46994 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU93 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for 11 Species of 

Picture-Wing Flies From the Hawaiian 

Islands 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for 11 species 

of Hawaiian picture-wing flies 

(Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. obatai, D. substenoptera, and D. 

tarphytrichia) pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

18 acres (ac) (7.3 hectares (ha)) fall 

within the boundaries of the proposed 

critical habitat designation. The 

proposed critical habitat is located in 

four counties (City and County of 

Honolulu, Hawaii, Maui, and Kauai) in 

Hawaii. Critical habitat has not been 

proposed for D. neoclavisetae, a species 

for which we determined critical habitat 

to be prudent, because the specific areas 

and physical and biological features 

essential to its conservation in the Puu 

Kukui Watershed Management Area are 

not in need of special management 

considerations or protection. Therefore, 

we are not proposing critical habitat for 

D. neoclavisetae because these specific 

areas and features do not meet the 

definition of critical habitat in the Act. 

DATES: We will accept comments from 

all interested parties until October 16, 

2006. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by September 29, 2006. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may submit written comments 

and information to Patrick Leonard, 

Field Supervisor, Pacific Islands Fish 

and Wildlife Office, U.S. Fish and 

Wildlife Service, 300 Ala Moana 

Boulevard, Room 3–122, P.O. Box 

50088, Honolulu, HI 96850. 

2. You may hand-deliver written 

comments to our Office at the above 

address. 

3. You may send comments by 

electronic mail (e-mail) to 

fw1pie_pwfchp@fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. 

4. You may fax your comments to 

808/792–9581. 

5. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Pacific Islands Fish and 

Wildlife Office, U.S. Fish and Wildlife 

Service, 300 Ala Moana Boulevard, 

Room 3–122, Honolulu, HI (telephone 

808/792–9400; facsimile 808/792–9581). 

FOR FURTHER INFORMATION CONTACT: 

Patrick Leonard, Field Supervisor, 

Pacific Islands Fish and Wildlife Office, 

(see ADDRESSES section) (telephone 808/ 

792–9400; facsimile 808/792–9581). 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at 800/877–8339, 24 hours a day, 

7 days a week. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate and as effective as possible. 

Therefore, comments or suggestions 

from the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule are hereby solicited. 

Comments particularly are sought 

concerning: 

(1) The reasons any habitat should or 

should not be determined to be critical 

habitat as provided by section 4 of the 

Act, including whether it is prudent to 

designate critical habitat. 

(2) Specific information on the 

amount and distribution of Drosophila 

aglaia, D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. neoclavisetae, D. 

obatai, D. ochrobasis, D. substenoptera, 

and D. tarphytrichia habitat, and what 

areas should be included in the 

designations that were occupied at the 

time of listing that contain the features 

essential for the conservation of the 

species and why, and what areas that 

were not occupied at the time of listing 

that are essential to the conservation of 

the species and why; 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat; 

(4) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

designation and, in particular, any 

impacts on small entities; and 

(5) Whether our approach to 

designating critical habitat could be 

improved or modified in any way to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments; 

(6) We are requesting specific 

information from the public on 

Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. neoclavisetae, D. obatai, D. 

ochrobasis, D. substenoptera, and D. 

tarphytrichia and their habitat, and 

which habitat or habitat components 

(i.e., physical and biological features) 

are essential to the conservation of these 

12 species and why; and 

(7) Whether the benefit of exclusion 

in any particular area will outweigh the 

benefits of inclusion of that area from 

critical habitat under Section 4(b)(2) of 

the Act. 

If you wish to comment, you may 

submit your comments and materials 

concerning this proposal by any one of 

several methods (see ADDRESSES

section). Please submit Internet 

comments to fw1pie_pwfchp@fws.gov in 

ASCII file format and avoid the use of 

special characters or any form of 

encryption. Please also include ‘‘Attn: 

RIN 1018–AU93’’ in your e-mail subject 

header and your name and return 

address in the body of your message. If 

you do not receive a confirmation from 

the system that we have received your 

Internet message, contact us directly by 

calling our Pacific Islands Fish and 

Wildlife Office at phone number 808/ 

792–9400. Please note that the Internet 

address fw1pie_pwfchp@fws.gov will be 

closed out at the termination of the 

public comment period. 

Our practice is to make comments, 

including names and home addresses of 

respondents, available for public review 

during regular business hours. We will 

make all comments available for public 

inspection in their entirety. Comments 

and materials received, as well as 

supporting documentation used in 

preparation of the proposal to designate 

critical habitat, will be available for 

public inspection, by appointment 

during normal business hours at the 

Pacific Islands Fish and Wildlife Office 

(see ADDRESSES). 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 


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critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under ESA section 4(b)(2), 

there are significant limitations on the 

regulatory effect of designation under 

ESA section 7(a)(2). In brief, (1) 

designation provides additional 

protection to habitat only where there is 

a federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, only 475 species, or 36 

percent of the 1,310 listed species in the 

U.S. under the jurisdiction of the 

Service, have designated critical habitat. 

We address the habitat needs of all 

1,310 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, the Section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

proposed for designation, we evaluated 

the benefits of designation in light of 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004). In that case, the Ninth 

Circuit invalidated the Service’s 

regulation defining ‘‘destruction or 

adverse modification of critical habitat.’’

In response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

proposed critical habitat designation 

does not use the invalidated regulation 

in our consideration of the benefits of 

including areas in this proposed 

designation. The Service will carefully 

manage future consultations that 

analyze impacts to designated critical 

habitat, particularly those that appear to 

be resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a time frame that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless, and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). 

These costs, which are not required for 

many other conservation actions, 

directly reduce the funds available for 

direct and tangible conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

proposed rule. For more information on 

the 11 species of Hawaiian picture-wing 

flies for which we are proposing to 

designate critical habitat, refer to the 

final listing rule for the 12 species 

picture-wing flies published in the 

Federal Register on May 9, 2006 (71 FR 

26835—pages 26835–26852). For 

reasons explains later in this document, 

we are not proposing critical habitat for 

one of the listed species’ Drosophila 

neoclavisetae. 

Previous Federal Actions 

For more information on previous 

Federal actions concerning the 11 

species of Hawaiian picture-wing flies, 

refer to the Determination of Status for 

12 Species of Picture-Wing Flies from 

the Hawaiian Islands, published in the 

Federal Register on May 9, 2006 (71 FR 

26835). In accordance with an amended 

settlement agreement approved by the 

United States District Court for the 

District of Hawaii on August 31, 2005 

(CBD v. Allen, CV–05–274–HA), the 

Service published in the May 9, 2006, 

Federal Register, a determination that 

designation of critical habitat for the 12 

species of Hawaiian picture-wing flies, 

pursuant to the Act’s sections 4(b)(6)(A) 

and (C), is prudent. Since critical habitat 

is prudent, the settlement stipulates that 

we must submit, for publication in the 

Federal Register, a proposed critical 

habitat designation for the listed species 

for which critical habitat is prudent on 

or by September 15, 2006, and a final 

critical habitat determination by April 

17, 2007. 


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Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: (i) The specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed in 

accordance with the provisions of 

section 4 of the Act, upon a 

determination that such areas are 

essential for the conservation of the 

species. ‘‘Conservation’’ means the use 

of all methods and procedures to bring 

species to the point at which the 

protection under the Act measures is no 

longer necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. (As discussed below, such 

areas may also be excluded from critical 

habitat pursuant to section 4(b)(2).) 

Accordingly, when the best available 

scientific data do not demonstrate that 

the conservation needs of the species 

require additional areas, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. An 

area currently occupied by the species 

but was not known to be occupied at the 

time of listing will likely, but not 

always, be essential to the conservation 

of the species and, therefore, typically 

included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, if there is 

one, articles in peer-reviewed journals, 

conservation plans developed by States 

and counties, scientific status surveys 

and studies, biological assessments, or 

other unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be 

appropriate for conservation actions 

implemented under section 7(a)(1) of 

the Act and subject to the regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard, as determined 

on the basis of the best available 

information at the time of the action. 

Federally funded or permitted projects 

affecting listed species outside their 

designated critical habitat areas may 

still result in jeopardy findings in some 

cases. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Drosophila aglaia, 

D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. neoclavisetae, D. 

obatai, D. ochrobasis, D. substenoptera, 

and D. tarphytrichia. 

We have reviewed the available 

information that pertains to the habitat 

requirements for these species and 

evaluated all known occurrence 

locations using data from numerous 

sources. The following geospatial, 

tabular data sets were used in proposing 

critical habitat: occurrence data for all 

12 species (K. Kaneshiro 2005a—pages 

1–16); vegetation mapping data for the 

Hawaiian Islands (GAP Data—Hawaiian 

Islands 2005); color mosaic 1:19,000 

scale digital aerial photographs for the 

Hawaiian Islands (dated April to May 

2005); and 1:24,000 scale digital raster 

graphics of USGS topographic 

quadrangles. Land ownership was 

determined from geospatial data sets 

associated with parcel data from Oahu 

County (2006); Hawaii County (2005); 

Kauai County (2005); and Maui County 

(2004). 

