listing under 

the Act in the early 1980s (GAO August 

1993, p. 30). In December 1982, we 

published a notice of review classifying 

the salamander as a Category 2 species 

(47 FR 58454, December 30, 1982). 

Category 2 status included those taxa for 

which information in the Service’s 

possession indicated that a proposed 

listing rule was possibly appropriate, 

but for which sufficient data on 

biological vulnerability and threats were 

not available to support a proposed rule. 

On February 21, 1990, we received a 

petition to list the salamander as 

threatened. Subsequently, we published 

a positive 90–day finding, indicating 

that the petition contained sufficient 

information to suggest that listing may 

be warranted (55 FR 38342, September 

18, 1990). In the candidate notice of 

review (CNOR) published on November 

21, 1991, we announced the salamander 

as a Category 1 species with a 

‘‘declining’’ status (56 FR 58814). 

Category 1 status included those species 

for which the Service had on file 

substantial information regarding the 

species’ biological vulnerability and 

threat(s) to support proposals to list 

them as endangered or threatened 

species. The ‘‘declining’’ status 

indicated decreasing numbers and/or 

increasing threats. 

On May 30, 1991, the Service, the 

USDA Forest Service (Forest Service), 

and the New Mexico Department of 

Game and Fish (NMDGF) signed a 

Memorandum of Agreement (MOA) 

outlining actions to be taken to protect 

the salamander and its habitat on Forest 

Service lands, including the formation 

of a team of agency biologists to 

immediately implement the MOA and 

to develop a management plan for the 

species. The management plan was to be 

incorporated into the Santa Fe National 

Forest Plan. On April 3, 1992, we 

published a 12–month finding that 

listing the salamander was not 

warranted because of the conservation 

measures and commitments within the 

MOA (59 FR 11469). In the November 

15, 1994, CNOR, we included the 

salamander as a Category 2 species, with 

a trend status of ‘‘improving’’ (59 FR 

58982). A status of ‘‘improving’’ 

indicated those species known to be 

increasing in numbers and/or whose 

threats to their continued existence 

were lessening in the wild. 

In the CNOR published on February 

28, 1996, we announced a revised list of 

animal and plant taxa that were 

regarded as candidates for possible 

addition to the Lists of Endangered and 

Threatened Wildlife and Plants (61 FR 

7596). The revised candidate list 

included only former Category 1 

species. All former Category 2 species 

were dropped from the list in order to 

reduce confusion about the conservation 

status of these species, and to clarify 

that the Service no longer regarded 

these species as candidates for listing. 

Because the salamander was a Category 

2 species, it was no longer recognized as 

a candidate species as of the February 

28, 1996, CNOR. 

In January 2000, the New Mexico 

Endemic Salamander Team (NMEST), a 

group of interagency biologists 

representing NMDGF, the Service, the 

U.S. Geological Survey, and the Forest 

Service, finalized a Cooperative 

Management Plan for the salamander on 

lands administered by the Forest 

Service (Management Plan), and the 

agencies signed an updated 

Conservation Agreement that 

superseded the MOA. The stated 

purpose of the Conservation Agreement 

and the Management Plan was to 

provide for the long-term conservation 

of salamanders by reducing or removing 

threats to the species and by proactively 

managing their habitat (NMEST 2000 

Conservation Agreement, p. 1). 

In a Decision Notice and Finding of 

No Significant Impact for the Forest 

Plan Amendment for Managing Special 

Status Species Habitat, signed on 

December 8, 2004, the Management Plan 

was incorporated into the Santa Fe 

National Forest Plan. 

Species Information 

The Jemez Mountains salamander is a 

member of the family of lungless 

salamanders (Plethodontidae), the 

largest family of salamanders. The 

salamander is uniformly dark brown 

above, with occasional fine gold/brassy 

stippling dorsally (on the back and 

sides) and is sooty gray ventrally 

(underside). The body form is slender 

and elongate. The salamander possesses 

foot webbing and a reduced fifth toe. 

The salamander was originally reported 

as Spelerpes multiplicatus (=Eurycea 

multiplicata) in 1913 (Degenhardt et al. 

1996, p. 27); however, it was described 

as a new and distinct species (Plethodon 

neomexicanus) in 1950 (Stebbins and 

Riemer, pp. 73-80). 

Two species of plethodontid 

salamanders occur in New Mexico: The 

Jemez Mountains salamander and the 

Sacramento Mountains salamander 

(Aneides hardii). Molecular studies on 

plethodontid salamanders in North 

America indicate that western species of 

the genus Plethodon (the woodland 

salamanders) may be more closely 

related to species of the genus Aneides 

(the climbing salamanders) than to 

eastern species of Plethodon (Larson et 

al., 1981, p. 419; Mahoney 2001, p. 174). 

