45396 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Proposed Rules 

PART 8—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

2. Add section 8.406–8 to read as 

follows: 

8.406–8 Reporting. 

An ordering activity contracting 

officer, in accordance with agency 

procedures, shall ensure that 

information related to termination for 

cause notices and any amendments are 

included in PPIRS in accordance with 

42.1503(f). In the event the termination 

for cause is subsequently converted to a 

termination for convenience, or is 

otherwise withdrawn, the contracting 

officer shall ensure that a notice of the 

conversion or withdrawal is included in 

PPIRS. 

PART 12—ACQUISITION OF 

COMMERCIAL ITEMS 

3. Amend section 12.403 by adding 

paragraph (c)(4) to read as follows: 

12.403 Termination. 

* * * * * 

(c) * * * 

(4) The contracting officer, in 

accordance with agency procedures, 

shall ensure that information related to 

termination for cause notices and any 

amendments are included in PPIRS in 

accordance with 42.1503(f). In the event 

the termination for cause is 

subsequently converted to a termination 

for convenience, or is otherwise 

withdrawn, the contracting officer shall 

ensure that a notice of the conversion or 

withdrawal is included in PPIRS. 

* * * * * 

PART 15—CONTRACTING BY 

NEGOTIATION 

4. Amend section 15.407–1 by adding 

a new sentence to the end of paragraph 

(d) to read as follows: 

15.407–1 Defective cost or pricing data. 

* * * * * 

(d) * * * When the contracting officer 

determines that the contractor 

submitted defective cost or pricing data, 

the contracting officer, in accordance 

with agency procedures, shall ensure 

that information relating to the 

determination is provided for inclusion 

in PPIRS in accordance with 42.1503(f). 

* * * * * 

PART 42—CONTRACT 

ADMINISTRATION AND AUDIT 

SERVICES 

5. Amend section 42.1502 by adding 

paragraph (i) to read as follows: 

42.1502 Policy. 

* * * * * 

(i) Agencies shall promptly provide 

other contractor information for 

inclusion in PPIRS in accordance with 

42.1503(f). 

6. Amend section 42.1503 by 

removing from paragraph (a) the words 

‘‘office, end’’ and adding ‘‘office, audit 

office, end’’ in its place; and adding 

paragraph (f) to read as follows: 

42.1503 Procedures. 

* * * * * 

(f) Other contractor information. 

Within 10 days after a contracting 

officer determines that a contractor has 

submitted defective cost or pricing data, 

or a termination for cause or default 

notice has been issued or any 

subsequent conversions or withdrawals 

have been issued, agencies shall ensure 

information related to these issues are 

provided for inclusion in PPIRS. 

PART 49—TERMINATION OF 

CONTRACTS 

7. Add section 49.402–8 to read as 

follows: 

49.402–8 Reporting Information. 

The contracting officer, in accordance 

with agency procedures, shall ensure 

that information relating to the 

termination for default notice and any 

subsequent conversions or withdrawals 

are provided for inclusion in PPIRS in 

accordance with 42.1503(f). 

[FR Doc. E9–21176 Filed 9–1–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS-R2-ES-2008-0110] 

[MO 9221050083-B2] 

Endangered and Threatened Wildlife 

and Plants; 12-Month Finding on a 

Petition To List the Sacramento 

Mountains Checkerspot Butterfly as 

Endangered with Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 12–month petition 

finding. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce our 

12–month finding on a petition to list 

the Sacramento Mountains checkerspot 

butterfly (Euphydryas anicia 

cloudcrofti) as an endangered species 

and to designate critical habitat under 

the Endangered Species Act of 1973, as 

amended (Act). After a thorough review 

of all available scientific and 

commercial information, we find that 

listing the subspecies is not warranted 

at this time. We ask the public to 

continue to submit to us any new 

information that becomes available 

concerning the status of or threats to the 

subspecies. This information will help 

us to monitor and encourage the 

conservation of the subspecies. 

DATES: This finding was made on 

September 2, 2009. 

ADDRESSES: This finding is available on 

the Internet at http:// 

www.regulations.gov at Docket Number 

FWS-R2-ES-2008-0110. Supporting 

documentation we used to prepare this 

finding is available for public 

inspection, by appointment, during 

normal business hours at the U.S. Fish 

and Wildlife Service, New Mexico 

Ecological Services Office, 2105 Osuna 

NE, Albuquerque, NM 87113; telephone 

(505) 346-2525; facsimile (505) 346- 

2542. Please submit any new 

information, materials, comments, or 

questions concerning this finding to the 

above address. 

FOR FURTHER INFORMATION CONTACT: 

Wally ‘‘J’’ Murphy, Field Supervisor, 

New Mexico Ecological Services Office 

(see ADDRESSES). If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 4(b)(3)(B) of the Endangered 

Species Act (Act) (16 U.S.C. 1531 et 

seq.) requires that, for any petition to 

revise the List of Endangered and 

Threatened Wildlife that contains 

substantial scientific and commercial 

information that listing may be 

warranted, we make a finding within 12 

months of the date of receipt of the 

petition on whether the petitioned 

action is: (a) Not warranted, (b) 

warranted, or (c) warranted, but the 

immediate proposal of a regulation 

implementing the petitioned action is 

precluded by other pending proposals to 

determine whether species are 

threatened or endangered, and 

expeditious progress is being made to 

add or remove qualified species from 

the List of Endangered and Threatened 

Wildlife. Section 4(b)(3)(C) of the Act 

requires that a petition for which the 

requested action is found to be 

warranted but precluded be treated as 

though resubmitted on the date of such 

finding, that is, requiring a subsequent 

finding to be made within 12 months. 


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We must publish these findings in the 

Federal Register. 

Previous Federal Actions 

On January 28, 1999, we received a 

petition from Mr. Kieran Suckling of the 

Southwest Center for Biological 

Diversity (now Center for Biological 

Diversity) requesting emergency listing 

of the Sacramento Mountains 

checkerspot butterfly (Euphydryas 

anicia cloudcrofti) (butterfly) as 

endangered with critical habitat. On 

December 27, 1999, we published a 90– 

day finding that the petition presented 

substantial information that listing the 

butterfly may be warranted, but that 

emergency listing was not warranted; 

that document also initiated a status 

review of the subspecies (64 FR 72300). 

On September 6, 2001, we published 

a 12–month finding and proposed rule 

to list the butterfly as endangered with 

critical habitat (66 FR 46575). On 

October 7, 2004, we published a notice 

of availability of our draft Conservation 

Plan for the Sacramento Mountains 

checkerspot butterfly (Euphydryas 

anicia cloudcrofti) (Conservation Plan) 

(69 FR 60178), which we finalized in 

2005 (Service et al. 2005). On November 

8, 2004, we published a notice of 

availability of a draft economic analysis 

and draft environmental assessment on 

our proposed designation of critical 

habitat for the butterfly (69 FR 64710). 

On December 21, 2004, we withdrew 

the proposed rule (69 FR 76428), 

concluding that the threats to the 

species were not as great as we had 

perceived when we proposed it for 

listing. 

On July 5, 2007, we received a 

petition dated June 28, 2007, from 

Forest Guardians (now WildEarth 

Guardians) and the Center for Biological 

Diversity requesting that we emergency 

list the butterfly as endangered and that 

we designate critical habitat 

concurrently with the listing. In a July 

26, 2007, letter to the petitioners, we 

acknowledged the petition and 

responded that we intended to make a 

finding on whether the petition 

presented substantial information that 

the requested action may be warranted, 

to the maximum extent practicable 

within 90 days of receipt of the petition, 

according to the provisions of section 

4(b)(3) of the Act. On October 16, 2007, 

we informed the petitioners that an 

emergency listing of the butterfly was 

not warranted at that time because the 

insect control that had been scheduled 

to occur had been postponed until later 

in the autumn when the butterfly larvae 

were likely to be inactive and not 

threatened by the insect control actions. 

In a December 10, 2007, letter, we 

notified the petitioners that funding was 

available to complete the 90–day 

finding in fiscal year 2008. On January 

3, 2008, Forest Guardians filed suit 

against the Service for failure to issue a 

90–day finding on the petition (Forest 

Guardians, et al. v. Kempthorne, 1:08- 

CV-00011-RMU (D. D.C.)). On April 15, 

2008, a settlement was reached that 

required the Service to submit to the 

Federal Register a determination of 

whether the petition presents 

substantial information indicating that 

the petitioned action of listing the 

butterfly may be warranted. 

On December 5, 2008, we published 

a 90–day petition finding for the 

butterfly in the Federal Register (73 FR 

74123). We found that the petition 

presented substantial information 

indicating that listing the subspecies 

may be warranted, and we initiated a 

review of the subspecies’ status within 

its range. This notice constitutes our 12– 

month finding for the petition to list the 

butterfly as endangered with critical 

habitat. 

Species Information 

The Sacramento Mountains 

checkerspot butterfly is a member of the 

brush-footed butterfly family 

(Nymphalidae). The adults have a 

wingspan of approximately 5 

centimeters (cm) (2 inches (in)), and 

they are checkered with dark brown, 

red, orange, white, and black spots and 

lines. Larvae are black-and-white 

banded with orange dorsal bumps and 

black spines. Larvae reach a maximum 

length of about 2.5 cm (1 in) (Pittenger 

and Yori 2003, p. 8). The taxon was 

described in 1980 (Ferris and Holland 

1980). 

The butterfly inhabits meadows 

within the mixed-conifer forest (Lower 

Canadian Zone) at an elevation between 

2,380 to 2,750 meters (m) (7,800 to 9,000 

feet (ft)) in the vicinity of the Village of 

Cloudcroft, Otero County, New Mexico. 

The adult butterfly is often found in 

association with the larval food plants 

Penstemon neomexicanus (New Mexico 

penstemon) and Valeriana edulis 

(valerian) and adult nectar sources, such 

as Helenium hoopesii (sneezeweed). 

Penstemon neomexicanus is a narrow 

endemic species (Sivinski and Knight 

1996), restricted to the Sacramento and 

Capitan Mountains of south-central New 

Mexico. 

Adult butterflies are known to lay 

their eggs only on Penstemon 

neomexicanus (Service et al. 2005, p. 

10), although the larvae feed on both P. 

neomexicanus and Valeriana edulis 

(Service et al. 2005, p. 11). After 

hatching, larvae feed on host plants and, 

during the fourth or fifth instar (the 

period between molts in the larval stage 

of the butterfly), enter an obligatory and 

extended diapause (maintaining a state 

of prolonged inactivity), generally as the 

food plants die back in the autumn from 

freezing. Some larvae may remain in 

diapause for more than one year, 

depending on environmental 

conditions. During diapause, larvae 

probably remain in leaf or grass litter 

near the base of shrubs, under the bark 

of conifers, or in the loose soils 

associated with pocket gopher 

(Thomomys bottae) mounds (Service et 

al. 2005, p. 10). Once the larvae break 

diapause, they feed and grow through 

three or four more instars before 

pupating (entering the inactive stage 

within a chrysalis) and emerging as 

adults. Diapause is generally broken in 

spring (March and April), and adults 

emerge from the chrysalis in summer 

(June and July). 

We do not know the extent of the 

historical range of the butterfly due to 

limited information collected on this 

taxon prior to the time it was formally 

acknowledged as a new subspecies 

(Ferris and Holland 1980). The current 

known range of the butterfly is 

restricted to the Sacramento Mountains 

and is bordered on the north by the 

Mescalero Apache Nation lands, on the 

west by Bailey Canyon at the mouth of 

Mexican Canyon, on the east by Spud 

Patch Canyon, and on the south by Cox 

Canyon (U.S. Forest Service (USFS) 

2009a, pp. 1 and appendices; Service et 

al. 2005, p. 12). The potential range of 

the butterfly to the east and west is 

likely restricted because the nonforested 

areas are below 2,377 m (7,800 ft) in 

elevation, and the butterfly does not 

occur below this elevation (Service et al. 

2005, p. 9). 

The USFS estimates that there are 

about 1,093 hectares (ha) (2,700 acres 

(ac)) of suitable butterfly habitat on 

USFS (560 ha (1,385 ac)) and private 

lands (532 ha (1,315 ac)) (USFS 2004a, 

2008a, p. 18). Of this, about 60 to 70 

percent, or roughly 647 to 769 ha (1,600 

to 1,900 ac), might be occupied in a 

given year (USFS 2004a, p. 2; 2009b, p. 

2). These estimates are the best and 

most recent information we have 

regarding the range and distribution of 

the butterfly. 

Overview of Survey Data 

Larval and adult abundance surveys 

have been conducted for the butterfly 

since 1998 (USFS 2009a; Pittenger and 

Yori 2003). Many surveys have been ad 

hoc and not based upon rigorous 

methodology. Often, individuals were 

tallied along transects or during chance 

encounter surveys. The USFS has also 

established and monitored larval plots 


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since 1999 (USFS 2009a). Analysis of 

these coarse surveys for larvae provide 

only relative comparisons of mean 

abundance between years. These ad hoc 

estimates of abundance are based upon 

total larval counts. This type of 

abundance estimate, frequently known 

as an index to abundance, is known to 

be biased low (that is, the estimate is 

always lower than the true population 

number) (White et al. 1982, p. 32; 

Pollock et al. 1990, pp. 30-32). Thus, 

these data document presence or 

absence on specific plots through time, 

but are of little use in determining 

population trends of the butterfly. This 

is, in part, because from 1999 to 2003, 

larval tents that were found on one 

sampling day were not marked, so they 

may have been recounted on a 

subsequent sampling day (USFS 2004b, 

pp. 10-11). 