We reviewed a variety of peerreviewed and non-peer-reviewed 

articles for this proposal, which 

included background information on the 

species’ biology (e.g., Montgomery 

1975—pages 83, 94, 96–98, and 100; 

Foote and Carson 1995—pages 1–4; 

Kaneshiro and Kaneshiro 1995—pages 

1–47), plant ecology and biology (e.g., 

Wagner et al. 1999—pages 45, 52–53, 

971, 1,314–1,315, and 1,351–1,352), and 

ecology of the Hawaiian Islands and the 

areas considered (e.g., Smith 1985—

pages 227–233; Stone 1985—pages 251–

253, 256, and 260–263; Cuddihy and 

Stone 1990—pages 59–66, 73–76, and 

88–94). Additional information 


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available included the final rule listing 

the plant species Urera kaalae as 

endangered (Service 1995—pages 81–

83; 56 FR 55770, October 29, 1991,—

page 55779); the final listing rule for 

these species (71 FR 26835, May 9, 

2006,—pages 26835–26852); 

unpublished reports by The Nature 

Conservancy of Hawaii (TNCH); and 

aerial photographs and satellite imagery 

of the Hawaiian Islands. 

Additional information was obtained 

through personal communications with 

scientists and land managers familiar 

with the species and habitats. 

Contributing individuals included Dr. 

Ken Kaneshiro (Director of the 

University of Hawaii at Manoa’s Center 

for Conservation and Research Training 

Program; Dr. David Foote, research 

entomologist for the U.S. Geological 

Survey, Biological Resources Discipline; 

Dr. Steve Montgomery, Bishop Museum 

Research Associate; other staff from 

Bishop Museum; landowners; and staff 

from the Hawaii State Department of 

Land and Natural Resources, TNCH, and 

the U.S. Department of the Army (U.S. 

Army). 

Specific information from these 

sources included estimates of historic 

and current distribution, abundance, 

and territory sizes for the 12 species, as 

well as data on resources and habitat 

requirements. A recovery plan for this 

group of species has not been 

completed. 

As presented in the final listing rule 

(71 FR 26835; May 9, 2006), below is the 

specific information concerning the 

distribution and host-plants for each of 

the 11 species for which we are 

proposing critical habitat. This 

information is directly relevant to the 

primary constituent elements and thus 

repeated below. Each species of 

Hawaiian picture-wing fly described in 

this document is found only on a single 

island, and the larvae of each are 

dependant upon only a single or a few 

related species of plants (summarized in 

Table 1). 

Critical habitat has not been proposed 

for D. neoclavisetae, a species for which 

we determined critical habitat to be 

prudent, because, the specific areas and 

physical and biological features 

essential to its conservation in the Puu 

Kukui Watershed Management Area are 

not in need of special management 

considerations or protection. Therefore, 

we are not proposing critical habitat for 

D. neoclavisetae because these specific 

areas and features does not meet the 

definition of critical habitat in the Act. 

TABLE 1.—DISTRIBUTION OF 12 HAWAIIAN PICTURE-WING FLIES BY ISLAND, GENERAL HABITAT TYPE, AND PRIMARY HOST

PLANT(S). 

Species Island Elevation range General habitat type Primary host plants 

Oahu Species 

Drosophila aglaia ....... Oahu .......................... 1,700 to 2,900 ft 

(520–885 m).

Mesic forest ............... Urera glabra. 

D. hemipeza ............. Oahu .......................... 1,500 to 2,900 ft (460 

to 885 m).

Mesic forest ............... Cyanea sp., Lobelia sp., & Urera kaalae (E). 

D. montgomeryi ......... Oahu .......................... 1,900 to 2,900 ft 

(580–885 m).

Mesic forest ............... Urera kaalae (E). 

D. obatai .................... Oahu .......................... 1,500 to 2,500 ft 

(460–760 m).

Dry to mesic forest .... Pleomele aurea & Pleomele forbesii. 

D. substenoptera ....... Oahu .......................... 1,300 to 4,000 ft (395 

to 1,220 m).

Wet forest .................. Cheirodendron sp. & Tetraplasandra sp. 

D. tarphytrichia ........... Oahu .......................... 1,300 to 4,000 ft (395 

to 1,220 m).

Mesic forest ............... Charpentiera sp. 

Hawaii (Big Island) Species 

D. heteroneura ........... BI ................................ 3,400 to 6,000 ft 

(1,035 to 1,830 m).

Mesic to wet forest .... Cheirodendron sp., Clermontia sp., and 

Delissea sp. 

D. mulli ....................... BI ................................ 3,150 to 3,250 ft 

(960–990 m).

Wet forest .................. Pritchardia beccariana. 

D. ochrobasis ............. BI ................................ 3,400 to 5,400 ft 

(1,035 to 1,645 m).

Mesic to wet forest .... Clermontia sp., Marattia sp., & Myrsine sp. 

Molokai, Kauai, and Maui Species 

D. differens ................ Molokai ....................... 3,650 to 4,500 ft 

(1,115 to 1,370 m).

Wet forest .................. Clermontia sp. 

D. musaphilia ............. Kauai .......................... 3,000 to 3,700 ft 

(915–1,130 m).

Mesic forest ............... Acacia koa. 

D. neoclavisetae ........ Maui ........................... 3,500 to 4,500 ft 

(1,070 to 1,370 m).

Wet forest .................. Cyanea sp. 

Oahu Species 

Drosophila aglaia 

Drosophila aglaia is historically 

known from five localities in the 

Waianae Mountains of Oahu between 

1,700 and 2,900 feet (ft) (520 to 885 

meters (m)) above sea level. Drosophila 

aglaia is restricted to the natural 

distribution of its host plant, Urera 

glabra (family Urticaceae), which is a 

small shrub-like endemic tree. The 

larvae of D. aglaia develop in the 

decomposing bark and stem of U. 

glabra. This plant does not form large 

stands, but is infrequently scattered 

throughout slopes and valley bottoms in 

mesic and wet forest habitat on Oahu. 

Drosophila hemipeza 

Drosophila hemipeza is restricted to 

the island of Oahu where it is 

historically known from seven localities 

between 1,500 and 2,900 ft (460 to 885 

m) above sea-level (not including the 

Pupukea site of discovery which is 

considered an extripated population). 

Montgomery (1975—page 96) 


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determined that D. hemipeza larvae feed 

within decomposing portions of several 

different mesic forest plants. The larvae 

inhabit the decomposing bark of Urera 

kaalae (family Urticaceae), a federallyendangered plant (Service 1995—pages 

81–83; 56 FR 55770—page 55779) that 

grows on slopes and in gulches of 

diverse mesic forest. In 2004, only 41 

individuals of U. kaalae were known to 

remain in the wild (Service 2004—page 

9). In 2005, TNCH outplanted many 

seedlings of this species within several 

locations within D. hemipeza’s historic 

range (TNCH 2005—page 6). The larvae 

also feed within the decomposing stems 

of Lobelia sp. (family Campanulaceae) 

and the decomposing bark and stems of 

Cyanea sp. (family Campanulaceae) in 

mesic forest habitat (Kaneshiro and 

Kaneshiro 1995—page 17; Science Panel 

2005—page 16). 

Drosophila montgomeryi 

Drosophila montgomeryi is 

historically known from three localities 

in the Waianae Mountains on western 

Oahu between 1,900 and 2,900 ft (580 

to 885 m) above sea level. Montgomery 

(1975—page 97) reported that the larvae 

of this species feed within the decaying 

bark of Urera kaalae, a federallyendangered plant (Service 1995—pages 

81–83; 56 FR 55770—page 55779) that 

grows on slopes and in gulches of 

diverse mesic forest (Wagner et al. 

1999—pages 1,314–1,315). In 2004, only 

41 individuals of U. kaalae were known 

to remain in the wild (Service 2004—

page 9). In 2005, TNCH outplanted 

many seedlings of this species within 

several locations within D. 

montgomeryi’s historic range (TNCH 

2005—page 6). 

Drosophila obatai 

Drosophila obatai is historically 

known from two localities between 

1,500 and 2,500 ft (460 to 760 m) above 

sea level on the island of Oahu. 

Drosophila obatai larvae feed within 

decomposing portions of Pleomele 

forbesii (family Agavaceae), a candidate 

for Federal listing (70 FR 24870—page 

24883) (Kaneshiro and Kaneshiro 

1995—page 27; Montgomery 1975—

page 98). These host plants grow on 

slopes in dry forest and diverse mesic 

forest, and occur singly or in small 

clusters, rarely forming large stands 

(Wagner et al. 1999—pages 1,351–

1,352). 

Drosophila substenoptera 

Drosophila substenoptera is 

historically known from seven localities 

in both the Koolau and Waianae 

Mountains on the island of Oahu at 

elevations between 1,300 and 4,000 ft 

(395 to 1,220 m) above sea level. 

Montgomery (1975—page 100) 

determined that D. substenoptera larvae 

inhabit only the decomposing bark of 

Cheirodendron sp. trees (family 

Araliaceae) and Tetraplasandra sp. trees 

(family Araliaceae) in localized patches 

of wet forest habitat. 

Drosophila tarphytrichia 

Drosophila tarphytrichia was 

historically known from both the 

Koolau and the Waianae Mountains 

between 1,900 and 2,900 ft (580 to 885 

m) above sea level on the island of 

Oahu. Drosophila tarphytrichia is now 

apparently extirpated from the Koolau 

range where it was originally discovered 

near Manoa Falls, and is presently 

known from four localities in the 

Waianae Mountains (Kaneshiro and 

Kaneshiro 1995; HBMP 2005; K. 

Kaneshiro 2005a). The larvae of D. 

tarphytrichia feed only within the 

decomposing portions of the stems and 

branches of Charpentiera obovata trees 

(family Amaranthaceae) in mesic forest 

habitat (Montgomery 1975—page 100). 

Hawaii (Big Island) Species 

Drosophila heteroneura 

Drosophila heteroneura has been the 

most intensely studied of the 12 species 

discussed in this proposed rule 

(Kaneshiro and Kaneshiro 1995—page 

19). This species is restricted to the 

island of Hawaii where, historically, it 

was known to be relatively widely 

distributed between 3,400 and 6,000 ft 

(1,035 to 1,830 m) above sea level. 