The relationship of the Jemez 


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Mountains salamander to other western 

plethodontids is not completely 

understood, but the salamander is 

considered basal (the earliest grouping 

that branches to larger groupings of 

relative relatedness) (Mahoney 2001, p. 

184). No subspecies of the salamander 

are recognized. 

The Jemez Mountains salamander is 

strictly terrestrial, does not possess 

lungs, and does not require standing 

surface water for any life stage. 

Respiration occurs through the skin and 

requires a moist microclimate for gas 

exchange. Reproduction in the wild 

remains unobserved, but it is presumed 

that the salamander lays eggs in spaces 

underground. Fully-formed salamanders 

hatch from the eggs. Based on 

examination of 57 female salamanders, 

Williams (1978, p. 475) concluded that 

females likely lay 7 or 8 eggs every other 

year, either in mid-August or, more 

likely, the spring after mating occurs in 

late July and August. Sexual maturity is 

reached at 3 to 4 years in females and 

3 years in males (Degenhardt et al. 1996, 

p. 28). 

The salamander occurs in the Jemez 

Mountains in northern New Mexico in 

Los Alamos, Rio Arriba, and Sandoval 

Counties. The species predominantly 

occurs in mixed-conifer forest at an 

elevation between 2,200 and 2,900 

meters (7,220 and 9,510 feet), consisting 

mainly of Douglas fir (Pseudotsuga 

menziesii), blue spruce (Picea pungens), 

Engelman spruce (Picea engelmannii), 

white fir (Abies concolor), limber pine 

(Pinus flexilis), and aspen (Populus 

tremuloides) (Degenhardt et al. 1996, p. 

28), but occasionally can be found in 

Ponderosa pine (Pinus ponderosa) 

stands. The microhabitat is 

characterized by deep, igneous, 

subsurface rock with high soil moisture 

(NMEST 2000, p. 2). The salamander 

spends much of its life underground, 

and can be found at the surface when 

conditions are warm and wet, which is 

typically July through September, but 

the period may extend from May 

through October depending on 

conditions. When surface-active, the 

species is usually found under rocks, 

bark, logs, moss mats, or inside 

decomposing logs. The species is 

restricted to the moist habitats of the 

Jemez Mountains. 

A feeding habits study for the Jemez 

Mountains salamander was conducted 

by NMDGF in 1992. Salamander prey 

items were diverse in size and type; 

however, there were three categories of 

prey that were recognized as more 

important than the remaining groups: 

ants, mites, and beetles (Cummer 2005, 

p. 43). Cummer (2005, pp. 45–50) stated 

that prey specialization on any 

particular species of invertebrate was 

unlikely in the salamander; however, 

she did observe that selection of food 

appeared to not be random. 

Although the petitioner believes that 

the number of salamanders likely 

exceeds 10,000, we are not aware of any 

current information from which a 

population estimate can be made. The 

petitioner’s population estimate was 

derived from survey efforts conducted 

from 1967 through 2003; however, the 

petitioner acknowledges, and we agree, 

that these surveys are potentially 

unreliable because salamander 

observations are dependent on multiple 

factors, such as environmental 

conditions (e.g., temperature or 

moisture), detection probabilities, and 

time when the observations were made. 

Because of these variables, it is difficult 

to determine population size or trends. 

Based upon the information presented 

in the petition and in our files, we 

believe that a comprehensive 

assessment of all of the survey and 

population information is needed. 

Five-Factor Evaluation 

Section 4 of the Act (16 U.S.C. 1533), 

and implementing regulations at 50 CFR 

424, set forth the procedures for adding 

species to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants. 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: (A) The present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. 

In making this 90–day finding, we 

evaluated whether information 

regarding threats to the salamander, as 

presented in the petition and other 

information available in our files, is 

substantial, thereby indicating that the 

petitioned action may be warranted. Our 

evaluation of this information is 

presented below. 

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of the Species’ Habitat or 

Range 

Information Provided in the Petition 

The petitioner asserts that the Jemez 

Mountains salamander or its habitat is 

threatened by the following conditions 

or actions: habitat loss and 

fragmentation, climate change, standreplacing fires, fire suppression and 

rehabilitation, salvage logging, slash 

removal, forest thinning treatment 

projects, use and construction of roads 

and dams, chemical use, trail 

construction, and mining. We will 

address climate change and chemical 

use under Factor E. 