In addition, confounding factors (such 

as weather, observer bias, varying 

effort), limited replication (one sample 

per meadow per year), and sampling 

errors limit the applicability of those 

factors in evaluating the butterfly’s 

status (see USFS 2009a). Moreover, in 

some years, the USFS also conducted ad 

hoc surveys of adult butterflies (USFS 

2009a). Adult and larval surveys were 

not conducted at randomly selected 

locations and may not correspond to the 

butterfly population rangewide. The 

larval plots (areas that are permanently 

marked and annually surveyed) are 

located within 10 meadows but are only 

about 223 square (sq) m (2,400 sq ft). 

Our review of the data from the larval 

plots found that the small scale of 

survey plots does not relate 

meaningfully to the demographics of the 

butterfly. For example, the USFS did 

not detect larvae within 6 of 10 plots in 

2008, but adults were observed within 

the four meadows where larvae were not 

found on the plots, confirming the 

continued occupancy by the subspecies 

(USFS 2009a). Had we relied upon the 

larval plot data, we would have 

inaccurately concluded that the 

butterfly was absent from the meadows. 

Moreover, the disparity among survey 

methods, effort, and the data collected 

make it difficult to assess the butterfly 

population not only in occupied 

meadows, but also rangewide. Thus, the 

low numbers of butterflies observed 

during dry years, low survey effort, and 

spatial variability of food plants make it 

difficult to evaluate any historical 

trends or to make predictions about 

future population trends. 

The rangewide population size of the 

butterfly remains unknown because 

comprehensive surveys are logistically 

difficult and, therefore, have not been 

conducted. As noted above, limited 

surveys have been conducted only in 

small parts of its range. An assessment 

of population trends using these data 

would not be accurate, unless we could 

demonstrate that these limited data are 

representative of the overall population. 

We expect detecting overall trends will 

be difficult for this species, given data 

limitations, the cost of comprehensive 

surveys; and the likelihood of natural, 

annual, and spatial variations. 

The USFS has been conducting 

presence-or-absence surveys since 1998 

to estimate the range of the butterfly 

(USFS 2009a). The known range of the 

butterfly has not been expanded since 

2004 (USFS 2009a). Although we do not 

have standardized monitoring data to 

evaluate whether the butterfly’s 

population is increasing, stable, or 

declining on a gross scale, our 

observations indicate that neither the 

range of the butterfly, nor its persistence 

within general localities has decreased. 

Based on the best available information, 

we find that the butterfly continues to 

persist within the same general 

localities (USFS 2009a; Service 2009; 

Pittenger and Yori 2003; McIntyre 2005, 

2008; Ryan 2007, pp. 11-12). The USFS 

and Service will continue to survey and 

monitor the butterfly population, 

although we intend to refine the 

techniques used to improve the quality 

and applicability of the data collected 

(USFS 2009a, p. 1). 

For more information on the butterfly, 

refer to the September 6, 2001, proposed 

rule (66 FR 46575); the November 1, 

2005, Conservation Plan (Service et al. 

2005); and the December 21, 2004, 

withdrawal of the proposed rule (69 FR 

76428). Some of this information is 

discussed in our analysis below. The 

Conservation Plan (Service et al. 2005) 

with the Village of Cloudcroft, Otero 

County, USFS, and the Service was 

developed to identify and commit to 

implementing actions to conserve the 

butterfly. 

Summary of Factors Affecting the 

Species 

Section 4 of the Act (U.S.C. 1533 et 

seq.) and implementing regulations (50 

CFR part 424) set forth the procedures 

for adding species to the Federal Lists 

of Endangered and Threatened Wildlife 

and Plants. In making this finding, we 

summarize below the information 

regarding the status and threats to the 

butterfly in relation to the five factors 

provided in section 4(a)(1) of the Act. 

Under section 4(a)(1) of the Act, we may 

list a species on the basis of any of five 

factors: (A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

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

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. In making this 12–month 

finding, we have considered all 

scientific and commercial information 

received or acquired up to the 

publication of the 2004 withdrawal of 

the proposed rule (69 FR 76428; 

December 21, 2004) and any 

information received after that finding, 

including information in response to the 

most recent 90–day finding (73 FR 

74123; December 5, 2008). The 

petitioners provided additional 

comments and information on the 

butterfly during the comment period for 

the 90–day finding. We reviewed and 

incorporated this information where 

appropriate. Our evaluation of this 

information is presented below. 

A. Present or Threatened Destruction, 

Modification, or Curtailment of the 

Species’ Habitat or Range 

Under Factor A, we considered 

whether the Sacramento Mountain 

checkerspot butterfly is threatened by 

the following: Private property 

development, recreational impacts; 

habitat-altering projects in relation to 

roads, powerlines, and other small-scale 

impacts; livestock grazing; catastrophic 

wildfire and fire suppression; noxious 

weeds. 

Development 

The petitioners assert that, although 

development within the Village of 

Cloudcroft decreased following the 

September 6, 2001, publication of the 

proposed rule to list the butterfly (66 FR 

46575), development has nonetheless 

continued and, combined with other 

threats to the butterfly, remains 

significant. The petitioners correctly 

note that, as passed, the amended Otero 

County Subdivision Ordinance of 2005 

will expire on July 1, 2011 (Otero 

County 2005, p. 2). The ordinance 

requires that, for any new subdivision to 

be developed within potential butterfly 

habitat, a survey be conducted for the 

butterfly, its habitat, and its larval host 

plant Penstemon neomexicanus. If the 

survey is positive for the presence of the 

butterfly or its habitat, the developer is 

required to submit plans to address 

wildfire control, avoidance of 

destruction of the butterfly and its 

habitat, and, if avoidance is not 

possible, relocation of butterflies and 

restoration of destroyed habitat. The 

ordinance also contains a section on 

enforcement, penalties, and remedies. 

The amendment to the subdivision 

ordinance was not in place when we 


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made our withdrawal of the proposed 

listing rule in 2004, so we did not rely 

on it when we concluded that 

development was not a significant threat 

to the butterfly. The Village of 

Cloudcroft has received no permit 

applications for new subdivisions since 

the ordinance became effective in 2005, 

although one survey was conducted 

within potential habitat and found no 

butterflies present (J. McIntyre, pers. 

comm., 2009). The lack of development 

may be because the area has 

experienced water shortages in recent 

years (Friederici 2007, p. 1). In fact, 

water was so scarce that the Village of 

Cloudcroft was forced to haul water in 

recent years and subsequently installed 

the nation’s first reuse system, where 

treated wastewater is combined with 

incoming water to produce water for 

household use (Kurland 2007). The 

petition presents information on these 

issues that was previously submitted in 

comments on the draft Conservation 

Plan (69 FR 60178; October 7, 2004), 

draft environmental assessment (69 FR 

64710; November 8, 2004), and draft 

economic analysis (69 FR 64710; 

November 8, 2004) for the butterfly. The 

draft environmental assessment and 

draft economic analysis did not 

contemplate effects of the then-future 

ordinance. 

In our 2004 draft economic analysis, 

we found that approximately 8 to 10 

new homes had been constructed 

annually since 2000 within the 

boundary of the proposed critical 

habitat designation of approximately 

140 sq kilometers (km) (54 square miles 

(mi)) in the vicinity of the Village of 

Cloudcroft (Service 2004). Based upon 

this trend of 8 to 10 new homes 

annually, over the next 20 years, 

approximately 160 to 200 new 

residential projects may be built within 

the boundary of the then-proposed 

critical habitat for the butterfly. 

However, not all of these new 

residential projects would be located 

within areas that contain butterfly 

habitat. The economic analysis assumed 

that 55 to 69 of the landowners would 

conduct butterfly surveys because they 

would be located within areas that were 

proposed as critical habitat and that 

provide butterfly habitat. Our draft 

economic analysis estimated that 

butterflies would be found in 8 to 24 of 

those 55 residential project areas 

surveyed. Our draft economic analysis 

also estimated that the median lot size 

of these developments was 0.14 ha (0.34 

ac), indicating that up to 3.4 ha (8.2 ac) 

of occupied butterfly habitat may be 

affected by residential and commercial 

development activities (for a detailed 

discussion, see Service 2004). In the 

2001 proposed rule, we described an 

additional 4 ha (10 ac) of impacts from 

a private (residential) development on 

the east side of the Village of Cloudcroft. 

Thus, we continue to estimate that 

about 2 percent of the suitable occupied 

butterfly habitat on private lands (7.4 of 

314 ha (18 of 777 ac), using the USFS 

(2004a, p. 2) estimate of occupied acres 

on private lands) may be subject to 

development. It is likely that a small but 

unknown number of butterflies may be 

taken through development actions. 

Nevertheless, we do not believe that this 

level of impact is a significant threat to 

the butterfly. The discussion of 

residential and commercial 

development in the withdrawal for the 

butterfly (69 FR 76428; December 21, 

2004) is still the best available 

information that we have. As such, we 

have no reason to believe that 

residential and commercial 

development will threaten the butterfly 

in the future. 

Off-Highway Vehicles 

In our 2004 withdrawal of the 

proposed rule, we evaluated increased 

efforts by the USFS to reduce offhighway vehicle (OHV) use in Bailey 

Canyon and campgrounds where the 

butterfly occurs, and we analyzed 

information on the extent and nature of 

off-road impacts to the butterfly and its 

food plants. We concluded that the 

specific actions (fencing, signs, and 

barriers) the USFS had taken to reduce 

OHV impacts appeared to be effective, 

that only a small proportion of occupied 

habitat would be impacted annually by 

continuing OHV use, that the magnitude 

of the impact is low, and that OHV use 

does not significantly threaten the 

butterfly (69 FR 76428; December 21, 

2004). As detailed below, we find this 

continues to reflect the best available 

information. 

The 90–day finding noted that we had 

no additional information on the 

increase in OHV use since our 

withdrawal of the proposed rule to list 

the butterfly in 2004 (73 FR 74123). The 

petitioners presented some additional 

information during the open comment 

period. They claim that the butterfly 

will not be considered in the 

forthcoming travel management 

regulations (described below) until it is 

listed, a candidate, or proposed for 

listing, and section 7 consultations are 

required for activities that may affect the 

species (WildEarth Guardians 2009, p. 

7). Additionally, they believe that OHV 

use is a growing activity on the Lincoln 

National Forest (Forest) since 2004, 

based on a 2007 monitoring report from 

the Forest (WildEarth Guardians 2009, 

p. 7; USFS 2008b, pp. 9-10). 

We previously recognized that OHV 

use was increasing on the Forest, and 

that impacts were occurring on about 

half of the occupied butterfly habitat 

(225 ha (555 ac)) (69 FR 76428; 

December 21, 2004; USFS 2004a). In 

2004, we found that fencing, signs, and 

monitoring by law enforcement 

personnel had stopped OHVs from 

entering butterfly habitat on USFS 

lands, and very little habitat disturbance 

can be attributed to OHVs in a given 

year (69 FR 76440). We also noted that 

the USFS is revising its travel 

management regulations to designate a 

system of existing roads and trails and 

to regulate or prohibit certain motor 

vehicle uses (69 FR 42381; July 15, 

2004, and 69 FR 76428; December 21, 

2004). In November 2005, the USFS 

issued the Travel Management Rule for 

designation of routes and areas for 

motorized vehicle use (36 CFR 212.56). 

The rule requires that the USFS 

designate a system of roads, trails, and 

areas for motor vehicle use by vehicle 

class and, if appropriate, by time of year 

(70 FR 68264; November 5, 2005). The 

directives establishing agency policy 

and standard processes to follow were 

recently finalized (December 9, 2008; 73 

FR 74689). As part of this effort, the 

Forest inventoried and mapped 

dispersed recreation sites (USFS 2008b, 

p. 2). The current policy on the Forest 

permits driving vehicles up to 91 m (300 

ft) from either side of an open, 

authorized road or trail to camp or 

picnic (USFS 2009c, p. 1). In some 

areas, the Forest found that user-created 

roads had expanded beyond the 91-m 

(300-ft) distance currently allowed 

under the Forest Plan (USFS 2008b, p. 

2). Through the travel management 

process, the Forest intends to restrict the 

current distance to 30 m (100 ft) (USFS 

2009d, p. 1) and will produce new maps 

to reflect that. Once the designation of 

existing roads and trails that are open 

for motor vehicle use is complete, the 

Forest will prohibit motor vehicle use 

off the designated system. Still, this 

Rule will not increase the agency’s 

budget or the number of law 

enforcement officers. However, the 

designation of a system of roads and 

trails will enhance enforcement by 

substituting a regulatory prohibition for 

closure orders and providing for a 

standardized motor vehicle use map 

supplemented by signage (70 FR 68270; 

November 9, 2005). This process should 

be complete during fiscal year 2009 

(USFS 2009e, p. 5). We agree that some 

individual butterflies or their food 

plants may be killed or injured by 


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OHVs. However, we believe the revised 

travel management regulations will 

further reduce the impact of motorized 

vehicles on the butterfly and its habitat 

by providing a consistent policy that 

can be applied to all classes of motor 

vehicles, including OHVs. We have 

considered the information presented by 

WildEarth Guardians, including the 

travel analysis report on the Lincoln 

National Forest (USFS 2008a, entire 

document), and conclude that OHVs are 

not a significant threat to the butterfly 

now or in the future. 