Drosophila heteroneura has been 

recorded from 24 localities on 4 of the 

island’s 5 volcanoes (Hualalai, Mauna 

Kea, Mauna Loa, and Kilauea) in 5 

different montane environments (K. 

Kaneshiro 2005a—pages 4–8). 

Drosophila heteroneura larvae primarily 

inhabit the decomposing bark and stems 

of Clermontia sp. (family 

Campanulaceae), including C. 

clermontioides, and Delissea sp. (family 

Campanulaceae), but it is also known to 

feed within decomposing portions of 

Cheirodendron sp. (family Araliaceae) 

in open mesic and wet forest habitat 

(Kaneshiro and Kaneshiro 1995—page 

19). 

Drosophila mulli 

Drosophila mulli is restricted to the 

island of Hawaii and is historically 

known from two locations between 

3,150 and 3,250 ft (960 to 990 m) above 

sea level. Adult flies are found only on 

the leaf undersides of the endemic fan 

palm, Pritchardia beccariana (family 

Arecaceae), which is the only known 

association of a Drosophila species with 

a native Hawaiian palm species. The 

larval feeding site on the plant remains 

unknown because attempts to rear this 

species from decaying parts of P. 

beccariana have thus far been 

unsuccessful (W.P. Mull, Biologist, pers. 

comm. 1994—page 1; Science Panel 

2005—page 21). 

Drosophila ochrobasis 

Historically, Drosophila ochrobasis 

was relatively widely distributed 

between 3,400 and 5,400 ft (1,035 to 

1,645 m) above sea level on the island 

of Hawaii. Drosophila ochrobasis has 

been recorded from 10 localities on 4 of 

the island’s 5 volcanoes (Hualalai, 

Mauna Kea, Mauna Loa, and the Kohala 

mountains). The larvae of this species 

have been reported to use the 

decomposing portions of three different 

host plant groups—Myrsine sp. (family 

Myrsinaceae), Clermontia sp. (family 

Campanulaceae), and Marattia sp. 

(family Marattiaceae) (Montgomery 

1975—page 98; Kaneshiro and 

Kaneshiro 1995—page 29). 

Kauai Species 

Drosophila musaphilia 

Drosophila musaphilia is historically 

known from only four sites, one at 1,900 

ft (579 m) above sea level, and three 

sites between 2,600 and 3,700 ft (790 to 

1,130 m) above sea level on the island 

of Kauai. Montgomery (1975—page 97) 

determined that the host plant for D. 

musaphilia is Acacia koa. The females 

lay their eggs upon, and the larvae 

develop in, the moldy slime flux (seep) 

that occasionally appears on certain 

trees with injured plant tissue and 

seeping sap. Understanding the full 

range of D. musaphilia is difficult 

because its host plant, Acacia koa, is 

fairly common and stable within, and 

surrounding, its known range on Kauai; 

however, the frequency of suitable slime 

fluxes occurring on the host plant 

appears to be much more restricted and 

temporally unpredictable (Science Panel 

2005—pages 23–24). 

Maui Species 

Drosophila neoclavisetae 

Two populations of Drosophila 

neoclavisetae were found historically 

along the Puu Kukui Trail within 

montane wet ohia forests on State land 

in West Maui. One habitat site was 

found in 1969 at 4,500 ft (1,370 m) and 

the other in 1975 at 3,500 ft (1,070 m) 

above sea level (Kaneshiro and 

Kaneshiro 1995—page 26; K. Kaneshiro 

2005a—page 11). The host plant of D. 

neoclavisetae has not yet been 

confirmed, although it is likely 

associated with Cyanea sp. (family 


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Campanulaceae). Because both 

collections of this species occurred 

within a small patch of Cyanea sp. and 

many other species in the D. adiastola 

species group use species in this genus 

and other plants in the family 

Campanulaceae, researchers believe the 

Cyanea sp. found at Puu Kukui is likely 

the correct host plant for D. 

neoclavisetae (Science Panel 2005—

pages 19–20; Kaneshiro and Kaneshiro 

1995—page 26). 

Molokai Species 

Drosophila differens 

Drosophila differens is historically 

known from three sites on private land 

between 3,650 and 4,500 ft (1,115 to 

1,370 m) above sea level, within 

montane wet ohia forest (K. Kaneshiro 

2005a—page 2) on the island of 

Molokai. Montgomery (1975—page 83) 

found that D. differens larvae inhabit the 

bark and stems of Clermontia sp. (family 

Campanulaceae) in wet rainforest 

habitat (Kaneshiro and Kaneshiro 

1995—page 16). 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat, we consider 

those physical and biological features 

(primary constituent elements (PCEs)) 

that are essential to the conservation of 

the species, and within areas occupied 

by the species at the time of listing, that 

may require special management 

considerations and protection. These 

include, but are not limited to space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The specific primary constituent 

elements required for these 12 picturewing flies are derived from the 

biological needs of these species as 

described in the listing rule, published 

in the Federal Register on May 9, 2006 

(71 FR 26835—pages 26835–26840), 

with specific requirements described 

below. 

Space for Individual and Population 

Growth and Normal Behavior 

The general life cycle of Hawaiian 

Drosophilidae is typical of that of most 

flies: after mating, females lay eggs from 

which larvae (immature stage) hatch; as 

larvae grow, they molt (shed their skin) 

through three successive stages (instars); 

when fully grown, the larvae change 

into pupae (a transitional form) in 

which they metamorphose and emerge 

as adults. 

Breeding for all 11 species of flies 

included in this proposal generally 

occurs year-round, but egg laying and 

larval development increase following 

the rainy season as the availability of 

decaying matter, which the flies feed on, 

increases in response to the heavy rains 

(K. Kaneshiro 2005b—pages 1–2). In 

general, Drosophila lay between 50 and 

200 eggs in a single clutch. Eggs develop 

into adults in about a month, and adults 

generally become sexually mature 1 

month later. Adults generally live for 1 

to 2 months. 

It is unknown how much space is 

needed for these flies to engage in 

courtship and territorial displays and 

mating activities. Adult behavior may be 

disrupted or modified by less than ideal 

conditions such as decreased forest 

cover or loss of suitable food material 

(K. Kaneshiro 2005b—pages 1–2). 

Additionally, adult behavior may be 

disrupted and the flies themselves may 

be susceptible to the preying activities 

of nonnative hymenoptera including 

yellow jacket wasps and ants (Kaneshiro 

and Kaneshiro 1995—pages 41–42). The 

larvae generally pupate within the soil 

located below their host plant material, 

and it is presumed that they require 

relatively undisturbed and unmodified 

soil conditions to complete this stage 

before reaching adulthood (Science 

Panel 2005—page 5). Lastly, it is wellknown that these and most picture-wing 

flies are susceptible to even slight 

temperature increases, an issue that may 

be exacerbated by loss of suitable forest 

cover (K. Kaneshiro 2005b—pages 1–2). 

Food 

Each species of Hawaiian picturewing fly described in this document is 

found only on a single island, and the 

larvae of each are dependent upon only 

a single or a few related species of 

plants (summarized in Table 1). The 

adult flies feed on a variety of 

decomposing plant matter. The water or 

moisture requirements for all 12 of these 

species is unknown; however, during 

drier seasons or during times of drought, 

it is expected that available adult and 

larval stage food material in the form of 

decaying plant matter may decrease (K. 

Kaneshiro 2005b—pages 1–2). 

Primary Constituent Elements for 

Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. neoclavisetae, D. obatai, D. 

ochrobasis, D. substenoptera, and D. 

tarphytrichia 

Pursuant to our regulations, we are 

required to identify the known physical 

and biological features (PCEs) essential 

to the conservation of Drosophila aglaia, 

D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. neoclavisetae, D. 

obatai, D. ochrobasis, D. substenoptera, 

and D. tarphytrichia. All areas proposed 

as critical habitat for these species are 

based on documented occurrences 

within these species’ historic geographic 

range, and contain sufficient PCEs to 

support at least one life history 

function. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined the following PCEs for 

Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. neoclavisetae, D. obatai, D. 

ochrobasis, D. substenoptera, and D. 

tarphytrichia. 

Oahu Species 

The PCEs for Drosophila aglaia are: 

(1) Dry to mesic, lowland, Diospyros 

sp., ohia and koa forest; and 

(2) The larval host plant Urera glabra. 

The PCEs for Drosophila hemipeza 

are: 

(1) Dry to mesic, lowland, ohia and 

koa forest; and 

(2) The larval host plants Cyanea 

angustifolia, C. calycina, C. grimesiana 

ssp. grimesiana, C. grimesiana ssp. 

obatae, C. membranacea, C. pinnatifida, 

C. sessifolia, C. superba ssp. superba, 

Lobelia hypoleuca, L. hiihauensis, L. 

yuccoides, and Urera kaalae. 

The PCEs for Drosophila montgomeryi 

are: 

(1) Dry to mesic, lowland, diverse 

ohia and koa forest; and 

(2) The larval host plant Urera kaalae. 

The PCEs for Drosophila obatai are: 

(1) Dry to mesic, lowland, ohia and 

koa forest; and 

(2) The larval host plant Pleomele 

forbesii. 

The PCEs for Drosophila 

substenoptera are: 

(1) Mesic to wet, lowland to montane, 

ohia and koa forest; and 

(2) The larval host plants 

Cheirodendron platyphyllum ssp. 

platyphyllum, C. trigynum ssp. 


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trigynum, Tetraplasandra kavaiensis, 

and T. oahuensis. 