The petitioner contends that the main 

threat and cause of Jemez Mountains 

salamander habitat loss is extensive, 

stand-replacing fires (severe fires in 

which most mature trees are destroyed). 

The petitioner reports on land area 

burned during the Dome (1996), Cerro 

Grande (2000), and BMG/Lakes (2002) 

wildfires. Information in our files 

indicates that these stand-replacing fires 

overlapped with salamander habitat; 

however the petition did not contain, 

nor we do have, a complete analysis of 

the extent or degree of salamander 

habitat that burned. The NMEST (2000, 

p. 9) stated that, ‘‘the greatest threat to 

this species is thought to be the 

potential for extensive stand-replacing 

fires.’’ The petitioner contends that 

there were negative effects to the 

salamander and its habitat from the 

Cerro Grande Fire, such as removal of 

canopy cover and increased soil 

temperatures (WildEarth Guardians 

2008, pp. 23–24). Cummer and Painter 

(2007, p. 26) reported significant 

changes in microhabitat temperatures 

following the Cerro Grande Fire. The 

petitioner asserts that impacts on the 

salamander and its habitat from other 

stand-replacing wildfires (e.g. Dome 

Fire, BMG/Lakes Fires) was likely the 

same as effects from the Cerro Grande 

fire. We agree; however, we are not 

aware of an analysis that estimates the 

amount of salamander habitat affected 

by other wildfires. Finally, our files 

indicate that future stand-replacing 

wildfires in salamander habitat remain 

a threat. 

The petitioner also claims that the 

effects of fire suppression and 

rehabilitation activities following 

wildfire threaten the Jemez Mountains 

salamander. For example, the petitioner 

indicates that, during the Cerro Grande 

Fire, suppression activities included the 

construction of 26 kilometers (km) (16 

miles (mi)) of hand line (hand-dug 

trenches 1.5 to 3 meters (m) (5 to 10 feet 

(ft)) wide from which all combustible 

material was removed), 63 km (39 mi) 

of bulldozer line (larger fire breaks with 

vegetation removed by bulldozing), and 

safety zones; release of 514,000 liters 

(135,800 gallons) of fire retardant; and 

53 km (32 mi) of road improvement 

resulting in vegetation removal within 

30 m (100 ft) of either side of the roads 

(WildEarth Guardians 2008, p. 26). 

However, while information in our files 


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indicates that some of these activities 

occurred in salamander habitat and 

corroborate some of the claims of the 

petitioner on fire suppression and 

rehabilitation, the petitioner does not 

provide, nor are we aware of, a complete 

assessment of the extent of these 

activities in salamander habitat. Please 

note that chemical use resulting from 

fire suppression activities is addressed 

separately in Factor E. 

The petitioner describes how 

historical grazing and fire suppression 

have contributed to changes in forest 

structure and composition in the Jemez 

Mountains. Scientific literature (e.g., 

Allen 1989; Touchan et al. 1996) 

supports this conclusion; however, we 

are not aware of an assessment of how 

such changes may affect the salamander 

or its habitat. 

The petitioner believes that salvage 

logging after wildfire and associated 

thinning with removal of snags and 

slash in Jemez Mountains salamander 

habitat has had negative impacts to 

salamanders and their habitat. Logging 

can interrupt the development of 

salamander habitat by removing the 

requisite habitat components of canopy 

cover and dead and downed logs, while 

increasing temperature, erosion, runoff, 

and soil compaction (NMEST 2000, p. 

5). Additionally, if these activities occur 

when salamanders are surface active, 

salvage logging could result in direct 

injury or mortality to individuals. The 

petitioner identifies that salvage logging 

and forest thinning have been proposed 

within salamander habitat, but we have 

no estimate on the amount of 

salamander habitat that has been 

impacted by these activities. 

Nevertheless, we found substantial 

information indicating that the Forest 

Service has conducted, and will likely 

continue to conduct, salvage logging in 

salamander habitat. 

The petitioner asserts that habitat 

alteration due to road and trail building 

in salamander habitat has deleterious 

effects to the Jemez Mountains 

salamander and its habitat. The 

petitioner believes that construction of 

roads and trails fragments habitat, and 

high vehicular traffic or heavy 

equipment could cause excessive 

vibration resulting in settling of the 

subsurface rock and elimination of the 

underground spaces, presumed 

necessary as subterranean habitat. The 

petitioner provides information on the 

length of roads that were re-opened 

during and subsequent to wildfire. 