The USFS reported the quantity of 

land currently in use as Forest roads 

and within the habitats of species that 

are potentially affected by the presence 

of roads (USFS 2008a, p. 18). One 

category of data reported is ‘‘acres of 

habitat lost to road.’’ The Forest 

estimated that 51 ha (126 ac) of Forestwide roads occurred in meadows within 

the range of the butterfly’s habitat. The 

petitioners claim that this amount of 

occupied butterfly habitat has been lost 

to road construction and believe that 

this loss may be even more significant 

to the survival of the butterfly than the 

amount of private lands impacted by 

development. This category is a simple 

calculation based upon the total miles of 

roads that traverse meadow habitat of 

the butterfly multiplied by the average 

road width. That is, 119 km (74 mi) of 

roads multiplied by an average road 

width of 4.2 m (14 feet), equaling 51 ha 

(126 ac), traverse butterfly habitat (USFS 

2008a, p. 18). While the estimate is new 

information, we previously recognized 

that roads have been historically 

constructed within meadows likely 

occupied by the butterfly. Therefore, we 

do not consider these existing roads a 

new threat because none was 

constructed since our 2004 withdrawal 

(69 FR 76428; December 21, 2004). After 

reviewing this information, we affirm 

that the OHV use and road construction 

do not present a current or foreseeable 

future threat to the butterfly. 

Camping 

As noted above, the existing policy on 

the Forest for the past 20 years has been 

to allow motorized travel anywhere 

within 91 m (300 ft) of either side of an 

open road or trail on USFS lands to 

reach a dispersed camp site (USFS 

2008a, p. 27). On current motorized 

trails, use is limited to vehicles that are 

less than 127 centimeters (50 inches) 

wide (USFS 2008a, p. 22). The Forest 

gathered data in July 2007 to locate as 

many dispersed camping sites as 

possible (USFS 2008a, pp. 27-28). They 

recorded 477 dispersed camping sites 

on the entire Sacramento Ranger 

District, but did not report how many 

were within meadows occupied by the 

butterfly or other habitat types (USFS 

2008a, p. 27). Nevertheless, to address 

this situation, the Forest intends to limit 

driving to those dispersed camping sites 

within 30 m (100 ft) of an open, 

authorized road or trail through the 

Travel Management Rule process that 

will be finalized in Fiscal Year 2009 

(USFS 2009c; p. 1; 2009d, p. 1). This 

action would prohibit the use of a 

motorized vehicle to access 305 of the 

477 of the dispersed camping sites on 

the Sacramento Ranger District that are 

currently beyond the 30-m (100-ft) 

distance (USFS 2008a, p. 27). This 

change will lessen the chances of 

individual butterflies and their food 

plants being harmed from these 

activities. We believe this process will 

further protect butterflies and food 

plants from deleterious effects of 

motorized vehicles and camping. 

In our 2004 withdrawal of the 

proposed rule, we discussed increased 

efforts by the USFS to reduce impacts to 

the butterfly from dispersed camping 

and camping at established 

campgrounds. Although the petitioners 

acknowledge that the USFS has taken 

measures to reduce recreational impacts 

to the butterfly at established 

campgrounds, they claim that increased 

camping can result in harm to the 

butterfly. We have no information to 

indicate that camping has increased 

since 2004 in habitats occupied by the 

butterfly. The USFS reduced capacity 

within Deerhead Campground by 20 

percent and intends to reduce the 

capacity of Sleepygrass Campground by 

12 percent (removal of 21 campsites, 27 

picnic locations, and 8 toilets) within 

occupied butterfly habitat by 2012 

(USFS 2005a, p. 5; 2008c, pp. 13-14). 

Since 2004, they have also reduced the 

amount of disturbance within occupied 

butterfly habitat in Black Bear, Slide, 

Aspen, and Deerhead campgrounds 

(USFS 2005a, pp. 2-4; 2009a; 2009b, p. 

1). These actions have included 

restricting access to occupied butterfly 

habitat, and surveying and moving 

larvae in three campgrounds prior to 

capital improvements that redesigned 

camping facilities to reduce the number 

of campers and remove picnic tables 

(Service 2005; 2005b, p. 11; USFS 2003, 

2009a). Similar improvements to 

butterfly habitat within Sleepygrass 

Campground have not yet been initiated 

but will likely be initiated this year and 

be completed by 2012 (USFS 2008c, p. 

14; 2009d, p. 1). When the project 

within Sleepygrass Campground is 

complete, all eight of the campgrounds 

that contain occupied butterfly habitat 

will have improved, thereby resulting in 

significantly fewer impacts to the 

species than in 2001. We are not aware 

of any information that supports the 

contention that camping-related impacts 

to the butterfly or its habitat have 

increased or are likely to do so in the 

foreseeable future. We do not believe 

that camping-related activities will 

result in significant population-level 

impacts to the butterfly. Therefore, we 

do not consider disturbance related to 

camping or campgrounds to be a threat 

to the butterfly now or in the foreseeable 

future. 

Mountain Biking 

In our 2004 withdrawal of the 

proposed rule, we acknowledged that 

butterfly larvae were known to occur on 

and adjacent to mountain bike trails, 

and we reviewed efforts routinely made 

by the USFS to address potential 

impacts to the butterfly, including 

surveys and either avoiding or moving 

larvae during large events, such as 

mountain bike races (69 FR 76428; 

December 21, 2004). We concluded that, 

while mountain biking does affect the 

butterfly and its food plants to some 

extent, it did not appear that the 

impacts were likely significant to the 

butterfly. The petitioners do not present 

information that impacts from mountain 

biking have increased in habitats 

occupied by the butterfly, and we have 

no information that such impacts have 

increased since 2004. Consequently, 

based on the best available information, 

we find that mountain biking is not a 

threat to the butterfly currently or in the 

foreseeable future. 

Powerlines and Other Small-Scale 

Impacts 

The petitioners discuss the impacts of 

powerlines and other small-scale 

impacts by comparing our discussion of 

those impacts in our 2004 withdrawal of 

the proposed rule (69 FR 76428; 

December 21, 2004) to our discussion of 

those impacts in our 2001 proposed rule 

(66 FR 46575; September 6, 2001). The 

USFS has committed to continuing the 

use of seasonal restrictions, surveying 

and moving larvae, or placing avoidance 

buffer areas around larvae to avoid or 

minimize impacts to the butterfly when 

the USFS is planning and implementing 

projects (USFS 2008e, p. 36; 2009a). As 

noted below, some temporary impacts to 

food plants and habitat have occurred, 

but we believe these restrictions have 

significantly reduced impacts on the 

butterfly. In a letter from the Forest 

Supervisor, the USFS expressed a 

commitment to measures aimed at 

minimizing potential impacts to the 

butterfly from activities within the 

purview of their authority as a land 


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management agency (USFS 2009a, p. 1). 

Because the USFS continues to carefully 

monitor and coordinate with the 

Service, we believe these stipulations 

(the use of seasonal restrictions, 

surveying and moving larvae, and 

placing avoidance buffer areas around 

larvae) will continue to be adequate to 

minimize potential impacts to the 

butterfly. 

Since the Service’s withdrawal of the 

proposed rule, we are aware of the 

following project-related impacts on 

USFS lands: Village of Cloudcroft 

waterline (2.8 ha (6.8 ac) of temporary 

impacts); Pines Campground water 

repair (0.04 ha (0.1 ac) of temporary 

impacts); Cox Canyon Powerline (3.1 ha 

(7.6 ac) of temporary impacts); mowing 

along Highway 82 (1.2 ha (2.9 ac) of 

temporary impacts), and Silver Springs 

Powerline (1.1 ha (2.8 ac) of temporary 

impacts) (USFS 2007a, p.1). These 

projects were all completed within the 

growing season and revegetated the 

following year with host plants (Service 

2004b). We are also aware that up to 

about 2.8 ha (7 ac) of habitat may be 

temporarily impacted by a recent 

proposal to salvage logs (USFS 2008e, 

p.42). Previous monitoring found that 

small temporary disturbances to 

butterfly habitat, such as from dragging 

a salvaged log through a meadow 

occupied by the butterfly, naturally 

revegetated with native plants in one 

growing season (USFS 2002a, p. 1; 

Service 2004b). We have found that 

small-scale temporary impacts to the 

butterfly and its habitat do not appear 

to affect the viability of the species 

because it continues to be found in the 

area, although we do not know whether 

the butterfly population in the area is 

increasing or decreasing. We do not 

consider this level of limited take of 

individuals or temporary disturbance of 

habitat to be a significant threat to the 

butterfly. In our withdrawal, we 

acknowledged that, although some 

restrictions were likely to be placed on 

ground-disturbing projects (such as 

when constructing a new powerline), 

the nature of these impacts and the 

recognition that adjacent habitat will 

remain intact enabled us to conclude 

that the activity represented only a 

limited threat to the species (69 FR 

73428). We believe this is still the best 

available information. The current level 

of impact is not a threat to the butterfly. 

We have no information or reason to 

believe that this level of impact will 

increase in the foreseeable future. 

Cattle Grazing 

The petitioners claim that livestock 

grazing continues to threaten butterfly 

habitat. In our 2004 withdrawal of the 

proposed rule, we found that, because 

the USFS is managing allotments for 

medium-intensity grazing, the effects on 

the butterfly and its habitat would be 

minimal and would not result in the 

butterfly population being compromised 

(69 FR 76428). We concluded that the 

current and future occurrence of grazing 

does not represent a principal factor in 

the viability of the butterfly and its 

habitat. The petitioners presented some 

new information about cattle grazing in 

their comments on the 2008 90–day 

finding. We review this and other new 

information below. 

The USFS monitors and manages 

allotments to maintain a minimum of 10 

cm (4 in) end-of-season stubble height, 

which generally equates to 35 percent 

forage utilization (Holechek and Galt 

2000, p. 13; USFS 2004c, 2009f). The 

USFS manages cattle allotments 

consistent with existing range 

management standards and guidelines 

under its Forest Plan, and when 

management adjustments are necessary 

to meet the forage levels, adjustments 

are made through the permit 

administration process (USFS 2004d). 

Moreover, the USFS manages and 

protects long-term range conditions 

consistent with their range management 

regulations (for example, see 36 CFR 

222) (USFS 2004c). 

In our December 21, 2004, withdrawal 

(69 FR 76428), we found that cattle 

grazing is compatible with conservation 

of the butterfly because the USFS is 

currently and will continue to manage 

its allotments that are occupied by 

butterflies for moderate-intensity 

grazing (10-cm end-of-season stubble 

height or 35-percent forage utilization or 

both). Although we also acknowledged 

that grazing can incidentally kill 

butterflies through trampling or 

accidental ingestion of larvae or eggs 

(for example, see Pittenger and Yori 

2003; White 1986), and anticipated such 

effects are occurring within allotments 

that overlap with occupied butterfly 

habitat, we found that these effects were 

minimal and did not result in the 

butterfly population being 

compromised. Although the 

relationship between cattle grazing and 

the butterfly is not completely clear, as 

analyzed below, we continue to affirm 

that butterflies persist within allotments 

under a moderate-intensity grazing 

regime. 

The petitioners presented information 

on five allotments: CC Walker, 

Sacramento, Russia Canyon, James 

Canyon, and Pumphouse. They claim 

that forage overutilization in CC Walker, 

Sacramento, and Russia Canyon 

Allotments indicates severe rangeland 

deterioration within butterfly habitat. 

However, the butterfly has never been 

detected within the CC Walker 

Allotment (USFS 2004a, map; USFS 

2009a). Additionally, as we detailed in 

the withdrawal of the proposed rule in 

2004, no livestock grazing occurs in the 

portion of the Sacramento Allotment 

occupied by the butterfly, because the 

meadows are bounded by steep canyons 

that are inaccessible to cattle (Service 

2004a, pp. 1-2). For these reasons, we 

conclude that no impacts are occurring 

to the butterfly within the CC Walker 

and Sacramento Allotments. 

The butterfly occurs only within 

about 7.2 ha (17 ac) of the Russia 

Canyon Allotment (USFS 2004e). That 

allotment has two permittees. One is 

permitted for 6 head of cattle from May 

16 to October 31 (USFS 2007c, p. 61); 

the other is permitted for 32 head from 

May 16 through October 31 (USFS 

2007c, p. 61). We reviewed information 

collected between 2001 and 2008 from 

the Russia Canyon Allotment and find 

that the authorized minimum 10-cm (4- 

in) end-of-season stubble heights (i.e., 

grazing standards) have generally not 

been exceeded (WildEarth Guardians 

2009, Attachment 2; USFS 2009f, p. 1). 

Therefore, severe rangeland 

deterioration is not occurring within 

butterfly habitat on the Russia Canyon 

Allotment (WildEarth Guardians 2009, 

Attachment 2; USFS 2009f, p. 1). 