The PCEs for Drosophila tarphytrichia 

are: 

(1) Dry to mesic, lowland, ohia and 

koa forest; and 

(2) The larval host plant Charpentiera 

obovata. 

Hawaii (Big Island) Species 

The PCEs for Drosophila heteroneura 

are: 

(1) Mesic to wet, montane, ohia and 

koa forest; and 

(2) The larval host plants 

Cheirodendron trigynum ssp. trigynum, 

C. clermontioides, C. hawaiiensis, C. 

kohalae, C. lindseyana, C. montis-loa, C. 

paviflora, C. peleana, and C. pyrularia. 

The PCEs for Drosophila mulli are: 

(1) Wet, montane, ohia forest; and 

(2) The larval host plant Pritchardia 

beccariana. 

The PCEs for Drosophila ochrobasis 

are: 

(1) Mesic to wet, montane, ohia, koa, 

and Cheirodendron sp. forest; and 

(2) The larval host plants Clermontia 

calophylla, C. clermontioides, C. 

drepanomorpha, C. hawaiiensis, C. 

kohalae, C. lindseyana, C. montis-loa, C. 

parviflora, C. peleana, C. pyrularia, C. 

waimeae, Myrsine lessertiana, and M. 

sandwicensis. 

Kauai Species 

The PCEs for Drosophila musaphilia 

are: 

(1) Mesic, montane, ohia and koa 

forest; and 

(2) The larval host plant Acacia koa. 

Maui Species 

The PCEs for Drosophila 

neoclavisetae are: 

(1) Wet, montane, ohia forest; and 

(2) The larval host plants Cyanea 

kunthiana and C. macrostegia ssp. 

macrostegia. 

Molokai Species 

The PCEs for Drosophila differens are: 

(1) Wet, montane, ohia forest; and 

(2) The larval host plants Clermontia 

arborescens ssp. waihiae, C. granidiflora 

ssp. munroi, C. oblongifolia ssp. 

brevipes, and C. pallida. 

This proposed designation is for the 

conservation of PCEs necessary to 

support the life history functions which 

were the basis for the proposal. Each of 

the areas proposed in this rule have 

been determined to contain sufficient 

PCEs to provide for one or more of the 

life history functions of the Drosophila 

aglaia, D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. obatai, D. ochrobasis, 

D. substenoptera, and D. tarphytrichia. 

In some cases, the PCEs exist as a result 

of ongoing Federal actions. As a result, 

ongoing Federal actions at the time of 

designation will be included in the 

baseline in any consultation conducted 

subsequent to this designation. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Drosophila aglaia, 

D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. obatai, D. ochrobasis, 

D. substenoptera, and D. tarphytrichia. 

We are proposing to designate critical 

habitat on lands with documented 

occurrences and that contain the 

primary constituent elements for these 

11 Hawaiian picture-wing flies. The 

primary dataset we used to document 

observations of these 11 picture-wing 

flies spans the years 1965 to 1999 (K. 

Kaneshiro 2005a—pages 1–16). 

Additional data were obtained from 

individuals familiar with particular 

species and locations, and other sources 

of information as described above in the 

Methods section. Many sites were 

surveyed infrequently or have not been 

surveyed in a long time while others 

have relatively complete records from 

1966 to 1999. We selected areas based 

on sites surveyed since 1971 that were 

occupied during the date of the last 

survey (or within 1 year of that last 

occupied survey date) and were 

identified as ‘‘occupied.’’ Surveys locate 

adult flies, but adult flies are relative 

generalists and do not have the specific 

habitat requirements of the larval stage, 

which typically require a specific 

species (in some cases, several species 

or genera) of host plants for successful 

development. Though the primary 

constituent elements of the proposed 

critical habitat focus on these host 

plants, we use known adult locations as 

the starting center point for each critical 

habitat unit and include a surrounding 

area measuring 1 acre (0.405 ha) in size 

consisting of the features essential to the 

conservation species. 

While there has been considerable 

survey work conducted for Hawaiian 

picture-wing flies overall, some areas 

where these 11 species are found have 

not been surveyed in many years. We 

decided to propose critical habitat by 

relying on the results of the most recent 

surveys conducted since 1971. If that 

survey located adult flies of the 

particular species, we identified that 

site as occupied; if no adult flies of the 

species were found, we identified that 

site as not occupied. Because of the time 

that has passed since some of these 

surveys were conducted, it is possible 

that some of the sites we are considering 

as unoccupied (and so not included in 

the proposed critical habitat) have since 

been re-occupied by the species. 

However, we believe that the most 

recent survey results are the best 

information available to determine if a 

site is occupied. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid including within the 

boundaries of the map contained within 

this proposed rule, developed areas 

such as buildings, paved areas, and 

other structures that lack PCEs for 

Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia. The 

scale of the maps prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

areas. Any such structures and the land 

under them inadvertently left inside 

critical habitat boundaries shown on the 

maps of this proposed rule are excluded 

by text in this proposed rule and are not 

proposed for designation as critical 

habitat. Therefore, Federal actions 

limited to these areas would not trigger 

section 7 consultation, unless they affect 

the species or primary constituent 

elements in adjacent critical habitat. 

We are proposing to designate critical 

habitat on lands that we have 

determined are occupied by the 11 

species at the time of listing and contain 

sufficient primary constituent elements 

to support life history functions 

essential for the conservation of the 

species. 

Twenty-two units are proposed based 

on sufficient PCEs being present to 

support life processes for Drosophila 

aglaia, D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. obatai, D. ochrobasis, 

D. substenoptera, and D. tarphytrichia. 

Some units contained all PCEs and 

supported multiple life processes. Some 

segments contained only a portion of 

the PCEs necessary to support the 

particular use of that habitat for 

Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

determine whether areas occupied at the 

time of listing and containing the 

primary constituent elements may 


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require special management 

considerations or protections. 

Nonnative plants and animals pose 

the greatest threats to these 11 picturewing flies. In order to alleviate and 

reverse the ongoing degradation and 

loss of habitat caused by feral ungulates 

and invasive nonnative plants, active 

management or control of nonnative 

species is necessary for the conservation 

of all populations of the 11 picture-wing 

flies (Kaneshiro and Kaneshiro 1995—

pages 37–38). Without active 

management or control, native habitat 

containing the features that are essential 

for the conservation of the 11 picturewing flies is degraded and/or destroyed. 

In addition, habitat degradation and 

destruction as a result of fire and 

predation by nonnative insects, such as 

the western yellow-jacket wasp 

(Vespula pennsylvanica) and several 

species of ants, pose significant threats 

to many populations of the 12 picturewing flies. 

All of the proposed critical habitat 

units for the 11 picture wing flies may 

require special management to address 

feral ungulates, invasive nonnative 

plants, and yellow-jacket wasps. In 

addition, the units in dry or mesic 

habitats may also require special 

management to address fire and ants. 

These threats are discussed below. 

Feral Ungulates 

Feral ungulates have devastated 

native vegetation in many areas of the 

Hawaiian Islands (Cuddihy and Stone 

1990—pages 60–66). Because the 

endemic Hawaiian flora evolved 

without the presence of browsing and 

grazing ungulates, many plant groups 

have lost their adaptive defenses such as 

spines, thorns, stinging hairs, and 

defensive chemicals (University of 

Hawaii Department of Geography 

1998—page 138). Pigs (Sus scrofa), goats 

(Capra hircus), and cattle (Bos taurus) 

disturb the soil, and readily eat native 

plants, including the native host plants 

for 1 or more of the 11 picture-wing 

flies, as well as distribute nonnative 

plant seeds that can alter the ecosystem. 

In addition, browsing and grazing by 

feral ungulates in steep and remote 

terrain causes severe erosion of whole 

watersheds due to foraging and 

trampling behaviors (Cuddihy and 

Stone 1990—pages 60–64 and 66). 

Feral Pigs (Sus scrofa) 

Feral pigs threaten all populations of 

the 11 picture-wing flies. Feral pigs are 

found from dry coastal grasslands 

through rain forests and into the 

subalpine zone on all of the main 

Hawaiian Islands (Cuddihy and Stone 

1990—pages 64–65). An increase in pig 

densities and expansion of their 

distribution has caused widespread 

damage to native vegetation (Cuddihy 

and Stone 1990—pages 64–65). Feral 

pigs create open areas within forest 

habitat by digging up, eating, and 

trampling native species (Stone 1985—

pages 262–263). These open areas 

become fertile ground for nonnative 

plant seeds spread through their 

excrement and by transport in their hair 

(Stone 1985—pages 262–263). In 

nitrogen-poor soils, feral pig excrement 

increases nutrient availability, 

enhancing establishment of nonnative 

weeds that are more adapted to richer 

soils than are native plants (Cuddihy 

and Stone 1990—pages 64–65). In this 

manner, largely nonnative forests 

replace native forest habitat (Cuddihy 

and Stone 1990—pages 64–65). 

Foote and Carson (1995—pages 2–4) 

found that pig exclosures on the island 

of Hawaii supported significantly higher 

relative frequencies of picture-wing flies 

compared to other native and nonnative 

Drosophila species (7 percent of all 

observations outside of the exclosure 

and 18 percent of all observations inside 

the exclosure) and their native host 

plants. Loope et al. (1991—pages 9–10 

and 19) showed that excluding pigs 

from a montane bog on northeastern 

Haleakala, Maui, resulted in an increase 

in native plant cover from 6 to 95 

percent after 6 years of protection. 