These roads likely affected the 

salamander and its habitat through 

vegetation removal, soil compaction, 

and the elimination of subsurface 

spaces. Roads are known to fragment 

terrestrial salamander habitat and act as 

partial barriers to movement 

(deMaynadier and Hunter 2000, p. 56; 

Marsh et al. 2005, p. 2004). Moreover, 

roads can reduce the quality of adjacent 

habitat by increasing light and wind 

penetration, exposure to pollutants, and 

the spread of invasive species (Marsh et 

al. 2005, pp. 2004–2005). Although the 

petitioner does not quantify the amount 

of salamander habitat impacted by 

roads, information in our files supports 

the claim that roads may have led, and 

may continue to contribute in the 

future, to the degradation of salamander 

habitat. 

The petitioner asserts that the 

improvement and realignment of New 

Mexico State Highway 126 (also called 

Forest Highway 12) has threatened, and 

will continue to threaten, the Jemez 

Mountains salamander. Information 

concerning the project provided by the 

petitioner was found to be reliable. For 

example, our files indicate that portions 

of the Highway 126 project resulted in 

the removal of salamander habitat as 

well as the destruction of individual 

salamanders and fragmentation of a 

relatively isolated population of 

salamanders. 

The petitioner also notes that 

construction and maintenance of log 

skidder trails, while not likely to be as 

destructive as road construction and 

maintenance, still has similar effects on 

the Jemez Mountains salamander. The 

petitioner believes that trail 

construction and salvage logging 

operations are a threat to the 

salamander. The petitioner correctly 

indicates that approximately 4 km (2.5 

mi) of trail were constructed by 

bulldozer in occupied salamander 

habitat. 

The petitioner asserts that one of the 

common techniques used to survey for 

the presence or absence of the 

salamander destroys habitat because it 

involves destructive sampling by 

rearranging cover objects such as rocks 

and logs as well as tearing apart decayed 

logs. We have no information regarding 

the effects to salamander habitat from 

survey techniques (NMEST 2000, pp. 

27–36); however, we will examine this 

claim more closely in our status review, 

and we request any additional 

information the public may have on this 

potential threat. 

The petitioner asserts that the 

construction of dams and mining 

modify Jemez Mountains salamander 

habitat. Information in our files 

supports the claim that dams or water 

retention structures may have been 

constructed in salamander habitat. 

Specifically, the petitioner contends 

that an extension of the El Cajete Mine 

in the Jemez Mountains affects the 

salamander. Our files indicate that the 

Forest Service determined that the mine 

would not impact the salamander 

because the project was not located on 

northerly or moist slopes greater than 35 

to 40 percent that support mature or old 

growth mixed conifer (Forest Service 

1995a, pp. 12–13; Forest Service 1995b, 

p. 2). At the time of the project, steep 

slopes (greater than 30 percent) were 

thought to be a critical element of 

salamander habitat (Ramotnik 1988, p. 

50). However, salamanders have been 

documented in areas of no significant 

slope (less than 5 percent) (NMDGF 

2000, p. 8), and steep slopes are no 

longer considered a requirement of 

occupied habitat. Based on this more 

recent information, this project may 

have affected the salamander and its 

habitat, and there is potential for future 

mining activities to affect the 

salamander and its habitat. We find that 

the petition and information in our files 

indicate that construction of dams and 

future mining activities may result in 

adverse modifications to salamander 

habitat. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

The petitioner provides substantial 

and reliable information that the 

salamander and its habitat may be 

threatened from stand-replacing fires; 

salvage logging; fire suppression; 

construction, maintenance, and use of 

roads and trails; construction of dams; 

and mining activities. The information 

presented in the petition is supported 

by information in our files, and presents 

substantial information indicating that 

the petitioned action may be warranted 

due to the present or threatened 

destruction, modification, or 

curtailment of the habitat or range of the 

salamander. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

Information Provided in the Petition 

The petitioner asserts that the 

salamander is threatened by loss of 

individuals through collection of 

specimens and surveying. The petition 

cites a report by the NMEST (2000) that 

summarizes the history of collection of 

the species. According to the petition, 

977 Jemez Mountains salamanders were 

collected for scientific purposes from 

1910 to 1999. The petitioner cites the 

report (NMEST 2000) in concluding that 

such collecting has likely reduced 

populations in localized areas. The 

petitioner also cites the report (NMEST 


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2000) in asserting that a 2 person-hour 

survey protocol was developed to search 

for Jemez Mountains salamanders. 

Following this protocol, likely cover 

objects (rocks, bark, and decayed logs) 

are searched for salamanders (NMEST 

2000). The petition cites a NMDGF 

(2000) report in claiming that this 

technique can destroy habitat and that 

continual searches in the same habitat 

have been shown to result in a decrease 

in salamander populations. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

We find that the petition presents 

substantial information indicating that 

the petitioned action may be warranted 

due to overutilization for scientific 

purposes. 