Moreover, the butterfly continues to 

persist within the grazed area of this 

allotment (Service 2009). Additionally, 

after reviewing monitoring data that 

demonstrate the consistent application 

of the authorized moderate-intensity 

grazing standards on the Russia Canyon 

Allotment, we continue to find that 

some minor impacts are likely occurring 

from trampling of larvae by cattle and 

ingestion of food plants, but we do not 

consider these to be a significant threat 

to the butterfly or its habitat currently 

or in the foreseeable future, because the 

USFS has been monitoring and 

managing this allotment to attain the 

moderate-intensity standards, while 

butterflies continue to persist in this 

area. In 2004, we concluded that this 

management strategy will ensure larval 

and adult food plants are maintained. 

The new information we reviewed is 

consistent with our previous 

conclusion. We continue to find that 

cattle grazing is not a significant threat 

to the butterfly now or in the future. 

The petitioners cite a statement in the 

Conservation Plan that the James 

Canyon Allotment will be reopened to 

grazing in 2007 (WildEarth Guardians 

2009, p. 5; Service et al. 2005, p. 29). 

The Conservation Plan foreshadowed 

the opening of parts of the James 

Allotment by 2007 but also indicated 


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the Forest may leave one pasture 

ungrazed for the conservation of the 

butterfly (Service et al. 2005, p. 29). In 

2005, the Forest analyzed an alternative 

to permanently close 2,751 ha (6,878 ac) 

to livestock grazing within the center of 

the allotment but did not finalize the 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et. seq.) 

decision. The remaining 2,655 ha (6,561 

ac) occur within the Beard (837 ha 

(2,068 ac)), Zinker (984 ha (2,432 ac)), 

and Bailey (834 ha (2,061 ac)) pastures. 

This alternative would have used a 

deferred rotation grazing system, 

whereby livestock are moved through 

three pastures during the grazing season 

to maintain forage utilization between 

30 and 40 percent and stubble heights 

of at least 11.4 cm (4.5 in) (USFS 2004f, 

p. 1). Of these pastures, the Beard 

pasture is outside of the known range of 

the butterfly (USFS 2004a, map 1; 2004f, 

map 1), whereas Zinker and Bailey 

pastures contain occupied butterfly 

habitat. Under this alternative, 67 

percent (8,946 of 13,439 acres) of the 

allotment (5,376 ha) would be either 

outside the known range or closed to 

livestock grazing (USFS 2004f; Service 

et al. 2005, p. 29). 

The USFS anticipates updating its 

NEPA analysis for the James Allotment 

in 2010 (USFS 2009f, p. 1). It intends to 

carry the same alternative forward that 

was analyzed in 2005 but not finalized, 

along with any other alternatives that 

may develop through the scoping 

process (USFS 2009f, p. 1). As part of 

this process, we intend to provide 

information to the USFS and encourage 

the selection of the same alternative that 

was developed in 2005 or an even more 

conservative alternative for the 

butterfly. The goal would be to 

minimize impacts to the butterfly by 

managing this allotment to attain a 

moderate or lower level of grazing and 

eliminate impacts to the butterfly by 

closing some areas to grazing. 

There is currently no authorized 

grazing within James allotment, which 

has been the case since 1995 (USFS 

2009f, p. 2). Similar to other USFS 

allotments, it is likely that a new term 

permit for the James Allotment will 

propose an end-of-the-season stubble 

height of 10 cm (4 in) or a forage 

utilization level of 35 percent (2004h). 

As noted above, in 2004, we concluded 

that this level of moderate-intensity 

grazing was compatible with 

conservation of the butterfly and limited 

potential adverse effects (69 FR 76437, 

December 21, 2004). This is because the 

butterfly continues to persist in areas 

that have been historically and are 

currently grazed by cattle. We still 

believe this is the best available 

information. 

We recognize the USFS could analyze 

and choose an alternative that does not 

close any of the areas within the 

allotment that contain occupied 

butterfly habitat. Under such a scenario, 

we would envision that impacts to the 

butterfly would be increased from 

trampling or ingestion of larvae or eggs. 

However, based on our current 

understanding of cattle grazing, we 

would anticipate butterflies would 

continue to persist within areas that are 

grazed at moderate intensity. 

Nevertheless, during the NEPA process, 

we intend to encourage the USFS to 

permanently close occupied butterfly 

habitat to cattle grazing in order to 

provide the greatest conservation 

benefit. We believe this would 

exemplify the USFS’ commitment under 

the Conservation Plan to conserve and 

manage the species (Service et al. 2005). 

The Pumphouse Allotment also 

contains suitable and occupied butterfly 

habitat that is open to livestock grazing 

and is managed to maintain moderateintensity forage utilization between 30 

and 40 percent (USFS 2005b, p. 1; 

2009f, p. 1). We found that this level of 

livestock grazing would have 

insignificant and discountable effects to 

the plants that compose a part of 

Mexican spotted owl (Strix occidentalis 

lucida) critical habitat within meadows 

because the USFS would ensure forage 

standards were not violated (Service 

2006, p. 1). These areas of critical 

habitat also contain butterfly food plants 

and habitat. Although livestock grazing 

within occupied butterfly habitat creates 

the potential for impacts to the species 

through trampling and loss of larval 

food plants, the USFS conducted regular 

monitoring and demonstrated that 

authorized grazing standards were 

annually attained (USFS 2004f, pp. 18- 

19; 2005b, p. 1; 2009f, p. 1). The USFS 

manages this and other allotments 

consistent with existing range 

management standards and guidelines 

under its Forest Plan, and when 

management adjustments are necessary 

to meet the forage levels, adjustments 

can be made through the permit 

administration process (USFS 2004g, p. 

3, 2004d, p. 2, Service et al. 2005, p. 49; 

69 FR 76437, December 21, 2004). 

Similar to the Russia Allotment 

discussed above, we reviewed data from 

2001 to 2008 and find the minimum 

end-of-season stubble heights of greater 

than 10 cm (4 in) were maintained 

within the Pumphouse Allotment, and 

butterflies continue to persist in this 

area (WildEarth Guardians 2009, 

Attachment 2; USFS 2009f, p. 1; 2009a). 

We continue to believe that this level of 

forage utilization is compatible with the 

butterfly now and in the foreseeable 

future. 

Based on our review of this 

information, we find that, at current and 

predicted future livestock grazing levels 

within habitat occupied by the butterfly, 

there is not sufficient evidence to 

conclude that the subspecies is 

threatened. We have no evidence from 

any allotments that indicates ongoing 

livestock grazing affects the butterfly to 

such an extent that it would be likely to 

become endangered within the 

foreseeable future. USFS management of 

livestock allotments that are currently 

occupied by the butterfly is based on 

systematic vegetation monitoring in key 

areas to ensure the moderate intensity 

standards are attained. Forage 

utilization or stubble heights or both are 

measured by key area on key forage 

species within various pastures 

encompassing a grazing allotment. Key 

areas are locations readily accessible to 

water and forage and are located on 

level to intermediate slopes. Key species 

are herbaceous and woody vegetation 

that livestock prefer at any given time of 

the year, some of which are likely 

butterfly food plants. By monitoring key 

areas, the USFS ensures that an 

allotment or pastures within an 

allotment are not overgrazed. However, 

if forage utilization levels or stubble 

heights in a key area are reached, 

livestock can be moved out of that 

portion of a pasture, out of a pasture 

altogether, or off the entire allotment. 

This type of flexibility in range 

management operations is directed by 

USFS policy in using adaptive 

management (FSH 2209.13, Chapter 90) 

and is enforced through monitoring of 

allotments. This process generally limits 

exceeding utilization standards or 

stubble heights or both, and we believe 

it has and will continue to ensure the 

continued existence of the butterfly and 

its habitat. 

Based on our review of these data, we 

conclude that the current and future 

occurrence of grazing does not represent 

a principal factor in the viability of the 

butterfly and its habitat, although the 

larval food plant Penstemon 

neomexicanus is likely routinely grazed 

upon by cattle. It was previously 

recognized that livestock grazing has the 

potential to impact the butterfly directly 

through trampling or ingestion of 

individuals and indirectly through the 

reduction in ground cover (Service et al. 

2005, pp. 29-30). We continue to believe 

this is accurate, but have determined 

that USFS management and monitoring 

of livestock grazing standards on all 

allotments within the range of the 

butterfly are compatible with the 


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continued existence of the species. 

Although the potential for impacts to 

the butterfly exists, our review found no 

information indicating that livestock 

grazing significantly affects the status of 

the butterfly now or will do so in the 

foreseeable future. Therefore, we 

conclude that livestock grazing is not a 

significant threat to the butterfly. 

Trespass Horses 

In the withdrawal of the butterfly 

proposed rule, we noted trespass (feral) 

horses occurred within butterfly habitat 

in the northern portion of the 

Sacramento Ranger District (69 FR 

76428; December 21, 2004). We found 

that these horses have the potential to 

affect the butterfly and its food plants, 

but horses were considered a low threat 

because they occur in a limited number 

of meadows in the James Allotment 

(Service et al. 2005, p. 49; USFS 2004f, 

pp. 18-19; USFS 2004g. p. 1). We also 

noted that the USFS committed in the 

Conservation Plan to removing the feral 

horses from the James Allotment. The 

USFS recently followed through on its 

commitment and removed feral horses 

from this area (Service et al. 2005, p. 49; 

USFS 2004c, p. 1; 2008f, p. 1). Although 

we continue to view feral horses as a 

low threat, the removal will benefit the 

butterfly and its habitat. 

Fire 

In addressing the threat of fire 

suppression and wildfire, the 

petitioners compare the analysis used in 

our September 6, 2001, proposed rule 

(66 FR 46575) to our analysis in the 

withdrawal of the proposed rule (69 FR 

76428; December 21, 2004). The 

discussion and analysis related to 

wildfire and the butterfly in the 

withdrawal of the proposed rule are still 

the best available information that we 

have. In our withdrawal, we used 

information from the USFS, assessed 

new and continued efforts to reduce the 

risk of catastrophic wildfire in the 

Sacramento Mountains, and concluded 

that the threat to the butterfly from 

catastrophic wildfire had been reduced 

and was no longer significant (see also 

Service et al. 2005, pp. 21-25). For 

example, the areas where the larval host 

plant grows tend to lack continuous fine 

fuels that would effectively carry a fire 

(Service et al. 2005, p. 21). Moreover, 

we found that fire and activities 

conducted to reduce the risk of fire may 

be beneficial by increasing connectivity 

between areas of suitable butterfly 

habitat. Since 2004, the USFS has 

continued efforts to reduce the risk of 

wildfire (USFS 2007c, pp. 21-24). 

Increases in fuels management actions 

have been funded and implemented, 

and these activities will continue for the 

foreseeable future (USFS 2009i). Within 

the last 5 years the USFS has 

accomplished a substantial fuels 

reduction work within 1 mile of the 

Village of Cloudcroft (e.g., see USFS 

2007c, p. 33). Approximately 1,216 ha 

(3,005 ac) have received at least one, if 

not several, treatments, which include 

pre-commercial thinning, commercial 

timber harvest, mastication (shredding 

of felled trees), prescribed burns, and 

logging (USFS 2002b, 2004h, 2004i, 

2004j, 2007b, 2007c, 2009g). As a result, 

the reduction of tree density, disposal of 

the resulting woody debris and 

appropriate use of prescribed fire will 

not only improve forest health, but also 

greatly reduce the probability of bark 

beetle outbreaks and decrease the risk of 

wildfire (USFS 2004k, p. 2). 

Climate change may have an impact 

on wildfire. In a recent study, 

Westerling et al. (2006, p. 943) found 

that increased wildfire activity is at least 

partially the result of a changing climate 

and a resulting longer wildfire season, 

although the southwestern forests were 

less affected by changes in the timing of 

spring than forests of the northern 

Rocky Mountains. Other authors have 

described similar patterns of increased 

fires or risk of fires (Schoennagel et al. 

2004; Running 2006). Nevertheless, any 

attempt to describe the relationship 

between climate change and the 

probability of butterfly habitat 

catastrophically burning is problematic, 

given that the scale of these studies is 

too large for us to draw any firm 

conclusions at the local scale within the 

range of the butterfly. On this basis, we 

conclude that the threat of wildfires has 

not increased within the range of the 

butterfly since our 2004 withdrawal of 

the proposed rule. For these reasons, we 

do not consider wildfire a significant 

threat to the species now or in the 

foreseeable future. 

Noxious Weeds 

The petitioners assert that the manual 

weed-pulling program to control 

noxious weeds does not fully address 

the threat of noxious weeds to the 

butterfly. The USFS began the weedpulling program in 2001, and the 

program is described in the 

Conservation Plan (Service et al. 2005, 

p. 34). In our 2004 withdrawal of the 

proposed listing (69 FR 76428), we 

found that nonnative vegetation and the 

application of herbicides are currently 

being managed, and we concluded that 

the nonnative vegetation is a not a 

significant threat to the butterfly. There 

is no information available to suggest 

that nonnative or noxious weeds are or 

will become a threat to the Sacramento 

Mountains butterfly. 