Feral Goats (Capra hircus) 

Feral goats threaten populations of the 

picture-wing flies on Oahu (Drosophila 

aglaia), Hawaii (D. heteroneura), and 

Kauai (D. musaphilia). Feral goats 

occupy a wide variety of habitats on 

Kauai, Oahu, Molokai, Maui, and 

Hawaii, from lowland dry forests to 

montane grasslands where they 

consume native vegetation, trample 

roots and seedlings, accelerate erosion, 

and promote invasion of nonnative 

plants (van Riper and van Riper 1982—

pages 34–35; Stone 1985—page 261). On 

Oahu, goat populations are increasing 

and spreading in the dry upper slopes 

of the Waianae Mountains, becoming an 

even greater threat to the native habitat 

(K. Kawelo, U.S. Army Environmental 

Division, pers. comm. 2005—page 1). 

Feral Cattle (Bos taurus) 

Feral cattle threaten populations of 

Drosophila heteroneura on the island of 

Hawaii. Large-scale ranching of cattle 

began in the 19th century on the islands 

of Kauai, Oahu, Maui, and Hawaii 

(Cuddihy and Stone 1990—pages 59–

62). Large ranches, tens of thousands of 

acres in size, still exist on the islands of 

Maui and Hawaii (Cuddihy and Stone 

1990—pages 59–62). In addition, cattle 

grazing continues in several lowland 

regions in the northern portion of the 

Waianae Mountains of Oahu. 

Degradation of native forests used for 

ranching activities is evident. Feral 

cattle occupy a wide variety of habitats 

from lowland dry forests to montane 

grasslands, where they consume native 

vegetation, trample roots and seedlings, 

accelerate erosion, and promote the 

invasion of nonnative plants (van Riper 

and van Riper 1982—page 36; Stone 

1985—pages 256 and 260). 

Nonnative Plants 

The invasion of nonnative plants 

contributes to the degradation of native 

forests and the host plants of picturewing flies (Kaneshiro and Kaneshiro 

1995—pages 38–39; Wagner et al. 

1999—pages 52–53 and 971; Science 

Panel 2005—page 28), and threatens all 

populations of the 11 picture-wing flies. 

Some nonnative plants form dense 

stands, thickets, or mats that shade or 

out-compete native plants. Nonnative 

vines cause damage or death to native 

trees by overloading branches, causing 

breakage, or by forming a dense canopy 

cover, intercepting sunlight and shading 

out native plants below. Nonnative 

grasses burn readily and often grow at 

the border of forests, and carry fire into 

areas with woody native plants (Smith 

1985—pages 228–229; Cuddihy and 

Stone 1990—pages 88–94). The 

nonnative grasses are more fire-adapted 

and can spread prolifically after a fire, 

ultimately creating a stand of nonnative 

grasses where native forest once existed. 

Some nonnative plant species produce 

chemicals that inhibit the growth of 

other plant species (Smith 1985—page 

228; Wagner et al. 1999—page 971). 

Fire 

Fire threatens habitat of the Hawaiian 

picture-wing flies in dry to mesic 

grassland, shrubland, and forests on the 

islands of Kauai (Drosophila 

musaphilia), Oahu (D. aglaia, D. 

hemipeza, D. mongomeryi, D. obatai, 

and D. tarphytrichia), and Hawaii (D. 

heteroneura). Dry and mesic regions in 

Hawaii have been altered in the past 200 

years by an increase in fire frequency, 

a condition to which the native flora is 

not adapted. The invasion of fireadapted alien plants, facilitated by 

ungulate disturbance, has contributed to 

wildfire frequency. This change in fire 

regime has reduced the amount of forest 

cover for native species (Hughes et 

al.1991—page 743; Blackmore and 

Vitousek 2000—page 625) and resulted 

in an intensification of feral ungulate 

herbivory in the remaining native forest 

areas. Habitat damaged or destroyed by 

fire is more likely to be revegetated by 


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nonnative plants that cannot be used as 

host plants by these picture-wing flies 

(Kaneshiro and Kaneshiro 1995—page 

47). 

Nonnative Predatory Species 

Nonnative arthropods pose a serious 

threat to Hawaii’s native Drosophila, 

both through direct predation or 

parasitism as well as competition for 

food or space (Howarth and Medeiros 

1989—pages 82–83; Howarth and 

Ramsay 1991—pages 80–83; Kaneshiro 

and Kaneshiro 1995—pages 40–45 and 

47; Staples and Cowie 2001—pages 41, 

54–57). Due to their large colony sizes 

and systematic foraging habits, species 

of social Hymenoptera (ants and some 

wasps) and parasitic wasps pose the 

greatest threat to the Hawaiian picturewing flies (Carson 1982—page 1, 1986—

page 7; Gambino et al. 1987—pages 

169–170; Kaneshiro and Kaneshiro 

1995—pages 40–45 and 47). 

Ants 

Ants are believed to threaten 

populations of picture-wing flies in 

mesic areas on Oahu (Drosophila aglaia, 

D. hemipeza, D. mongomeryi, D. obatai, 

and D. tarphytrichia) and Hawaii (D. 

heteroneura). At least 44 species of ants 

are known to be established on the 

Hawaiian Islands (Hawaii Ecosystems at 

Risk Project (HEAR) database 2005—

page 2) and 4 particularly aggressive ant 

species have severely affected the native 

insect fauna (Zimmerman 1948—page 

173; HEAR database 2005—page 4). 

Ants are not a natural component of 

Hawaii’s arthropod fauna, and native 

species evolved in the absence of 

predation pressure from ants. Ants can 

be particularly destructive predators 

because of their high densities, 

recruitment behavior, aggressiveness, 

and broad range of diet (Reimer 1993—

pages 14–15, 17). The threat to picturewing flies is amplified by the fact that 

most ant species have winged 

reproductive adults (Borror 1989—pages 

737–738) and can quickly establish new 

colonies, spreading throughout suitable 

habitats (Staples and Cowie 2001—

pages 55–57). These attributes and the 

lack of native species’ defenses to ants 

allow some ant species to destroy 

isolated prey populations (Nafus 1993—

page 151). Hawaiian picture-wing flies 

pupate in the ground where they are 

exposed to predation by ants. Newly 

emerging adults have been observed 

with ants attached to their legs 

(Kaneshiro and Kaneshiro 1995—page 

43). 

Western Yellow-jacket Wasp 

An aggressive race of the western 

yellow-jacket wasp became established 

in the State of Hawaii in 1978, and this 

species is now abundant between 1,969 

and 3,445 ft (600 and 1,050 m) in 

elevation (Gambino et al. 1990-page 

1,088). On Maui, yellow-jackets have 

been observed carrying and feeding 

upon recently captured adult Hawaiian 

Drosophila (Kaneshiro and Kaneshiro 

1995—page 41). While there is no 

documentation that conclusively ties 

the decrease in picture-wing fly 

observations at historical sites with the 

establishment of yellow-jacket wasps 

within their habitats, the concurrent 

arrival of wasps and decline of picturewing fly observations for all 11 picturewing flies on all islands (Kauai, Oahu, 

Maui, Molokai, and Hawaii) suggests 

that the wasps may have played a 

significant role in the decline of some 

picture-wing fly populations (Carson 

1982—page 1, 1986—page 7; Foote and 

Carson 1995—page 3; Kaneshiro and 

Kaneshiro 1999; Science Panel 2005—

page 28). 

Proposed Critical Habitat Designation 

Critical habitat has not been proposed 

for D. neoclavisetae, a species for which 

we determined critical habitat to be 

prudent, because, the specific areas and 

physical and biological features 

essential to its conservation in the Puu 

Kukui Watershed Management Area are 

not in need of special management 

considerations or protection. Therefore, 

we are not proposing critical habitat for 

D. neoclavisetae because these specific 

areas and features does not meet the 

definition of critical habitat in the Act. 

We are proposing 22 units as critical 

habitat for Drosophila aglaia, D. 

differens, D. hemipeza, D. heteroneura, 

D. montgomeryi, D. mulli, D. 

musaphilia, D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia. In 

total, approximately 18 acres (ac) (7.3 

hectares (ha)) fall within the boundaries 

of the proposed critical habitat 

designation. The critical habitat areas 

described below constitute our best 

assessment at this time of areas 

determined to be occupied at the time 

of listing, contain the primary 

constituent elements, and that may 

require special management. The areas 

proposed as critical habitat are: 

(1) Island of Oahu: Drosophila 

aglaia—Unit 1—Palikea; Drosophila 

hemipeza—Unit 1—Makaha Valley East; 

Drosophila hemipeza—Unit 2—Palikea; 

Drosophila montgomeryi—Unit 1—

Kaluaa Gulch; Drosophila 

montgomeryi—Unit 2—Palikea; 

Drosophila obatai—Unit 1—Wailupe; 

Drosophila substenoptera—Unit 1—Mt. 

Kaala; Drosophila tarphytrichia—Unit 

1—Kaluaa Gulch; Drosophila 

tarphytrichia—Unit 2—Palikea; 

(2) Hawaii (Big Island): Drosophila 

heteroneura—Unit 1—Kau Forest 

Reserve; Drosophila heteroneura—Unit 

2—Pauahi; Drosophila heteroneura—

Unit 3—Waiea; Drosophila 

heteroneura—Unit 4—Waihaka Gulch; 

Drosophila heteroneura—Unit 5—

Gaspar’s Dairy; Drosophila 

heteroneura—Unit 6—Kipuka at 4,900 

ft; Drosophila heteroneura—Unit 7—Pit 

Crater; Drosophila mulli—Unit 1—Olaa 

Forest; Drosophila mulli—Unit 2—

Waiakea Forest; Drosophila 

ochrobasis—Unit 1—Kipuka 14; 

Drosophila ochrobasis—Unit 2—Kohala 

Mountains; 

(3) Island of Kauai: Drosophila 

musaphilia—Unit 1—Waimea Canyon 

Road at 2,600 ft; 

(4) Island of Molokai: Drosophila 

differens—Unit 1—Puu Kolekole. 