C. Disease or Predation 

Information Provided in the Petition 

The petitioner states that disease is 

affecting the salamander. Information in 

our files indicates that the amphibian 

pathogenic fungus, Batrachochytrium 

dendrobatidis (Bd), was found in one 

salamander in 2003 (Cummer et al. 

2005, p. 248). The individual 

salamander was collected and sent to 

the U.S. Geological Survey National 

Wildlife Health Center in Madison, 

Wisconsin, for diagnostic analysis. 

Results from the analysis included a 

dual infection of Bd and a bacterial 

species (Cladosporium spp). The 

virulence of Bd relative to the Jemez 

Mountains salamander remains 

unknown. However, because in 

formation in our files indicates that Bd 

can be highly infectious and lethal in 

other species of amphibians, we believe 

there is substantial information that the 

petitioned action may be warranted due 

to the threat of disease. 

The petitioner provides no 

information addressing predation. 

Cummer (2005, p. 30) speculated that 

predation could increase subsequent to 

stand-replacing wildfire because of lack 

of sufficient cover objects while 

salamanders are surface active; 

however, we are not aware of any 

information to support this. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

Because of the presence of Bd in the 

Jemez Mountains salamander’s range 

and the deleterious effect of Bd on other 

species of amphibians, we believe the 

threat of disease to the Jemez Mountains 

salamander may be substantial. On the 

other hand, neither the information in 

our files nor that presented by the 

petitioner is substantial to suggest that 

predation on the salamander is a 

significant threat to the species. In 

summary, we have information in our 

files indicating that the petitioned 

action may be warranted due to disease, 

but not due to predation. 

D. The Inadequacy of Existing 

Regulatory Mechanisms 

Information Provided in the Petition 

The petitioner asserts that the 

salamander is threatened by inadequacy 

of existing regulatory mechanisms. The 

petitioner states that the regulatory 

mechanisms in place—the 2000 

Conservation Agreement, the 

Management Plan, the Forest Plan and 

its amendments, and State law—are 

ineffective and unenforceable. The 

Management Plan was prepared by 

NMEST biologists ‘‘to provide guidance 

for the conservation and management of 

sufficient habitat to maintain viable 

populations of the species’’ (NMEST 

2000, p. i.). Known and potential threats 

to the species were identified and 

detailed; management areas based on 

habitat zones were identified; potential 

management actions in salamander 

habitat and their potential impacts were 

identified; and guidelines were set forth 

pertaining to certain management 

actions relative to habitat categories 

(NMEST 2000, pp. 4–22). The intent of 

the Conservation Agreement, the 

Management Plan, and amendment of 

the Forest Plan was to protect the Jemez 

Mountains salamander and its habitat 

on lands administered by the Forest 

Service. However, the petitioner 

identifies multiple projects, both on and 

off Forest Service lands, that were 

counter to guidelines set forth in the 

Management Plan and 

recommendations by the NMEST 

(WildEarth Guardians 2008, pp. 28–54). 

The petitioner provides examples of 

projects that they claim demonstrate the 

inadequacy of existing regulatory 

mechanisms and ongoing threats to the 

Jemez Mountains salamander and its 

habitat. Examples provided by the 

petitioner include actions following the 

1996 Dome Fire, the 2000 Cerro Grande 

Fire, and the 2003 BMG/Lakes Fires; 

actions relative to the Valles II project 

(forest thinning and fuel reduction 

activities in areas adjacent to residential 

development); the Highway 126 project; 

dams at Los Alamos National 

Laboratory; and the El Cajete mine 

extension (WildEarth Guardians 2008, 

pp. 28–54). Our files support the claim 

that the Cooperative Agreement, 

Management Plan, and Federal or State 

laws have been ineffective at preventing 

actions that may threaten the 

salamander and its habitat. 

The petitioner acknowledges that 

because the Jemez Mountains 

salamander was uplisted in New Mexico 

in 2005 from State threatened to 

endangered (NMDGF 2005, p. 2), it 

gained the protection of the Wildlife 

Conservation Act. The Wildlife 

Conservation Act prohibits direct take of 

the species except under issuance of a 

scientific collecting permit. However, 

this law only conveys protection from 

collection or intentional harm; no New 

Mexico State statutes address habitat 

protection, indirect effects, or other 

threats to the species identified by the 

State as endangered. NMDGF has the 

authority to consider and recommend 

actions to mitigate potential adverse 

effects to the salamander during its 

review of development proposals. The 

petitioner pointed out that the New 

Mexico State Game Commission, a part 

of the NMDGF, received financial 

reimbursement and provided easements 

for construction of the Highway 126 

project (New Mexico Game 

Commission, 2006, p. 13). We could not 

find that any measures were 

incorporated to limit impacts to the 

salamander or its habitat (New Mexico 

Game Commission, 2006, pp. 12–13). 