In summary, we have no information 

to indicate that any of the following are 

significant threats to the subspecies: 

Development; recreation; projects such 

as roads, powerlines, and other smallscale impacts; cattle or feral horse 

grazing; wildfire; and noxious weeds. 

On the basis of the information 

presented above, we find the present or 

threatened destruction, modification, or 

curtailment of the habitat or range of the 

butterfly is not a threat now and we do 

not foresee that it will be in the future. 

B. Overutilization For Commercial, 

Recreational, Scientific, or Educational 

Purposes 

The petitioners believe that collection 

threatens the butterfly, reiterating our 

preliminary finding from the 2001 

proposed rule that the butterfly’s life 

history characteristics, attractiveness to 

collectors due to rarity, and newspaper 

publications promote collection (66 FR 

46575). In our 2004 withdrawal, we 

concluded that the closure of USFS 

lands to butterfly collecting in 2000 had 

reduced the threat of overcollection and 

that this threat was no longer 

significant. We did not receive any new 

information or any explanation as to 

why the butterfly is threatened by 

collection now or in the future. 

Likewise, we have no new information 

on the potential threat of overcollection 

since the 2004 withdrawal. We do not 

have any recent evidence of risks to the 

butterfly from overutilization for 

commercial, recreational, scientific, or 

educational purposes, and we have no 

reason to believe this factor will become 

a threat to the species in the future. 

Therefore, we find overutilization for 

commercial, recreational, scientific, or 

educational purposes does not threaten 

the butterfly now or in the foreseeable 

future. 

C. Disease or Predation 

We are not aware of any information 

indicating that disease or predation 

threaten the butterfly. Therefore, we 

find that disease and predation are not 

threats to the butterfly now or in the 

foreseeable future. 

D. Inadequacy of Existing Regulatory 

Mechanisms 

The petitioners claim that new USFS 

regulations were recently passed that 

remove any species viability standard 

protections that were previously 

provided in 36 CFR 219.20, a regulation 

requiring the USFS to address ecological 

conditions necessary to maintain 

species viability. The petition also 

asserts that conservation measures 


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resulting from section 7 (of the Act) 

conferencing no longer apply because 

the species is no longer proposed for 

listing. Additionally, the petitioners 

assert that the butterfly has no State 

protection, as New Mexico does not 

recognize insects as ‘‘wildlife.’’ 

USFS Protections 

The butterfly has been designated by 

the Regional Forester as a Forest 

sensitive species. Under this 

designation, the USFS currently 

analyzes all planned, funded, executed, 

or permitted programs and activities for 

possible effects to the species (USFS 

2008e and 2009a; 2009h, p. 3). Sensitive 

species receive special management 

emphasis to ensure their viability and to 

preclude trends toward endangerment 

that would result in the need for Federal 

listing (USFS 2009h, p. 3). As a current 

Forest sensitive species, the butterfly is 

included in impact analyses by the 

USFS in all applicable NEPA 

documents to ensure its continued 

viability and preclude the need for 

Federal listing. 

On April 21, 2008, a new USFS 

planning rule (73 FR 21468) was made 

final. However, on June 30, 2009, the 

United States District Court for the 

Northern District of California issued a 

decision in Citizens for Better Forestry 

v. United States Department of 

Agriculture, No. C 08-1927 CW (N.D. 

Cal. June 30, 2009). The court enjoined 

the USFS from implementing and using 

the 2008 planning rule and remanded 

the matter to them for further 

proceedings. The Government has not 

yet determined whether to appeal the 

District Court’s June 30, 2009, decision 

to the Ninth Circuit Court of Appeals. 

Nevertheless, on July 15, 2009, the 

USFS issued legal guidance that the 

planning rule from November 9, 2000 

(65 FR 67514) is now in effect (USFS 

2009l). As a result, the information on 

the management and protection of the 

butterfly on public lands presented in 

the withdrawal for the butterfly (69 FR 

76428; December 21, 2004) is still the 

best available information that we have. 

The intent of the Regional Forester’s 

sensitive species designation is to 

provide a proactive approach to 

conserving species to prevent a trend 

toward listing under the Act, and to 

ensure the continued existence of 

viable, well-distributed populations. 

The USFS policy (FSM 2670.3) states 

that Biological Evaluations (BEs) must 

be completed for sensitive species and 

signed by a journey-level biologist or 

botanist. The Lincoln National Forest 

will continue developing BEs and 

conducting NEPA analyses for each 

project that will affect the butterfly or its 

habitat. This analysis will ensure that 

projects do not singularly or 

cumulatively impact the butterfly to 

such an extent that the species would 

require Federal listing. Through this 

process, the USFS will analyze specific 

project proposals to ensure that the 

actions being contemplated are 

consistent with any specific guidelines 

and standards for the butterfly under the 

current or a future revised LRMP. In 

practice, the USFS has taken actions to 

conserve and avoid impacts to sensitive 

species, including the butterfly and its 

habitat (see USFS 2004a, 2004c, 2007c, 

2007d, 2007e, 2009a). This NEPA 

analysis process has been adequate to 

protect the butterfly. Under the current 

legal guidance, this oversight and 

protection will continue under the 

LRMP and when it is revised (UFSF 

2009l). 

In summary, because the USFS had 

some authority and regulations in place 

as we reviewed in our 2004 withdrawal 

and will continue such efforts into the 

future, we find these efforts contribute 

significantly to the adequacy of existing 

regulatory mechanisms. 

On the basis of this information, we 

believe the butterfly will receive 

protection and consideration in the 

future on Forest-wide and projectspecific levels by continuing to be 

analyzed in all applicable NEPA 

documents. The Service’s 2004 

withdrawal of the proposed listing rule 

for the butterfly relied partly on the 

butterfly’s inclusion in the Forest 

sensitive species designation for 

maintenance of certain protections for 

the butterfly through NEPA. Since the 

butterfly will continue to be considered 

a sensitive species and specific 

protections will be provided under the 

current or future revised LRMP, we find 

this process adequate to protect the 

butterfly currently and in the 

foreseeable future. 

New Mexico Statute 

The petitioners state that the butterfly 

has no State protection, because New 

Mexico does not recognize insects as 

‘‘wildlife.’’ This is correct. We presented 

information about this in the October 7, 

2004, draft Conservation Plan for which 

we invited public comment (69 FR 

60178), and we considered this 

information when we withdrew the 

proposal to list the species. 

Conservation Plan 

We signed a Memorandum of 

Understanding with the Village of 

Cloudcroft, Otero County, and the 

USFS, and cooperatively developed a 

Conservation Plan (Service et al. 2005). 

The Memorandum of Understanding 

demonstrates the parties’ good-faith 

efforts to identify and undertake 

protective measures for the butterfly and 

its habitat, and it refers to the 

implementation schedule for specific 

actions, including time and cost 

estimates and responsible partners, 

named in the Conservation Plan to be 

undertaken to achieve its goals. The goal 

of the Conservation Plan is to provide 

conservation and management on public 

and private lands within the range of 

the butterfly (69 FR 60178; October 7, 

2004). 

Otero County has completed one of 

the conservation measures, amending its 

subdivision ordinance, which requires 

that, for any new subdivision to be 

developed within potential butterfly 

habitat, a survey be conducted for the 

butterfly, its habitat, and its larval host 

plant. 

The USFS is committed to continue 

the implementation of the Conservation 

Plan (USFS 2009a, p.1), which it has 

been implementing for the past 4 years. 

The Conservation Plan called for a 

variety of measures that the USFS 

would implement to reduce impacts to 

the butterfly, including: (1) Managing 

domestic livestock and controlling of 

trespass livestock; (2) managing public 

recreation; (3) protecting the butterfly 

from the threat of collection; (4) using 

best management practices during 

projects; and (5) protecting and 

managing butterfly habitat. We relied in 

this finding on these measures because 

the USFS has demonstrated that these 

conservation efforts are being 

implemented and that they are effective. 

Therefore, we were not required to 

analyze them under the Service’s Policy 

for Evaluation of Conservation Efforts 

When Making Listing Determinations 

(68 FR 15100; March 28, 2003) (PECE). 

We did not rely on other conservation 

efforts identified in the Conservation 

Plan if they have not yet been fully or 

reliably implemented because it would 

require us to speculate on the certainty 

of their implementation and 

effectiveness. These efforts are 

concentrated on conducting research to 

fill in information gaps. These include 

determining the duration of larval 

diapause, investigating the influence of 

fire on butterfly habitat, and 

determining whether planting host 

plants influences butterfly occupancy 

(Service et al. 2005, pp. 56-59). 

Therefore, we did not analyze those 

particular conservation efforts as they 

relate to PECE. Other conservation 

measures, investigating the influence of 

grazing on butterfly habitat and 

analyzing the genetics of the butterfly, 

are ongoing, while another—evaluating 

the effectiveness of transplanting 


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butterflies to augment or expand the 

range of the species—will be conducted 

in the near future (for example, 

McIntyre 2005, Ryan 2007, 2009). 

We continue to support the 

implementation of the Conservation 

Plan and believe it has assisted in 

further improving the status of the 

butterfly and its habitat. For example, 

we have held two meetings with the 

implementation team for the 

Conservation Plan and provided 

technical assistance on actions proposed 

by team members (for example, 

avoidance of impacts from proposed 

insecticide spraying). The USFS has 

continued to allocate resources towards 

conservation efforts and coordinated 

with all parties involved with the 

conservation of the butterfly (USFS 

2009a). Otero County passed the 

subdivision ordinance and, similarly, 

requested technical assistance on 

minimizing impacts with spraying of a 

forest insect outbreak (see E. Other 

Natural or Manmade Factors Affecting 

the Species’ Continued Existence). 

Private Lands 

Beyond the Otero County subdivision 

ordinance, we are not aware of any 

specific prohibition on private lands to 

limit or avoid the destruction of the 

butterfly and its habitat. Half of the 

butterfly habitat is in private ownership. 

However, there are no data available 

that would allow us to make a 

conclusion concerning the quality of 

butterfly habitat on these private lands. 

The status of the butterfly on private 

lands is essentially unknown because 

access is controlled. The only available 

data concerning private lands are the 

approximations of the amount of habitat 

potentially available (USFS 2004a). 

Although there is a potential for the 

current and future management of these 

lands to affect the butterfly or its food 

plants, we lack specific information on 

how a lack of protection on private 

lands threatens the butterfly. As noted 

under Factor A (Present or Threatened 

Destruction, Modification, or 

Curtailment of the Species’ Habitat or 

Range), we do not believe that private 

property development is a significant 

threat to the butterfly currently or in the 

foreseeable future. We have no 

information on threats to populations of 

the butterfly on private lands, but land 

uses likely include private property 

development; some recreational use; 

small-scale habitat impacts in relation to 

roads, powerlines. and waterlines; 

livestock grazing; fire suppression; and 

perhaps noxious weed eradication. 

Moreover, it is likely that some level of 

habitat loss has already occurred on 

private lands and will occur in the 

foreseeable future. Nevertheless, this 

amount of loss is not thought to be a 

significant threat to the butterfly or its 

habitat on private lands, given that the 

butterfly continues to persist on the 

adjacent public lands managed by the 

USFS, where these potential impacts do 

not significantly affect the species. 

There are few regulatory mechanisms 

in place on private lands address the 

conservation of the butterfly or its 

habitat, although, as described below, a 

lack of protection should not affect the 

ability of the species to persist on 

private lands currently or in the future. 

As noted under Factor E (Other Natural 

or Manmade Factors Affecting the 

Species’ Continued Existence), a 

minimal amount of insecticide spraying 

from the ground recently occurred on 

adjoining forested lands, and a small 

number of butterflies may have been 

affected if the spray drifted from the 

targeted forest into nearby meadows and 

directly contacted the butterflies. 

However, we concluded under Factor E 

that such spraying will only affect such 

a small amount of occupied butterfly 

habitat that it does not threaten the 

butterfly with future endangerment. If 

ground or aerial application of 

insecticides results in large contiguous 

blocks of occupied habitat being 

affected during the active period of the 

butterfly, these applications would be 

considered a significant threat. 

However, as discussed under Factor E, 

given the recent resolution of a threat 

from spraying through requests from 

Otero County and USFS for technical 

assistance from the Service, we believe 

that the timing of spraying and areas 

sprayed in the forests will be adequately 

controlled so the butterfly will not be 

threatened with endangerment. This is 

because the high cost of effective aerial 

spraying will drive private landowners 

and developers to combine such efforts 

on private lands with USFS efforts on 

USFS lands. Under such a scenario, the 

butterfly would be considered and 

analyzed within NEPA conducted by 

the USFS, which is what happened 

during the recent spraying of forest 

insects with Bacillus thuringiensis var. 

kurstaki (Btk) in 2007 (USFS 2007). 

Although we would be concerned 

about the loss or alteration of large 

contiguous blocks of butterfly habitat on 

private lands, we have no information to 

indicate that such loss has occurred or 

will occur in the foreseeable future, nor 

whether any the loss of butterflies from 

activities on private lands has affected 

or will negatively affect the overall 

ability of the species to persist currently 

or in the future. Therefore, we find the 

butterfly is not threatened by a lack of 

regulatory mechanisms on private lands 

at present or in the foreseeable future. 