The areas identified as containing the 

features essential to the conservation of 

the 11 Hawaiian picture-wing flies for 

which we are proposing critical habitat 

includes a variety of undeveloped, 

forested areas that are used for larval 

stage development and adult fly stage 

foraging. Areas that meet the definition 

of critical habitat, but are proposed for 

exclusion pursuant to section 4(b)(2) 

include TNCH’s Kamakou Preserve on 

Molokai (Drosophila differens) and 

lands owned by Kamehameha Schools 

on the island of Hawaii (D. 

heteroneura). Proposed critical habitat 

includes land under State, City and 

County, and private ownership, with 

excluded Federal lands being managed 

by the Department of the Interior. The 

approximate area and land ownership 

within each unit are shown in Table 2. 


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TABLE 2.—CRITICAL HABITAT UNITS PROPOSED FOR DROSOPHILA AGLAIA, D. DIFFERENS, D. HEMIPEZA, D. HETERONEURA, 

D. MONTGOMERYI, D. MULLI, D. MUSAPHILIA, D. OBATAI, D. OCHROBASIS, D. SUBSTENOPTERA, AND D. TARPHYTRICHIA

Proposed critical habitat unit Land ownership Acres/hectares Proposed action 

OAHU 

Drosophila aglaia—Unit 1—Palikea * ............................ James Campbell Estate .......................... 1 ac (.405 ha) Proposed. 

Drosophila hemipeza—Unit 1—Makaha Valley East .... City & County of Honolulu ....................... 1 ac (.405 ha) Proposed. 

Drosophila hemipeza—Unit 2—Palikea * ...................... James Campbell Estate .......................... 1 ac (.405 ha) Proposed. 

Drosophila montgomeryi—Unit 1—Kaluaa Gulch ** ...... James Campbell Estate .......................... 1 ac (.405 ha) Proposed. 

Drosophila montgomeryi—Unit 2—Palikea * ................. James Campbell Estate .......................... 1 ac (.405 ha) Proposed. 

Drosophila obatai—Unit 1—Wailupe ............................. State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila substenoptera—Unit 1—Mt. Kaala ............. State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila tarphytrichia—Unit 1—Kaluaa Gulch ** ....... James Campbell Estate .......................... 1 ac (.405 ha) Proposed. 

Drosophila tarphytrichia—Unit 2—Palikea * .................. James Campbell Estate .......................... 1 ac (.405 ha) Proposed. 

HAWAII (Big Island) 

Drosophila heteroneura—Unit 1—Kau Forest Reserve State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila heteroneura—Unit 2—Pauahi ..................... Koa Road LLC ......................................... 1 ac (.405 ha) Proposed. 

Drosophila heteroneura—Unit 3—Waiea ...................... State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila heteroneura—Unit 4—Waihaka Gulch ........ State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila heteroneura—Unit 5—Gaspar’s Dairy ........ Kamehameha Schools ............................ 1 ac (.405 ha) Proposed for exclusion 

under 4(b)2. 

Drosophila heteroneura—Unit 6—Kipuka at 4,900 ft .... Kamehameha Schools ............................ 1 ac (.405 ha) Proposed for exclusion 

under 4(b)2. 

Drosophila heteroneura—Unit 7—Pit Crater ................. Kamehameha Schools ............................ 1 ac (.405 ha) Proposed for exclusion 

under 4(b)2. 

Drosophila mulli—Unit 1—Olaa Forest ......................... State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila mulli—Unit 2—Waiakea Forest ................... State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila ochrobasis—Unit 1—Kipuka 14 .................. State ........................................................ 1 ac (.405 ha) Proposed. 

Drosophila ochrobasis—Unit 2—Kohala Mountains ..... State ........................................................ 1 ac (.405 ha) Proposed. 

KAUAI 

Drosophila musaphilia—Unit 1—Waimea Canyon 

Road at 2,600 ft.

State ........................................................ 1 ac (.405 ha) Proposed. 

MOLOKAI 

Drosophila differens—Unit 1—Puu Kolekole ................ Molokai Ranch Ltd. ................................. 1 ac (.405 ha) Proposed for exclusion 

under 4(b)2 . 

Total ........................................................................ .................................................................. 18 ac (7.3 ha) 22 units. 

Several units overlap and, therefore, the proposed designation totals 18 acres: 

* The units at Palikea for D. aglaia, D. hemipeza, D. montgomeryi, and D. tarphytrichia overlap each other. 

** The units at Kaluaa Gulch for D. montgomeryi and D. tarphytrichia overlap each other. 

All of the proposed critical habitat 

units for 11 of the 12 Hawaiian picturewing flies were occupied by the species 

at the time of listing. We present brief 

descriptions of all units, and reasons 

why they meet the definition of critical 

habitat for Drosophila aglaia, D. 

differens, D. hemipeza, D. heteroneura, 

D. montgomeryi, D. mulli, D. 

musaphilia, D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia, 

below. All of the critical habitat units 

are 1 acre (0.405 ha) in size. For each 

of the units, threats to PCEs that may 

require special management 

considerations or protections are 

described above in the Special 

Management Considerations or 

Protections section. 

Oahu Species 

Drosophila aglaia 

Drosophila aglaia—Unit 1—Palikea 

consists of lowland, mesic, koa, and 

ohia forest within the southern Waianae 

Mountains of Oahu. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a—pages 

1–2). This unit contains sufficient PCEs 

to support at least one of the species’

life functions. Located at an elevation of 

2,840 ft (865 m), the unit is entirely 

owned by the James Campbell Estate, 

and is part of a larger area called the 

Honouliuli Preserve, administered and 

managed by TNCH. 

Drosophila hemipeza 

Drosophila hemipeza—Unit 1—

Makaha Valley East consists of lowland, 

mesic, koa, and ohia forest within the 

southern Waianae Mountains of Oahu. 

This unit was occupied by the species 

at the time of listing according to the 

most recent survey data (K. Kaneshiro 

2005a—pages 2–4). This unit contains 

sufficient PCEs to support at least one 

of the species’ life functions. Located at 

an elevation of 2,780 ft (850 m), the unit 

is entirely owned by the City and 

County of Honolulu, and is adjacent to 

and north of the State-owned Waianae 

Kai Forest Reserve. 

Drosophila hemipeza—Unit 2—

Palikea consists of lowland, mesic, koa, 

and ohia forest within the southern 

Waianae Mountains of Oahu. This unit 

was occupied by the species at the time 

of listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

3). This unit contains sufficient PCEs to 

support at least one of the species’ life 

functions. Located at an elevation of 

2,840 ft (865 m), the unit is entirely 

owned by the James Campbell Estate, 

and is part of a larger area called the 


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Honouliuli Preserve, administered and 

managed by TNCH. 

Drosophila montgomeryi 

Drosophila montgomeryi—Unit 1—

Kaluaa Gulch consists of diverse, mesic 

forest within the southern Waianae 

Mountains of Oahu. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a). This 

unit contains sufficient PCEs to support 

at least one of the species’ life functions. 

Located at an elevation of 1,940 ft (590 

m), the unit is entirely owned by the 

James Campbell Estate, and is part of a 

larger area called the Honouliuli 

Preserve, administered and managed by 

TNCH. 

Drosophila montgomeryi—Unit 2—

Palikea consists of lowland, mesic, koa, 

and ohia forest within the southern 

Waianae Mountains of Oahu. This unit 

was occupied by the species at the time 

of listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

8–9). This unit contains sufficient PCEs 

to support at least one of the species’

life functions. Located at an elevation of 

2,840 ft (865 m), the unit is entirely 

owned by the James Campbell Estate, 

and is part of a larger area called the 

Honouliuli Preserve, administered and 

managed by TNCH. 

Drosophila obatai 

Drosophila obatai—Unit 1—Wailupe 

consists of lowland, mesic, koa, and 

ohia forest within the southeastern 

Koolau Mountains of Oahu. This unit 

was occupied by the species at the time 

of listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

12). This unit contains sufficient PCEs 

to support at least one of the species’

life functions. Located at an elevation of 

1,560 ft (475 m), the unit occurs on 

State-owned lands and is part of a 

Forest Reserve administered and 

managed by the State. 

Drosophila substenoptera 

Drosophila substenoptera—Unit 1—

Mt. Kaala consists of montane, wet, ohia 

forest within the northern Waianae 

Mountains of Oahu. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

14). This unit contains sufficient PCEs 

to support at least one of the species’

life functions. Located at an elevation of 

3,900 ft (1,190 m), the unit occurs on 

State-owned lands and is part of a 

Forest Reserve administered and 

managed by the State. 

Drosophila tarphytrichia 

Drosophila tarphytrichia—Unit 1—

Kaluaa Gulch consists of diverse, mesic 

forest within the southern Waianae 

Mountains of Oahu. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a). This 

unit contains sufficient PCEs to support 

at least one of the species’ life functions. 

Located at an elevation of 1,940 ft (590 

m), the unit occurs on lands owned by 

the James Campbell Estate, and is part 

of a larger area called the Honouliuli 

Preserve, administered and managed by 

TNCH. 

Drosophila tarphytrichia—Unit 2—

Palikea consists of lowland, mesic, koa, 

and ohia forest within the southern 

Waianae Mountains of Oahu. This unit 

was occupied by the species at the time 

of listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

15). This unit contains sufficient PCEs 

to support at least one of the species’

life functions. Located at an elevation of 

2,840 ft (865 m), the unit occurs on 

lands owned by the James Campbell 

Estate, and is part of a larger area called 

the Honouliuli Preserve, administered 

and managed by TNCH. 