Information in our files indicates that 

the Highway 126 project directly 

impacted salamanders and destroyed 

habitat. 

Additionally, the petitioner asserts 

that threats to the species are not 

addressed on lands where the 

salamander occurs outside of the Santa 

Fe National Forest. Populations of 

salamanders have been observed on 

Tribal lands, Los Alamos National 

Laboratory lands, the Valles Caldera 

National Preserve, and private lands. 

Information in our files demonstrates 

that outside of State protection from 

collection and intentional harm, there 

are no State or Federal regulations 

providing specific protections for the 

salamander or its habitat beyond those 

populations within the Santa Fe 

National Forest. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

The information provided by the 

petitioner was found reliable and was 

corroborated by information in our files. 

Consequently, we find that the petition 

contains substantial information that 

listing the salamander due to the 

inadequacy of existing regulatory 

mechanisms may be warranted. 


srobinson on DSKHWCL6B1PROD with PROPOSALS
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 40137 

E. Other Natural or Manmade Factors 

Affecting the Species’ Continued 

Existence 

Information Provided in the Petition 

The petitioner asserts that fire 

suppression, chemical use, and climate 

change threaten the salamander. Fire 

suppression is addressed under Factor 

A. Chemical use in salamander habitat 

includes fire suppression retardant and 

insecticides to prevent tree loss. 

Although information in our files 

indicates that fire retardant has been 

used in salamander habitat, it is 

unknown how much salamander habitat 

has been affected. Prior to 2006 (71 FR 

42798, July 28, 2006) fire retardant used 

by the Forest Service contained sodium 

ferrocyanide, which is highly toxic to 

fish and amphibians (Pilliod et al. 2003, 

p. 175). Because the salamander 

breathes and carries out physiological 

functions through its skin, chemicals 

that are toxic to fish and other 

amphibians may have had negative 

effects to the salamander. It is unclear 

whether the chemicals used in current 

fire retardants or insecticides affect the 

salamander. Thus, the information 

provided by the petition and in our files 

is not substantial to indicate adverse 

effects of fire retardant or insecticides 

on the salamander or its habitat. 

The petitioner asserts that climate 

change is likely an increasing threat to 

the salamander due to overall habitat 

drying and the species’ requirement of 

moist microhabitats. In addition, the 

petitioner states that warmer springs 

and summers, earlier snowmelt, and 

increased forest fire severity, frequency, 

and duration will likely impact the 

salamander. The petitioner provides 

citations on climate change (Wildearth 

Guardians 2008, p. 55) and references 

Enquist and Gori (2008) to provide 

information regarding climate change in 

the Jemez Mountains. Enquist and Gori 

(2008, p. iii) report the Jemez Mountains 

as one of three areas in New Mexico that 

may be most vulnerable to climate 

change, in part, due to warmer-drier 

conditions or greater vulnerability in 

temperature and precipitation. The 

petitioner contends that the identified 

threats are exacerbated by the 

salamander’s restricted distribution. 

Evaluation of Information Provided in 

the Petition and Available in Service 

Files 

In general, the information currently 

available on the effects of climate 

change does not make sufficiently 

precise estimates of the location and 

magnitude of the effects in order to 

predict impacts to specific wildlife. 

However, given a specific prediction in 

scientific literature of warmer and drier 

conditions for the Jemez Mountains, and 

that such change would likely have a 

negative impact on the salamander, 

which requires moist microclimates, we 

find that the petitioned action may be 

warranted due to climate change. 

Regarding the potential threat of 

chemical use, even though fire 

retardants and insecticides are currently 

being used, we did not find any 

substantial information that chemical 

use is actually affecting the salamander. 

We will investigate this potential threat 

further in our status review, and request 

any additional information the public 

may have on this potential threat. 

We reviewed the petition and readily 

available supporting information and 

find that the petition presents 

substantial information for this factor 

under the threat of climate change, but 

not under the threat of chemical use. 

Finding 

Section 4(b)(3)(A) of the Act requires 

that we make a finding on whether a 

petition to list, delist, or reclassify a 

species presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

We are to base this finding on 

information provided in the petition, 

supporting information submitted with 

the petition, and information otherwise 

available in our files. To the maximum 

extent practicable, we are to make this 

finding within 90 days of our receipt of 

the petition and publish our notice of 

the finding promptly in the Federal 

Register. 