In summary, the butterfly currently 

receives adequate regulatory protection 

through the USFS sensitive species 

designation and the commitments 

provided in the Conservation Plan. We 

did not find that lack of State regulatory 

authority threatens the butterfly, 

because the USFS, the land management 

agency with authority over half of the 

butterfly’s range, has instituted 

proactive protective measures by 

analyzing potential impacts through the 

NEPA process and by fulfilling the 

commitments in the conservation plan. 

On the basis of our review, we find 

similar protections will be implemented 

in the future under a revised LRMP. 

Their practices have included measures 

to either avoid impacts or to survey and 

move the species prior to habitat 

disturbance. We believe take at a level 

consistent with prior levels will not 

cause a decline in the species or affect 

its future viability such that impacts 

resulting from actions within occupied 

habitat constitute a significant threat to 

the species on USFS or private lands. 

There are few regulatory mechanisms in 

place on private lands that specifically 

target the conservation of the butterfly 

or its habitat, yet we believe this has not 

and will not affect the overall ability of 

the species to persist on private lands 

currently or in the future. In light of this 

information, we conclude that adequate 

regulatory mechanisms exist now and 

will continue into the foreseeable 

future. 

E. Other Natural or Manmade Factors 

Affecting the Species’ Continued 

Existence 

Insecticide Spraying 

The petition asserts that control of 

pest insects, climate change, and 

extreme weather threaten the butterfly 

under Factor E. The petitioners 

requested that we emergency-list the 

butterfly due to the perceived 

immediate threat to the butterfly’s 

continued existence from a proposed 

aerial spraying in the autumn of 2007 of 

the naturally occurring bacterium 

Bacillus thuringiensis var. kurstaki (Btk) 

to control a fir looper moth (Nepytia 

janetae). However, as explained below, 

we determined that the potential 

spraying did not warrant emergency 

listing. 

During summer and autumn 2007, 

Otero County and the USFS requested, 

and we provided, technical assistance 

on appropriate measures to minimize or 

avoid impacts to the butterfly (USFS 

2007c; Otero County 2007a, 2007b). We 

advised them that mortality from the 


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application of Btk could be significant if 

it was applied when larvae of the 

butterfly were actively feeding (Service 

2007a, 2007b, 2007c, 2007d, 2007e, 

2007f). The USFS conducted an 

environmental assessment under NEPA 

that analyzed the effects to private and 

Federal lands of Btk spraying on Federal 

lands (USFS 2007d, 2007f, 2007d). 

Following that environmental 

assessment, the USFS, the Village of 

Cloudcroft, and Otero County waited to 

spray Btk on 1,788 ha (4,419 ac) of forest 

to control the fir looper until they and 

the Service determined from surveys 

that the larvae of the butterfly were in 

diapause (inactive and not feeding) 

(USFS 2007e, 2007g; Service 2007g, 

2007h). Surveys confirmed that larvae of 

the butterfly were in diapause prior to 

spraying of Btk on November 5, 2007 

(USFS 2007e, 2007h, Service 2007g). 

Btk is sensitive to sunlight, usually 

becoming inactive within 7 to 10 days 

after application (USFS 2007f, p. 30). 

Therefore, Btk would have been inactive 

when larvae of the butterfly emerged 

from diapause in the spring of 2008. Btk 

is activated by the alkaline condition of 

the mid-gut of larvae that ingest it. 

Consequently, larvae must ingest Btk for 

the bacteria to be toxic. Post-treatment 

surveys conducted at six localities 

during July 2008, found no difference in 

abundance of adult butterflies when 

compared with pre-treatment surveys in 

July 2007 (McIntyre 2008, p. 1). This 

indicates that butterflies survived the 

spraying of Btk during November 2007, 

and the spraying of forest insects did 

not measurably affect the butterfly. Postspraying monitoring in the autumn of 

2007 determined that the fir looper 

population had declined to nearly 

undetectable levels on the Forest and 

adjacent lands (Anderson 2008). 

Therefore, the USFS concluded that no 

spraying was needed during March 2008 

(Anderson 2008). 

As described under Factor D 

(Inadequacy of Existing Regulatory 

Mechanisms), the butterfly is 

considered a sensitive species of under 

the 2000 USFS planning rule (USFS 

2009l). Therefore, any future proposed 

insect treatment by the USFS would 

undergo an analysis of the potential 

impacts under NEPA and would follow 

the applicable LRMP. This analysis 

would ensure that any insect spraying 

being contemplated would be consistent 

with the specific guidelines and 

standards for the butterfly under the 

current or a future revised LRMP. We 

note that the Conservation Plan 

provided the framework under which 

the USFS and Otero County requested 

and received technical assistance on the 

avoidance of impacts to the butterfly. 

Through this framework and subsequent 

dialog, the USFS carefully chose the 

timing of Btk application to specifically 

avoid larvae of the butterfly (USFS 

2008h, p. 34). We found that this 

process successfully avoided impacts to 

the butterfly. Based principally on 

information related to the spraying of 

insecticides that occurred during 

November 2007 on USFS and private 

lands and the LRMP standards and 

guidelines, we believe the framework of 

the Conservation Plan and applicable 

NEPA analysis will ensure that, if any 

future insect control efforts are 

proposed, effects to the butterfly will be 

minimized. 

The petitioners state that insect 

control from the ground on private 

lands was conducted within the Village 

of Cloudcroft. Newspaper articles 

provided by the petitioners substantiate 

that spraying of Confirm 2F was used on 

an area of private land in June of 2007. 

In the proposed rule (66 FR 46575; 

September 6, 2001), we estimated that 

there were about 4 ha (10 ac) of 

potentially suitable butterfly habitat 

within a private development on the 

east side of the Village of Cloudcroft. 

From information we have, we believe 

this private development is the same 

area sprayed with Confirm 2F. It is 

unknown how much of the potentially 

suitable butterfly habitat was sprayed, 

because no further information is 

available. It is unlikely that all of the 4 

ha (10 ac) of potentially suitable 

butterfly habitat were sprayed, because 

insect control was targeting the fir 

looper within the adjoining mixed 

conifer forest, whereas the butterfly is 

found within open meadow habitat. If 

we assume a worst-case scenario (that 

drift from the spray affected all of the 4 

ha (10 ac) of potentially suitable 

butterfly habitat within this area), 

impacts would be less than 0.4 percent 

of the suitable butterfly habitat (4 of 

1,096 ha (10 of 2,709 ac)). In relation to 

the species’ range, this would not be 

considered a significant impact affecting 

the future viability of the species and, 

therefore, does not rise to the level of 

being a threat. 

If future small, ground applications of 

insecticide spraying (such as Btk) occur 

on private forested lands, impacts could 

similarly occur to the butterfly from 

drift. Spraying meadows would be 

ineffective for the control of forest 

insects and a waste of landowner or 

developer money. It is unlikely that 

such ground applications would be 

implemented on a large enough scale to 

be effective in controlling a severe 

outbreak of a forest insect pest, 

suggesting that ground applications are 

not likely to affect a significant 

proportion of occupied butterfly habitat. 

Nevertheless, if ground or aerial 

application of Btk or other insecticide 

results in large contiguous blocks of 

occupied habitat being affected during 

the active period of the butterfly, 

insecticide spraying would be 

considered a significant threat that 

would cause the species to become 

endangered in the foreseeable future. 

However, given the recent resolution of 

a threat from insecticide spraying 

through requests for technical assistance 

from Otero County and USFS, we 

believe that concerns over the viability 

of the butterfly would weigh strongly in 

any decision to control forest insects. 

Moreover, we believe it is unlikely that 

large contiguous blocks of butterfly 

habitat would be sprayed for forest 

insects on private lands without 

combining such efforts with the USFS. 

Insect control of such a magnitude 

could only be achieved through aerial 

spraying; the cost of such efforts 

averages from 15 to 50 dollars per acre 

(0.4 ha) (Wisconsin Department of 

Natural Resources 2009, p. 6; Park 

Ridge, Illinois 2008), which, over 

several hundred acres, may be 

prohibitive for private landowners, 

unless they work with USFS. Under this 

scenario, the butterfly would be 

considered and analyzed within NEPA 

conducted by the USFS. In fact, this is 

what transpired during the recent 

spraying of Btk in 2007 (USFS 2007). 

Although we do not anticipate future 

forest insecticide spraying on private 

lands to be at a scale that would cause 

the butterfly to become endangered, we 

recognize there are currently no 

mandatory requirements to minimize 

impacts to the butterfly if spraying was 

to occur on private lands. Hence, we 

encourage the Village of Cloudcroft and 

Otero County to intervene with any 

private landowner that might 

contemplate spraying an outbreak of 

forest insects on their land and request 

assistance from us under the auspices of 

the Conservation Plan. A request for 

technical assistance may be even more 

likely, given that the previous spraying 

of forest insects generated a variety of 

press releases from the USFS and 

newspaper articles by local press 

(Anderson 2008; Associated Press 2007; 

USFS 2007d, 2008). As discussed under 

Factor D (Inadequacy of Existing 

Regulatory Mechanisms), the Village of 

Cloudcroft and Otero County have a 

history of requesting assistance from the 

Service to avoid impacts to the butterfly 

when they consider spraying for the fir 

looper on private lands, and we have 

provided that assistance. Although past 

requests for assistance do not guarantee 


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future requests, they demonstrate a 

willingness by the Village of Cloudcroft 

and Otero County to do so. As described 

below, the fir looper population has 

declined (USFS 2008g, pp. 1-2), and we 

do not have any information to indicate 

that spraying to control future insect 

outbreaks will occur or that the process 

followed in 2007 to minimize impacts 

from spraying would not be followed. 

We are not aware of any information 

that demonstrates the butterfly is 

threatened now or in the foreseeable 

future from the spraying of Btk or other 

insecticide. 

Alternatively, a NEPA analysis is not 

required for non-Federal agency 

spraying on private lands, which 

comprise about half of the butterfly’s 

suitable habitat; we do not know how 

much of that suitable habitat on private 

lands is actually occupied by the 

butterfly. As described above, 

landowner spraying on private lands 

has the potential to affect the butterfly. 

We acknowledge that if Btk or chemical 

insecticides, such as Carbaryl or 

Confirm 2F, are applied over large areas 

when larvae of the butterfly are actively 

feeding, insect control would pose a 

serious threat by potentially killing large 

numbers of the butterfly if the spray 

occurred within significant amounts of 

occupied habitat. As discussed above, if 

large-scale spraying occurs in the future, 

it is unlikely it would occur without 

requiring the USFS to consider and 

analyze the effects to the butterfly under 

NEPA. It is unknown how much of the 

potentially suitable or occupied 

butterfly habitat could be inadvertently 

sprayed because no information is 

available on the probability of future 

forest insect outbreaks. However, the 

Conservation Plan provided the 

framework under which Otero County 

requested and received technical 

assistance on the avoidance of impacts 

to the butterfly. One conservation action 

agreed to in the Conservation Plan was 

for the Service to provide technical 

assistance on management of the 

butterfly when requested. Beyond the 

impacts from spraying on private lands 

detailed above, this process avoided 

impacts on the vast majority of butterfly 

habitat on private lands. 

As described in the withdrawal of the 

proposed rule (69 FR 76428) and in the 

discussion above, the USFS has 

continued efforts to reduce the risk of 

wildfire. As a result, the probability of 

bark beetle outbreaks will be greatly 

reduced (USFS 2004k, p. 2). Although it 

is likely that periodic insect outbreaks 

will occur within the range of the 

butterfly (e.g., see: Logan et al. 2003; 

Logan and Powell 2005; USFS 2008h), 

we have no information to evaluate the 

potential for impacts due to spraying of 

forest insects with Btk or other 

insecticide on USFS or private lands 

because the duration and extent of 

insect outbreaks cannot be easily 

predicted (e.g., see Logan et al. 2003, p. 

133; USFS 2009j, p. 3; Fellin and Dewey 

1992, p. 1). For example, the recent 

outbreak of fir looper was the first 

outbreak in New Mexico attributed to 

this species (USFS 2007c, p. 25). Insect 

outbreaks occur when conditions favor 

an insect population expanding beyond 

the control of its natural enemies. These 

enemies may include parasitic flies and 

wasps, disease, and predators. Natural 

enemies are generally the primary cause 

of the collapse of a defoliating insect 

outbreak; however, Btk or other 

insecticides are sometimes used to 

expedite the collapse (USFS 2007f). As 

an example, parasites were responsible 

for the collapse of the short-lived 

Douglas-fir tussock moth outbreak on 

the Sacramento District in 2001 and 

likely partially responsible for the 

collapse of the fir looper by 2008 (USFS 

2007f, p. 25; 2008). Moreover, at least 

five other forest insect pests have been 

documented in recent years on the 

Lincoln National Forest (USFS 2007f, p. 

26; 2008h, p. 27), but it is unknown 

whether any of these will cause an 

outbreak of such magnitude that insect 

control would be considered. In our 

review of the recent insect-pest outbreak 

and spraying to control forest insects, 

we found no other reports of 

documented spraying. While we 

acknowledge spraying of insecticides 

has the potential to impact the butterfly 

if it is conducted within occupied 

habitat, we have no knowledge or 

information to assess the potential for 

insect outbreaks and the possibility of 

spraying now or in the future. 