Hawaii (Big Island) Species 

Drosophila heteroneura 

Drosophila heteroneura—Unit 1—Kau 

Forest Reserve consists of montane, wet, 

closed and open ohia forest, and is 

located on the southern flank of Mauna 

Loa on the island of Hawaii. This unit 

was occupied by the species at the time 

of listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

5). This unit contains sufficient PCEs to 

support at least one of the species’ life 

functions. Located at an elevation of 

5,380 ft (1,640 m), the unit occurs on 

State-owned lands and is part of a 

Forest Reserve administered and 

managed by the State. 

Drosophila heteroneura—Unit 2—

Pauahi consists of montane, mesic, open 

koa and ohia forest, and is located on 

the western flank of Mauna Loa on the 

island of Hawaii. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a—pages 

7–8). This unit contains sufficient PCEs 

to support at least one of the species’

life functions. The unit is located on 

privately-owned lands at an elevation of 

4,395 ft (1,340 m). 

Drosophila heteroneura—Unit 3—

Waiea consists of montane, mesic, 

closed koa and ohia forest, and is 

located on the western flank of Mauna 

Loa on the island of Hawaii. This unit 

was occupied by the species at the time 

of listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

8). This unit contains sufficient PCEs to 

support at least one of the species’ life 

functions. The unit is located on Stateowned lands at an elevation of 5,400 

(1,645 m). 

Drosophila heteroneura—Unit 4—

Waihaka Gulch consists of montane, 

wet, closed and open koa and ohia 

forest, and is located on the southern 

flank of Mauna Loa on the island of 

Hawaii. This unit was occupied by the 

species at the time of listing according 

to the most recent survey data (K. 

Kaneshiro 2005a—page 8). This unit 

contains sufficient PCEs to support at 

least one of the species’ life functions. 

Located at an elevation of 4,200 ft (1,280 

m), the unit occurs on State-owned 

lands and is part of a Forest Reserve 

administered and managed by the State. 

Drosophila heteroneura—Unit 5—

Gaspar’s Dairy consists of montane, 

mesic, open koa and ohia forest with 

mixed grass species, and is located on 

the western flank of Mauna Loa on the 

island of Hawaii. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

4). This unit contains sufficient PCEs to 

support at least one of the species’ life 

functions. The unit is located on 

privately-owned lands at an elevation of 

4,430 ft (1,350 m). 

We are proposing to exclude this unit 

under section 4(b)(2) of the Act. 

Although the unit is being proposed for 

exclusion from final critical habitat 

designation, it still contributes to the 

conservation of the species. 

Drosophila heteroneura—Unit 6—

Kipuka at 4,900 ft consists of montane, 

mesic, open koa and ohia forest with 

mixed grass species, and is located on 

the western flank of Mauna Loa on the 

island of Hawaii. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

6). This unit contains sufficient PCEs to 

support at least one of the species’ life 

functions. The unit is located on 

privately-owned lands at an elevation of 

4,975 ft (1,515 m). 

We are proposing to exclude this unit 

under section 4(b)(2) of the Act. 

Although the unit is being proposed for 

exclusion from final critical habitat 

designation, it still contributes to the 

conservation of the species. 

Drosophila heteroneura—Unit 7—Pit 

Crater consists of montane, mesic, open 

ohia forest with mixed grass species, 

and is located on the western flank of 

Hualalai and south of the Kaupulehu 

Lava Flow on the island of Hawaii. This 

unit was occupied by the species at the 


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time of listing according to the most 

recent survey data (K. Kaneshiro 

2005a—page 8). This unit contains 

sufficient PCEs to support at least one 

of the species’ life functions. The unit 

is located on privately-owned lands at 

an elevation of 3,580 ft (1,090 m). 

We are proposing to exclude this unit 

under section 4(b)(2) of the Act. 

Although the unit is being proposed for 

exclusion from final critical habitat 

designation, it still contributes to the 

conservation of the species. 

Drosophila mulli 

Drosophila mulli—Unit 1—Olaa 

Forest consists of montane, wet, open 

and closed ohia forest and is located to 

the northeast of Kilauea Caldera on the 

southeastern flank of Mauna Loa on the 

island of Hawaii. This unit was 

occupied by the species at the time of 

listing according to the most recent 

survey data (K. Kaneshiro 2005a—page 

10). This unit contains sufficient PCEs 

to support at least one of the species’

life functions. Located at an elevation of 

3,210 ft (980 m), the unit occurs on 

State-owned lands and is part of the 

Olaa Forest Reserve administered and 

managed by the State. 

Drosophila mulli—Unit 2—Waiakea 

Forest consists of montane, wet, open 

and closed ohia forest, and is located to 

the northeast of Kilauea Caldera on the 

southeastern flank of Mauna Loa on the 

island of Hawaii. This unit was 

occupied by the species at the time of 

listing (K. Kaneshiro 2005a—page 10). 

This unit contains sufficient PCEs to 

support at least one of the species’ life 

functions. Located at an elevation of 

3,190 ft (970 m), the unit occurs on 

State-owned lands and is part of the 

Waiakea Forest Reserve administered 

and managed by the State. 

Drosophila ochrobasis 

Drosophila ochrobasis—Unit 1—

Kipuka 14 consists of montane, wet, 

open and closed ohia forest with native 

shrubs, and is located within the saddle 

road area on the north eastern flank of 

Mauna Loa on the island of Hawaii. 

This unit was occupied by the species 

at the time of listing (K. Kaneshiro 

2005a—pages 12–13). This unit contains 

sufficient PCEs to support at least one 

of the species’ life functions. Located at 

an elevation of 5,110 ft (1,560 m), the 

unit occurs on State-owned lands and is 

part of a Forest Reserve administered 

and managed by the State. 

Drosophila ochrobasis—Unit 2—

Kohala Mountains consists of montane, 

wet, open and closed ohia forest with 

native shrubs and mixed grass species, 

and is located on the southeastern flank 

of the Kohala Mountains on the island 

of Hawaii. This unit was occupied by 

the species at the time of listing (K. 

Kaneshiro 2005a—page 12). This unit 

contains sufficient PCEs to support at 

least one of the species’ life functions. 

Located at an elevation of 3,860 ft (1,165 

m), the unit occurs on State-owned 

lands and is part of a Forest Reserve 

administered and managed by the State. 

Kauai Species 

Drosophila musaphilia 

Drosophila musaphilia—Unit 1—

Waimea Canyon Road at 2,600 ft 

consists of lowland, mesic koa and ohia 

forest, and is located along the Waimea 

Canyon Road within the Waimea 

Canyon State Park on the island of 

Kauai. This unit was occupied by the 

species at the time of listing (K. 

Kaneshiro 2005a—page 11). This unit 

contains sufficient PCEs to support at 

least one of the species’ life functions. 

Located at an elevation of 2,600 ft (2,545 

m), the unit occurs on State-owned 

lands administered and managed by the 

Hawaii Division of State Parks. 

Molokai Species 

Drosophila differens 

Drosophila differens—Unit 1—Puu 

Kolekole consists of montane, wet, ohia 

forest within the Eastern Molokai 

Mountains on the island of Molokai. 

This unit was occupied by the species 

at the time of listing (K. Kaneshiro 

2005a—page 2). This unit contains 

sufficient PCEs to support at least one 

of the species’ life functions. Located at 

an elevation of 3,950 ft (1,200 m), the 

unit occurs on privately-owned lands 

that are part of a larger area called the 

Kamakou Preserve, managed and 

administered by TNCH. 

We are proposing to exclude this area 

under section 4(b)(2) of the Act. 

Although the unit is being proposed for 

exclusion from final critical habitat 

designation, it still contributes to the 

conservation of the species. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. A 

recent decision by the 9th Circuit Court 

of Appeals invalidated our regulatory 

definition of ‘adverse modification’ (see 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004) and Sierra Club v. U.S. 

Fish and Wildlife Service et al., 245 F.3d 

434, 442F (5th Cir 2001)). Pursuant to 

the Director’s memo of August 2004, 

destruction or adverse modification is 

determined on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain the current ability for the primary 

constituent elements to be functionally 

established) to serve the intended 

conservation role for the species. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of the conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action as a result of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report, while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 


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requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, the Service may issue: (1) 

A concurrence letter for Federal actions 

that may affect, but are not likely to 

adversely affect, listed species or critical 

habitat; or (2) a biological opinion for 

Federal actions that are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, some 

Federal agencies may request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect the 

12 species of Hawaiian picture-wing 

flies or designated critical habitat for the 

11 species addressed herein will require 

section 7 consultation under the Act. 

Activities on State, Tribal, local or 

private lands requiring a Federal permit 

(such as a permit from the Corps under 

section 404 of the Clean Water Act or a 

permit under section 10(a)(1)(B) of the 

Act from the Service) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) will 

also be subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, tribal, 

local or private lands that are not 

federally-funded, authorized, or 

permitted, do not require section 7 

consultations. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the Eleven 

Species of Hawaiian Picture-wing Flies 

and Their Critical Habitat 

Jeopardy Standard 

Prior to and following designation of 

critical habitat, the Service will apply 

an analytical framework for Drosophila 

aglaia, D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. neoclavisetae, D. 

obatai, D. ochrobasis, D. substenoptera, 

and D. tarphytrichia jeopardy analyses 

that relies heavily areas identified as 

occupied in this rule and the listing 

rule. The jeopardy analysis is focused 

not only on these populations but also 

on the habitat conditions necessary to 

support them. 