Our process for making this 90–day 

finding under section 4(b)(3)(A) of the 

Act is limited to a determination of 

whether the information in the petition 

presents ‘‘substantial scientific and 

commercial information,’’ which is 

interpreted in our regulations as ‘‘that 

amount of information that would lead 

a reasonable person to believe that the 

measure proposed in the petition may 

be warranted’’ (50 CFR 424.14(b)). We 

have reviewed the petition and the 

literature cited in the petition, and 

evaluated the information to determine 

whether the sources cited support the 

petitioned actions. We also reviewed 

reliable information that was readily 

available in our files to clarify and 

verify information in the petition. Based 

on our evaluation of the information 

provided in the petition, we find that 

the petition presents substantial 

scientific or commercial information 

indicating that listing the Jemez 

Mountains salamander may be 

warranted. The petitioner presents 

substantial information indicating that 

the salamander may be threatened by 

Factor A (the present or threatened 

destruction, modification, or 

curtailment of its habitat or range), 

Factor C (disease), Factor D (inadequacy 

of existing regulatory mechanisms), and 

Factor E (other natural or manmade 

factors affecting its continued existence) 

throughout the entire range of the Jemez 

Mountains salamander. The petitioner 

does not present substantial information 

that Factor B (overutilization for 

commercial, recreational, scientific, or 

educational purposes) is currently, or in 

the future may be, considered a threat 

to the salamander. 

Based on this review and evaluation, 

we find that the petition has presented 

substantial scientific or commercial 

information that listing the salamander 

throughout all or a portion of its range 

may be warranted due to current and 

future threats under Factors A, C, D, and 

E. Therefore, we are initiating a status 

review to determine whether listing the 

Jemez Mountains salamander under the 

Act is warranted. We will issue a 12– 

month finding as to whether any of the 

petitioned actions are warranted. To 

ensure that the status review is 

comprehensive, we are soliciting 

scientific and commercial information 

regarding the salamander. 

The ‘‘substantial information’’ 

standard for a 90–day finding is in 

contrast to the Act’s ‘‘best scientific and 

commercial data’’ standard that applies 

to a 12–month finding to determine 

whether a petitioned action is 

warranted. A 90–day finding is not a 

status assessment of the species and 

does not constitute a status review 

under the Act. Our final determination 

of whether a petitioned action is 

warranted is not made until we have 

completed a thorough status review of 

the species, as part of the 12–month 

finding on a petition, which is 

conducted following a positive 90–day 

finding. Because the Act’s standards for 

90–day and 12–month findings are 

different, as described above, a positive 

90–day finding does not mean that the 

12–month finding also will be positive. 

We encourage interested parties to 

continue gathering data that will assist 

with the conservation and monitoring of 

the salamander. The petitioner requests 

that critical habitat be designated for 

this species. If we determine in our 12– 

month finding that listing the 

salamander is warranted, we will 

address the designation of critical 

habitat at the time of the proposed 

rulemaking. 

References Cited 

A complete list of all references cited 

in this finding is available upon request 

from the New Mexico Ecological 


srobinson on DSKHWCL6B1PROD with PROPOSALS
40138 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Proposed Rules 

Services Office (see FOR FURTHER

INFORMATION CONTACT). 

Author 

The primary authors of this rule are 

the staff members of the New Mexico 

Ecological Services Office (see FOR

FURTHER INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: July 31, 2009. 

James J. Slack, 

Acting Deputy Director, Fish and Wildlife 

Service. 

[FR Doc. E9–19024 Filed 8–10– 09; 8:45 am] 

BILLING CODE 4310–55–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 20 

[FWS–R9–MB–2008–0124; 91200–1231– 

9BPP–L2] 

RIN 1018–AW31 

Migratory Bird Hunting; Proposed 

Migratory Bird Hunting Regulations on 

Certain Federal Indian Reservations 

and Ceded Lands for the 2009–10 

Season 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Fish and Wildlife 

Service (hereinafter, Service or we) 

proposes special migratory bird hunting 

regulations for certain Tribes on Federal 

Indian reservations, off-reservation trust 

lands, and ceded lands for the 2009–10 

migratory bird hunting season. 

DATES: We will accept all comments on 

the proposed regulations that are 

postmarked or received in our office by 

August 21, 2009. 

ADDRESSES: You may submit comments 

on the proposals by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: 1018– 

AW31, Division of Policy and Directives 

Management, U.S. Fish and Wildlife 

Service, 4401 N. Fairfax Drive, Suite 

222, Arlington, VA 22203. 