Climate Change 

The petition asserts that climate 

change is likely a greater threat to the 

butterfly than was previously 

considered by the Service. The 

petitioners assert that scientific 

information not considered in, or 

published subsequent to, the 2004 

withdrawal indicates that the impact of 

climate change will be especially severe 

in New Mexico and the southwestern 

United States. They cite a State of New 

Mexico website, which states that the 

impacts of climate change and climate 

variability on the environment include 

the potential for prolonged drought, 

severe forest fires, warmer temperatures, 

increased snowmelt, and reduced snow 

pack (http://www.nmclimatechange.us/ 

background-impacts.cfm). The 

petitioners also note that harm from 

climate change to butterflies has been 

particularly well documented for other 

species of checkerspot butterflies. 

The petitioners cite Parmesan (1996) 

to support their claim that the butterfly 

will be imperiled by climate change. 

Parmesan (1996, p. 765) documented a 

range shift due to population 

extinctions in the non-migratory Edith’s 

checkerspot butterfly (Euphydryas 

editha), a related species, in western 

North America and presented arguments 

on why the shift was attributable to 

climate change. The petition correctly 

indicates that Penstemon 

neomexicanus, the only plant on which 

the Sacramento Mountains checkerspot 

butterfly has been found to lay eggs, is 

known within portions of the Capitan 

Mountains, which are adjacent to and 

north of the current range of the 

butterfly in the Sacramento Mountains. 

The petition asserts that a slight shift in 

either the butterfly’s or P. 

neomexicanus’ distribution, 

productivity, phenology, or other factors 

resulting from climate change could 

imperil the butterfly. The apparent 

northward range ‘‘shift’’ in the Edith’s 

checkerspot butterfly was due to greater 

population extinctions at southern 

latitudes, not to a northward expansion 

of its range (Parmesan 1996, p. 765). 

Parmesan (1996, pp. 765-766) discussed 

why these extinctions were most likely 

attributable to climate change rather 

than habitat destruction. If the butterfly 

were to respond similarly, it may 

decline at the southern portion of its 

range, but not expand northward to the 

Capitan Mountains. However, as 

described below, we have little 

information to accurately predict or 

assess how the butterfly or its food 

plants will respond to a changing 

climate. 

According to the Intergovernmental 

Panel on Climate Change (IPCC) (2007), 

‘‘Warming of the climate system is 

unequivocal, as is now evident from 

observations of increases in global 

average air and ocean temperatures, 

widespread melting of snow and ice, 

and rising global average sea level.’’ For 

the next two decades a global warming 

of about 0.2 °C (0.4 °F) per decade is 

projected (IPCC 2007). Afterwards, 

temperature projections increasingly 

depend on specific emission scenarios 

(IPCC 2007). Various emissions 

scenarios suggest that by the end of the 

21st century, average global 

temperatures are expected to increase 

0.6 °C to 4.0 °C (1.1 °F to 7.2 °F), with 

the greatest warming expected over land 

(IPCC 2007). Localized projections 

suggest the Southwest may experience 

the greatest temperature increase of any 

area in the lower 48 States (IPCC 2007). 

The IPCC states it is very likely that 


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extreme high temperatures, heat waves, 

and heavy precipitation will increase in 

frequency (IPCC 2007). Because the 

butterfly occupies a relatively small area 

of specialized habitat, it may be 

vulnerable to climatic changes that 

could decrease suitable habitat or alter 

food plant seasonal growth patterns 

(phenology). However, while it appears 

reasonable to assume that the butterfly 

may be affected, as detailed below, we 

lack sufficient certainty to know 

specifically how climate change will 

affect the subspecies. 

Parmesan (2009, p. 2) noted that the 

relationship between climate and 

survival is driven more by the indirect 

effects of seasonal growth patterns of 

host plants and the life cycle of Edith’s 

checkerspot than by the direct effects of 

temperature and precipitation. 

However, predicting seasonal growth 

patterns of butterfly host plants is 

complicated, because these patterns are 

likely more sensitive to moisture than 

temperature, which is predicted to be 

highly variable and uncertain, 

especially for the southwestern United 

States (Bale et al. 2002, p. 11; Archer 

and Predick 2008, p. 2; Enquist and Gori 

2008, pp. 16, 30; New Mexico Agency 

Climate Change Technical Work Group 

2005, p. 7). Uncertainty about climate 

change does not mean that impacts may 

or may not occur; it means that the risks 

of a given outcome are difficult to 

quantify or accurately predict (New 

Mexico Agency Climate Change 

Technical Work Group 2005). The 

interplay between host plant 

distribution, larval and adult butterfly 

dispersal, and female choice of where to 

lay eggs will ultimately determine the 

population response to climate change 

(Parmesan 2009, p. 3). However, 

determining the long-term responses to 

climate change from even well-studied 

butterflies in the genus Euphydryas is 

unclear, given their ability to switch to 

alternative larval food plants in some 

instances (Parmesan 2009, p. 3; Hellman 

2002, p. 933; Singer et al. 2007, pp. 312- 

319; Singer and Thomas 1996, pp. S33- 

34). Attempts to analyze the interplay 

between climate and host plant growth 

patterns using predictive models or 

general State-wide assessments and to 

relate these to the butterfly are equally 

complicated. Despite the potential for 

future climate change in the Southwest, 

as discussed above, we have not 

identified nor are we aware of any data 

on an appropriate scale to evaluate 

habitat or populations trends for the 

butterfly or the Sacramento Mountains 

or to make predictions on future trends 

and whether the species will be 

significantly impacted. 

During the active season of 

prediapause larvae (late summer to early 

fall), the species Euphydryas anicia 

feeds primarily on plants of the family 

Scrophulariaceae, including species of 

Castilleja and Penstemon (Robinson et 

al. 2009, pp. 1-9). Although the USFS 

and others have conducted surveys and 

monitored the butterfly, the subspecies 

remains poorly studied relative to other 

butterflies in the genus Euphydryas (for 

example, see Ehrlich and Hanski 2004). 

We believe that the larvae of this 

subspecies currently use the food plants 

P. neomexicanus and V. edulis (Service 

et al. 2005, pp. 9-11). We have no 

information that indicates the degree to 

which, if any, the butterfly uses other 

plants in the Scrophulariacea or 

Plantaginaceae family. In fact, there 

have been no published studies on food 

plant preference or use for the butterfly. 

However, alternative food plant use is 

not only possible, but probable given 

that many checkerspot populations in 

western North America use two or more 

larval host plants (Ehrlich and Hanski 

2004, p. 270; Singer and Wee 2005, p. 

350), and this species has already been 

found to eat other food plants in 

captivity. For example, Pratt (2008, p. 1) 

reared larvae on P. gloxinoides, whereas 

Ryan (2009, pers. comm.) reared them 

on a commercially available Penstemon 

sp. Hutchins (1974, pp. 424-437) 

reported that almost 40 species of plants 

in the Scrophulariacea family occur in 

the region. Additionally, shifts to new 

or alternative food plants have been 

documented in related species, allowing 

them to colonize new habitat and 

increase survival of larvae (Singer and 

Thomas 1996; Hanski and Singer 2001). 

Available information suggests that if 

climate change disrupts seasonal growth 

patterns of food plants, it is conceivable 

that the butterfly may use alternative 

food plants that occur within its range 

(Service et al. 2005, p. 38). Nevertheless, 

we have no information indicating the 

likelihood that any of these changes will 

occur in the foreseeable future. 

We also have no data on the overlap 

of seasonal growth patterns between P. 

neomexicanus and the butterfly. No one 

has monitored the timing of the lifecycle 

of the butterfly relative to their host 

plants, P. neomexicanus or V. edulis, 

nor how each responds to extreme 

weather events (drought, late frosts, or 

storms). Parmesan (2007, p. 1869) has 

reported that a lifecycle mismatch can 

cause a shortening of the time window 

available for larval feeding, causing the 

death of those individuals unable to 

complete their larval development into 

the shortened period. Still, a high 

proportion of the butterflies Parmesan 

(2007 p. 1869) studied fed on annual 

host plants whose emergence and 

desiccation are likely more closely 

linked to annual precipitation patterns 

than P. neomexicanus, which is a 

perennial, generally living for 2 years or 

longer (NMRPTC 2005, p. 1). We are not 

yet capable of making meaningful 

predictions on whether climate 

variability (such as higher temperatures 

or drier conditions) will influence P. 

neomexicanus’s life cycle such that it is 

out of sequence with the butterfly’s 

larval development (for example, see 

Parmesan 2007, p. 1869; Service et al. 

2005, pp. 36-38). Without these data, it 

remains unclear how climate change 

will affect the long-term viability of the 

butterfly. 

Predicting future population 

dynamics and distributions is even 

more complex for such animals as 

butterflies that have two very different 

physiological stages (larva and adult) 

(for example, see Bale et al. 2002, p. 5). 

Moreover, forecasting the responses of 

butterflies and other insects to elevated 

temperatures or decreased precipitation 

is largely based on field and laboratory 

studies (Hellmann 2002, pp. 927-929). 

However, the relationship between 

these changing environmental 

conditions and the butterfly has not 

been studied. Likewise, we have no 

survey data from the presumed northern 

end of the butterfly’s range. For 

example, we currently do not know 

whether the immediately adjacent lands 

of the Mescalero Apache Tribe are 

occupied by the butterfly. The host 

plant for the butterfly occurs south of 

the current range of the species and to 

the north in parts of the Sacramento 

Mountains and into the Capitan 

Mountains, about 40 to 80 kilometers 

(25 to 50 miles) north of the current 

range of the butterfly (Hutchins 1974, 

pp. 434-435; USFS 2000 pp. 11-12, 19- 

21). This suggests that the host plants 

also may be found in some areas of the 

intervening Tribal lands. Given the 

similarity in habitat and elevation and 

the close proximity between Tribal and 

USFS lands, some of the area may be 

occupied by the butterfly. 

We have identified no reports of 

apparent habitat, food plant, or 

population changes of the butterfly 

related to climate change in New 

Mexico. Moreover, there is a lack of any 

real-time data on the relationship 

between temperature or precipitation 

trends and the butterfly or its food 

plants (Service et al. 2005, p. 38). We 

have no specific information on how the 

butterfly will react to a changing 

climate, either an increase in 

temperature or the increasing variability 

of precipitation. For this reason, the 


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effect of higher temperatures and the 

unpredictability of extreme weather and 

precipitation on the distribution and 

abundance of the butterfly remains 

unknown. 

Because larvae of the butterfly are 

closely tied to their food, the 

distribution of these plants defines the 

potential distribution of the species. The 

ability of larvae to move, in conjunction 

with host plant availability, can lessen 

the potential effects of climate change 

(for example, see Hellmann 2002). For 

example, some species of butterflies 

may expand their geographical ranges 

northward or upward elevationally (e.g., 

see Parmesan 1996; Parmesan et al. 

1999). If the butterfly moves northward 

from its current range or higher in 

elevation, similar to some documented 

range shifts by other species in the 

genus Euphydryas, suitable habitat may 

be present. For example, adjacent 

contiguous areas are available 

northward on lands owned by the 

Mescalero Apache Tribe. Alternatively, 

only 3.2 km (2 mi) south of the 

butterfly’s current range, potential 

higher elevation (over 2,750 m (9,000 

ft)) habitat that contains the foodplants 

of the butterfly are available (Service 

2009). However, we do not have 

information to predict how the climate 

will change in the range of the butterfly, 

and we do not know how any change 

may alter the range of the species. 

As described above, it is likely that 

insect pest outbreaks will occur within 

the range of the butterfly, although we 

do not know whether any insect control 

would be considered. Nevertheless, 

climate change may contribute to the 

proliferation of some forest pest insects, 

which can lead to defoliation and forest 

die-back in some areas (Easterling et al. 

2007, p. 290; Enquist et al. 2008, p. 2; 

USFS 2008g, p. 1). Insect outbreaks in 

response to the recent drought in the 

southwest (e.g., Enquist et al. 2008, pp. 

2, 13) may exemplify this type of 

climate-related event. Elevated moisture 

stress from drought in southwestern 

forests and woodlands has been shown 

to amplify the effects of insect outbreaks 

and fire, in addition to increasing the 

risk of large-scale forest die-back events 

(Breshears et al. 2005, Westerling et al. 

2006). These disturbances are expected 

to increase. One of the recent insect 

outbreaks in the Sacramento Mountains 

may lead to a short-term increase in the 

amount of potential butterfly habitat. 

For example, portions of the mixed 

conifer forest in the Sacramento 

Mountains of New Mexico have 

experienced defoliating insect outbreaks 

since 2002 (USFS 2008e, p. 1). An 

infestation of the forest insect species 

tussock moth (Orgyia pseudotsugata), 

western spruce budworm 

(Choristoneura occidentalis), New 

Mexico fir looper (Galenara consimilis), 

and a looper species, Nepytia janetae 

(no common name) resulted in 

approximately 5,868 ha (14,500 ac) of 

forest defoliation (USFS 2008e, p. 1). 

Within this area, tree mortality will 

average about 50 percent (USFS 2008e, 

p. 2). The insects primarily defoliated 

Pseudotsuga menziesii (Douglas-fir) and 

Abies concolor (white fir), but Pinus 

strobiformis (southwestern white pine), 

Picea engelmannii (Englemann spruce), 

and Pinus ponderosa (ponderosa pine) 

were also affected (USFS 2008e, p. 2). 