We will not accept e-mail or faxes. We 

will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Ron 

W. Kokel, Division of Migratory Bird 

Management, U.S. Fish and Wildlife 

Service, (703) 358–1714. 

SUPPLEMENTARY INFORMATION: In the 

April 10, 2009, Federal Register (74 FR 

16339), we requested proposals from 

Indian Tribes wishing to establish 

special migratory bird hunting 

regulations for the 2009–10 hunting 

season, under the guidelines described 

in the June 4, 1985, Federal Register (50 

FR 23467). In this supplemental 

proposed rule, we propose special 

migratory bird hunting regulations for 

29 Indian Tribes, based on the input we 

received in response to the April 10, 

2009, proposed rule. As described in 

that proposed rule, the promulgation of 

annual migratory bird hunting 

regulations involves a series of 

rulemaking actions each year. This 

proposed rule is part of that series. 

We developed the guidelines for 

establishing special migratory bird 

hunting regulations for Indian Tribes in 

response to Tribal requests for 

recognition of their reserved hunting 

rights and, for some Tribes, recognition 

of their authority to regulate hunting by 

both Tribal and nontribal hunters on 

their reservations. The guidelines 

include possibilities for: 

(1) On-reservation hunting by both 

Tribal and nontribal hunters, with 

hunting by nontribal hunters on some 

reservations to take place within Federal 

frameworks but on dates different from 

those selected by the surrounding 

State(s); 

(2) On-reservation hunting by Tribal 

members only, outside of the usual 

Federal frameworks for season dates and 

length, and for daily bag and possession 

limits; and 

(3) Off-reservation hunting by Tribal 

members on ceded lands, outside of 

usual framework dates and season 

length, with some added flexibility in 

daily bag and possession limits. 

In all cases, the regulations 

established under the guidelines must 

be consistent with the March 10 to 

September 1 closed season mandated by 

the 1916 Convention between the 

United States and Great Britain (for 

Canada) for the Protection of Migratory 

Birds (Treaty). The guidelines apply to 

those Tribes having recognized reserved 

hunting rights on Federal Indian 

reservations (including off-reservation 

trust lands) and on ceded lands. They 

also apply to establishing migratory bird 

hunting regulations for nontribal 

hunters on all lands within the exterior 

boundaries of reservations where Tribes 

have full wildlife management authority 

over such hunting or where the Tribes 

and affected States otherwise have 

reached agreement over hunting by 

nontribal hunters on lands owned by 

non-Indians within the reservation. 

Tribes usually have the authority to 

regulate migratory bird hunting by 

nonmembers on Indian-owned 

reservation lands, subject to Service 

approval. The question of jurisdiction is 

more complex on reservations that 

include lands owned by non-Indians, 

especially when the surrounding States 

have established or intend to establish 

regulations governing hunting by nonIndians on these lands. In such cases, 

we encourage the Tribes and States to 

reach agreement on regulations that 

would apply throughout the 

reservations. When appropriate, we will 

consult with a Tribe and State with the 

aim of facilitating an accord. We also 

will consult jointly with Tribal and 

State officials in the affected States 

where Tribes wish to establish special 

hunting regulations for Tribal members 

on ceded lands. Because of past 

questions regarding interpretation of 

what events trigger the consultation 

process, as well as who initiates it, we 

provide the following clarification. We 

routinely provide copies of Federal 

Register publications pertaining to 

migratory bird management to all State 

Directors, Tribes, and other interested 

parties. It is the responsibility of the 

States, Tribes, and others to notify us of 

any concern regarding any feature(s) of 

any regulations. When we receive such 

notification, we will initiate 

consultation. 

Our guidelines provide for the 

continued harvest of waterfowl and 

other migratory game birds by Tribal 

members on reservations where such 

harvest has been a customary practice. 

We do not oppose this harvest, provided 

it does not take place during the closed 

season defined by the Treaty, and does 

not adversely affect the status of the 

migratory bird resource. Before 

developing the guidelines, we reviewed 

available information on the current 

status of migratory bird populations, 

reviewed the current status of migratory 

bird hunting on Federal Indian 

reservations, and evaluated the potential 

impact of such guidelines on migratory 

birds. We concluded that the impact of 

migratory bird harvest by Tribal 

members hunting on their reservations 

is minimal. 

One area of interest in Indian 

migratory bird hunting regulations 

relates to hunting seasons for nontribal 

hunters on dates that are within Federal 

frameworks, but which are different 

from those established by the State(s) 


srobinson on DSKHWCL6B1PROD with PROPOSALS