About 227 ha (570 ac) of occupied 

butterfly habitat is interspersed or 

adjacent to the defoliated areas of the 

mixed conifer forest (USFS 2008e, p. 

41). Penstemon neomexicanus and other 

forbs or grasses will likely respond in 

the coming years to the increased 

available sunlight within areas 

containing a high percentage of dead 

trees. As a result, P. neomexicanus and 

Helenium hoopesii may spread into 

these adjacent areas, thereby increasing 

the connectivity between patches of 

occupied butterfly habitat or increasing 

the overall amount of potential butterfly 

habitat. We intend to the monitor these 

areas to determine how the butterfly 

responds to these changes. 

In summary, we have identified and 

reviewed relevant information on the 

butterfly and climate change. We 

acknowledge the potential for climate to 

change in the Southwest and, thus, 

within the range of the butterfly. 

However, as discussed above, there is a 

great amount of uncertainty with respect 

to the potential impact on the butterfly 

or its food plants. No specific data on 

the seasonal growth patterns and 

overlap between the food plants or 

butterfly larvae are available. The ability 

of other butterfly species in the same 

genus to switch food plants has been 

documented. The response of this 

species to suitable habitat that may be 

created in the future by climate change 

is unknown. Weather and climate, 

particularly precipitation, are highly 

unpredictable within the range of the 

species. Multiple hypothetical outcomes 

associated with climate change could 

potentially affect butterfly habitat. 

However, unlike documented declines 

in other species in the genus 

Euphydryas (e.g., Parmesan 1996, 2006), 

we lack predictive models on how 

climate change will affect butterfly 

habitat. Given that reliable, predictive 

models have not been developed for use 

at the local scale in New Mexico’s 

Sacramento Mountains, currently there 

is little certainty regarding the timing, 

magnitude, and net effect of impact. It 

is possible that the butterfly may be 

vulnerable to climate change; however, 

we cannot reliably predict effects of 

climate-induced changes given the large 

number of unknowns and the current 

limitations in available data and climate 

models. Based on the best available 

information and our current knowledge 

and understanding, we find that the 

effects related to climate change will not 

result in significant impacts to the 

butterfly now or in the foreseeable 

future. Although, we conclude that 

climate change is not a threat to the 

butterfly, we intend to continue 

surveying and monitoring the butterfly 

population. 

The petition asserts that extreme 

weather threatens the butterfly. 

However, other than reiterating our 

preliminary finding from the 2001 

proposed listing rule (66 FR 46575; 

September 6, 2001) that this may be a 

threat to the species, the petition 

presents no information or explanation 

regarding why the butterfly is 

threatened as a result of extreme 

weather. In our 2004 proposed listing 

withdrawal, we found that the butterfly 

can survive and persist despite natural 

events such as drought (69 FR 76428; 

December 21, 2004). Since our finding 

in that 2004 withdrawal, we have no 

new information indicating that there is 

any such threat from extreme weather 

currently or in the foreseeable future. 

Foreseeable Future 

The Act does not define the term 

‘‘foreseeable future.’’ However, in a 

January 16, 2009, memorandum 

addressed to the Acting Director of the 

U.S. Fish and Wildlife Service, the 

Office of the Solicitor, Department of 

the Interior, concluded, ‘‘* * * [As] used 

in the [Act], Congress intended the term 

‘foreseeable future’ to describe the 

extent to which the Secretary can 

reasonably rely on predictions about the 

future in making determinations about 

the future conservation status of the 

species.’’ In discussing the concept of 

foreseeable future for the butterfly, we 

considered: (1) The biological and 

demographic characteristics of the 

species (such as generation times, 

persistence of current populations); (2) 

our ability to predict or extrapolate the 

effects of threats facing the butterfly into 

the future; and (3) the relative 

permanency or irreversibility of these 

threats. 

Although we did not find any 

information to allow us to reliably 

predict that threats would increase 

significantly in the future, predicting 

and managing for the effects of potential 

future threats will be facilitated by the 


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Conservation Plan and Memorandum of 

Understanding among the Service, 

USFS, Otero County and Village of 

Cloudcroft that are in place and cover 

the butterfly rangewide (see 

Conservation Plan section under Factor 

D). Monitoring of butterfly population 

numbers and habitat conditions by the 

USFS is included in the Conservation 

Plan and any significant decreases in 

butterfly numbers or habitat conditions 

should be identified and effectively 

mitigated by the Service providing 

technical assistance to the USFS, Otero 

County, and the Village of Cloudcroft. 

The Memorandum of Understanding 

and Conservation Plan will be in place 

and operating until the tasks identified 

in the Conservation Plan are 

successfully completed, after which the 

Memorandum of Understanding can be 

renewed, modified, or terminated. The 

Memorandum of Understanding can be 

terminated by mutual concurrence of all 

parties, but because the Conservation 

Plan has been successfully implemented 

for 4 years through agreement in the 

Memorandum of Understanding, we 

have no reason to believe it will be 

terminated. Most of the tasks identified 

in the Conservation Plan are expected to 

be completed within 15 to 20 years and 

some will be ongoing. We find this to 

be a reasonable timeframe for 

considering the foreseeable future. 

Significant Portion of the Range 

The Act defines an endangered 

species as one ‘‘in danger of extinction 

throughout all or a significant portion of 

its range,’’ and a threatened species as 

one ‘‘likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range.’’ The term ‘‘significant portion 

of its range’’ is not defined by the 

statute. For the purposes of this finding, 

a significant portion of a species’ range 

is an area that is important to the 

conservation of the species because it 

contributes meaningfully to the 

representation, resiliency, or 

redundancy of the species. The 

contribution must be at a level such that 

its loss would result in a decrease in the 

ability to conserve the species. 

If an analysis of whether a species is 

threatened or endangered in a 

significant portion of its range is 

appropriate, we engage in a systematic 

process that begins with identifying any 

portions of the range of the species that 

warrant further consideration. The range 

of a species can theoretically be divided 

into portions in an infinite number of 

ways. However, there is no purpose in 

analyzing portions of the range that are 

not reasonably likely to be significant 

and threatened or endangered. To 

identify only those portions that warrant 

further consideration, we determine 

whether there is substantial information 

indicating that (i) The portions may be 

significant and (ii) the species may be in 

danger of extinction there or likely to 

become so within the foreseeable future. 

In practice, a key part of this analysis is 

whether the threats are geographically 

concentrated in some way. If the threats 

to the species are essentially uniform 

throughout its range, no portion is likely 

to warrant further consideration. 

Moreover, if any concentration of 

threats applies only to portions of the 

range that are unimportant to the 

conservation of the species, such 

portions will not warrant further 

consideration. 

We next address whether any portions 

of the butterfly’s range warrant further 

consideration. On the basis of our 

review, we found no geographic 

concentration of threats either on USFS 

or private lands such that the subspecies 

may be in danger of extinction in that 

portion. Although the potential future 

opening of the James Allotment to cattle 

grazing may impact the butterfly and its 

larval food plants to some extent, we 

have found that allotments that are 

grazed by cattle and occupied by the 

species have not resulted in a significant 

threat to the butterfly. Similarly, we 

found that there is no area, either on 

USFS or private lands, within the range 

of the butterfly where the potential 

threat of insecticide spraying may be 

significantly concentrated or may be 

substantially greater than in other 

portions of the range. Therefore, we find 

that these possible actions will also not 

result in the endangerment of the 

butterfly in the foreseeable future within 

this portion or all of its range. The 

factors affecting the species are 

essentially uniform throughout its 

range, indicating that no portion of the 

butterfly’s range warrants further 

consideration of possible threatened or 

endangered status. 

Finding 

In our review of the status of the 

butterfly, we carefully examined the 

best scientific and commercial 

information available. We identified a 

number of potential threats to this 

subspecies, including: Residential and 

commercial property development; 

OHV and other recreational impacts; 

habitat altering projects in relation to 

roads, powerlines, and other small-scale 

impacts; cattle and feral horse grazing; 

wildfire; noxious weeds; butterfly 

collection; lack of regulatory 

mechanisms; insect control; climate 

change; and extreme weather events. To 

determine whether these factors 

individually or collectively put the 

species in danger of extinction 

throughout its range, or are likely to do 

so within the foreseeable future, we first 

considered whether the risk factors 

significantly affected the butterfly, or 

were likely to do so in the future. 

Information on population size and 

trends for the butterfly is limited. The 

overall population size is unknown 

because comprehensive surveys are 

logistically expensive and difficult to 

conduct and have not been conducted. 

Some data are available from periodic 

adult surveys and annual larval surveys, 

but confounding factors, lack of 

replication, and sampling errors limit 

their applicability in evaluating the 

butterfly’s status. Few surveys have 

been conducted and only in small parts 

of its range, and, for this and the other 

reasons listed above, an assessment of 

population trends using these data 

would not be accurate. We can draw no 

conclusions on trend information for the 

butterfly. Notwithstanding these issues, 

based on the best available information, 

we find that the butterfly continues to 

persist within the same general 

localities (USFS 2009a; McIntyre2005, 

2008, Ryan 2007, pp. 11-12). 

As required by the Act, we considered 

the five potential factors to assess 

whether the butterfly is threatened or 

endangered throughout all or a 

significant portion of its range. We 

evaluated existing and potential threats 

on the butterfly to determine what 

effects on the species were currently 

occurring, and whether these impacts 

currently threaten the butterfly or were 

likely to increase or decrease in the 

future. We did not find any current 

significant threats to the butterfly. We 

also considered and found that none of 

these factors were likely to increase 

within the foreseeable future. 

We do not that believe that 

recreational impacts are likely to 

increase in the foreseeable future, 

because the USFS has nearly completed 

reconfiguring their campgrounds to 

reduce their capacity, thereby limiting 

potential conflicts with the butterfly. 

We determined that projects such as 

roads, powerlines, and other small-scale 

disturbances have affected and will 

likely continue to affect the butterfly 

and its habitat, but do not pose a 

significant threat to the subspecies. 

Cattle grazing is being managed by the 

USFS to attain moderate-intensity 

grazing that appears to be compatible 

with the butterfly and its host plants. 

The potential for significant impacts 

from wildfire continue to be reduced 

through the USFS’s thinning and 

prescribed burning program. Moreover, 

the potential for private property 


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development still appears to be low, 

given the scarcity of municipal water 

within the range of the butterfly. The 

potential impact of butterfly 

overcollection continues to be minimal 

due to a butterfly closure order imposed 

by the USFS. We determined that the 

regulatory mechanisms are adequate to 

provide for the protection of the 

butterfly on USFS and private lands. We 

find no reason to conclude that forest 

insect outbreaks similar to the 2007 

event and treatment are likely to 

disappear. Still, although some spraying 

occurred on a small area of private 

lands, we believe that the commitments 

through the 2005 Conservation Plan and 

the process for providing technical 

assistance avoided further impacts to 

the butterfly. We have no reason to 

conclude that this process currently in 

place would change if insecticide 

spraying is proposed in the future. As 

detailed above, we find the butterfly is 

not threatened by a lack of regulatory 

mechanisms on private lands at present 

or in the foreseeable future. Emergency 

listing of the butterfly will always 

remain an option if the magnitude of a 

proposed action is likely to make the 

species become threatened or 

endangered within the foreseeable 

future. 

Climate change is also likely to 

continue for the foreseeable future, but 

there is substantial uncertainty as to 

how climate change, described in Factor 

E, will affect the butterfly or its habitat. 

The uncertainty associated with the 

information we reviewed does not 

permit us to make an accurate 

prediction whether climate change will 

affect the future viability of the 

subspecies. We also have no new 

information indicating that there is any 

such threat from extreme weather 

currently or in the foreseeable future. 

We reviewed the petition and 

associated documents, information 

available in our files, and other 

published and unpublished information 

submitted to us during the public 

comment period following our 90–day 

petition finding. We have carefully 

assessed the best scientific and 

commercial information regarding the 

biology of this species and its threats. 

We conclude that the butterfly is not 

likely to become endangered within the 

foreseeable future throughout all or a 

significant portion of its range. We 

further conclude that the butterfly is not 

in danger of extinction throughout all or 

a significant portion of its range. In our 

judgment, the butterfly will continue to 

persist into the foreseeable future. 

Therefore, we find that listing the 

Sacramento Mountains checkerspot 

butterfly as a threatened or endangered 

species is not warranted. 

We will continue to monitor the 

status of the subspecies and to accept 

additional information and comments 

from all concerned governmental 

agencies, the scientific community, 

industry, or any other interested party 

concerning this finding. 

References Cited 

A complete list of all references cited 

in this finding is available upon request 

from the New Mexico Ecological 

Services Office (see ADDRESSES). 

Author 

The primary authors of this rule are 

the staff members of the New Mexico 

Ecological Services Office (see 

ADDRESSES). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

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

Dated: August 24, 2009. 

Daniel M. Ashe, 

Acting Director, Fish and Wildlife Service. 

[FR Doc. E9–21195 Filed 9–1–09; 8:45 am] 

BILLING CODE 4310–55–S 


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