The jeopardy analysis would likely 

express the survival and recovery needs 

of the 11 species of Hawaiian picturewing flies in a qualitative fashion 

without making distinctions between 

what is necessary for survival and what 

is necessary for recovery. Generally, if a 

proposed Federal action is incompatible 

with the viability of the affected 

population(s), to such an extent that the 

continued existence of the species is 

jeopardized, a jeopardy finding would 

be considered. 

Adverse Modification Standard 

The analytical framework described 

in the Director’s December 9, 2004, 

memorandum would be used to 

complete section 7(a)(2) analyses for 

Federal actions affecting Drosophila 

aglaia, D. differens, D. hemipeza, D. 

heteroneura, D. montgomeryi, D. mulli, 

D. musaphilia, D. obatai, D. ochrobasis, 

D. substenoptera, and D. tarphytrichia 

critical habitat. The key factor related to 

the adverse modification determination 

would be whether, with implementation 

of the proposed Federal action, the 

affected critical habitat would remain 

functional (or retain the current ability 

for the primary constituent elements to 

be functionally established) to serve the 

intended conservation role for the 

species. Generally, the conservation role 

of the 11 picture-wing flies’ critical 

habitat units would be to support the 

populations identified in this rule. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs as described in 

the Director’s memo of August, 2004. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore result in consultation for 

Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia 

include, but are not limited to: 

(1) Activities including, but not 

limited to: overgrazing; maintenance of 

feral ungulates; clearing or cutting of 

native live trees and shrubs, whether by 

burning or mechanical, chemical, or 

other means (e.g., woodcutting, 

bulldozing, construction, road building, 

mining, herbicide application); 

introducing or enabling the spread of 

nonnative species (e.g., nonnative plant 

species that may compete with native 

host plants, or nonnative arthropod 

pests that prey upon native host plants); 

and taking actions that pose a risk of 

fire. 

(2) Construction where a permit under 

section 404 of the Clean Water Act 

would be required by the U.S. Army 

Corps of Engineers. Construction in 

wetlands, where a 404 permit would be 

required, could affect the habitat of 

Drosophila heteroneura. 

(3) Recreational activities that 

appreciably degrade vegetation. 

(4) Introducing or encouraging the 

spread of nonnative plant species into 

critical habitat units. 

(5) The purposeful release or 

augmentation of any dipteran predator 

or parasitoid. 

We consider all of the units proposed 

as critical habitat, as well as those that 

have been proposed for exclusion or not 

included, to contain features essential to 

the conservation of the 11 picture-wing 

flies. All units are within the geographic 


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range of each of the species, all were 

occupied by the 11 species at the time 

of listing (based on observations made 

within the last 35 years), and are likely 

to be used by the 11 species of picturewing flies. Federal agencies already 

consult with us on activities in areas 

currently occupied by the 12 picturewing flies, or if the species may be 

affected by the action, to ensure that 

their actions do not jeopardize the 

continued existence of the 12 picturewing flies. 

Application of Section 3(5)(A) and 

Exclusions Under Section 4(b)(2) of the 

Act 

Section 3(5)(A) of the Act defines 

critical habitat as the specific areas 

within the geographical area occupied 

by the species on which are found those 

physical and biological features (i) 

essential to the conservation of the 

species, and (ii) which may require 

special management considerations or 

protection. Therefore, areas within the 

geographical area occupied by the 

species that do not contain the features 

essential to the conservation of the 

species are not, by definition, critical 

habitat. Similarly, areas within the 

geographical area occupied by the 

species that require no special 

management or protection also are not, 

by definition, critical habitat. Thus, for 

example, areas that do not need special 

management may not need protection if 

there is lack of pressure for change, such 

as areas too remote for anthropogenic 

disturbance. 

There are multiple ways to provide 

management for species habitat. 

Statutory and regulatory frameworks 

that exist at a local level can provide 

such protection and management, as can 

lack of pressure for change, such as 

areas too remote for anthropogenic 

disturbance. Finally, State, local, or 

private management plans as well as 

management under Federal agencies 

jurisdictions can provide protection and 

management to avoid the need for 

designation of critical habitat. When we 

consider a plan to determine its 

adequacy in protecting habitat, we 

consider whether the plan, as a whole 

will provide the same level of protection 

that designation of critical habitat 

would provide. The plan need not lead 

to exactly the same result as a 

designation in every individual 

application, as long as the protection it 

provides is equivalent, overall. In 

making this determination, we examine 

whether the plan provides management 

or protection of the PCEs that is at least 

equivalent to that provided by a critical 

habitat designation, and whether there 

is a reasonable expectation that the 

management or protection actions will 

continue into the foreseeable future. 

Each review is particular to the species 

and the plan, and some plans may be 

adequate for some species and 

inadequate for others. 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Secretary is afforded broad 

discretion and the Congressional record 

is clear that in making a determination 

under section 4(b)(2) the Secretary has 

discretion as to which factors to 

consider and how much weight will be 

given to any factor. 

Under section 4(b)(2), in considering 

whether to exclude a particular area 

from the designation, we must identify 

the benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. In addition, 

the Service is conducting an economic 

analysis of the impacts of the proposed 

critical habitat designation and related 

factors, which will be made available for 

public review and comment. Based on 

public comment on that document, the 

proposed designation, and the 

information in the final economic 

analysis, additional areas beyond those 

identified in this assessment may be 

excluded from critical habitat by the 

Secretary under the provisions of 

section 4(b)(2) of the Act. This is 

provided for in the Act, and in our 

implementing regulations at 50 CFR 

424.19. Pursuant to 50 CFR 424.19, we 

must propose an area as critical habitat 

prior to making an exclusion of that area 

pursuant to section 4(b)(2) of the Act 

from the final critical habitat 

designation to receive public comment. 

We have therefore included these units 

or portions thereof in the regulation 

portion of this proposed critical habitat 

rule. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995) and 

at least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002—page 720). Stein et al. (1995—

page 3) found that only about 12 percent 

of listed species were found almost 

exclusively on Federal lands (i.e., 90–

100 percent of their known occurrences 

restricted to Federal lands) and that 50 

percent of federally listed species are 

not known to occur on Federal lands at 

all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-federal 

landowners (Wilcove and Chen 1998—

page 1,407; Crouse et al. 2002—page 

720; James 2002—page 270). Building 

partnerships and promoting voluntary 

cooperation of landowners is essential 

to understanding the status of species 

on non-federal lands and is necessary to 

implement recovery actions such as 

reintroducing listed species, habitat 

restoration, and habitat protection. 

Many non-Federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation. This philosophy is evident 

in Service programs such as Habitat 

Conservation Plans (HCPs), Safe 

Harbors, Candidate Conservation 

Agreements (CCAs), Candidate 

Conservation Agreements with 

Assurances (CCAAs), and conservation 

challenge cost-share grants. Many 

private landowners, however, are wary 

of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal Government, while wellintentioned and required by law, can 

under certain circumstances have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996—pages 2 and 

5; Bean 2002—pages 409, 412, 414–415, 

and 419–420; Conner and Mathews 

2002—page 2; James 2002—page 270; 


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Koch 2002—pages 508–510). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999—pages 1,263–1,265). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-Federal lands. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999—pages 1,263–1,265; 

Bean 2002—pages 409, 412, 414–415, 

and 419–420). The magnitude of this 

negative outcome is greatly amplified in 

situations where active management 

measures (e.g., reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002—pages 414 

and 419–420). 

The Service believes that the 

judicious use of excluding specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. For example, 

less than 17 percent of Hawaii is 

federally owned, but the State is home 

to more than 24 percent of all federally 

listed species, most of which will not 

recover without State and private 

landowner cooperation. On the island of 

Lanai, Castle and Cooke Resorts, LLC, 

which owns 99 percent of the island, 

entered into a conservation agreement 

with the Service. The conservation 

agreement provides conservation 

benefits to target species through 

management actions that remove threats 

(e.g., axis deer, mouflon sheep, rats, 

invasive nonnative plants) from the 

Lanaihale and East Lanai Regions. 

Specific management actions include 

fire control measures, nursery 

propagation of native flora (including 

the target species) and planting of such 

flora. These actions will significantly 

improve the habitat for all currently 

occurring species. Due to the low 

likelihood of a Federal nexus on the 

island we believe that the benefits of 

excluding the lands covered by the 

MOA exceeded the benefits of including 

them. As stated in the final critical 

habitat rule for endangered plants on 

the Island of Lanai: 

On Lanai, simply preventing ‘‘harmful 

activities’’ will not slow the extinction of 

listed plant species. Where consistent with 

the discretion provided by the Act, the 

Service believes it is necessary to implement 

policies that provide positive incentives to 

private landowners to voluntarily conserve 

natural resources and that remove or reduce 

disincentives to conservation. While the 

impact of providing these incentives may be 

modest in economic terms, they can be 

significant in terms of conservation benefits 

that can stem from the cooperation of the 

landowner. The continued participation of 

Castle and Cooke Resorts, LLC, in the 

existing Lanai Forest and Watershed 

Partnership and other voluntary conservation 

agreements will greatly enhance the Service’s 

ability to further the recovery of these 

endangered plants. 

Conservation through 

communication, consultation, and 

cooperation is the foundation for 

developing the tools of conservation. 

These tools include conservation grants, 

funding for Partners for Fish and 

Wildlife Program, the Coastal Program, 

and cooperative-conservation challenge 

cost-share grants. Our Private 

Stewardship Grant program and 

Landowner Incentive Program provide 

assistance to private land owners in 

their voluntary efforts to protect 

threatened, imperiled, and endangered 

species, including the development and 

implementation of HCPs. 

Conservation agreements with nonFederal landowners, contractual 

conservation agreements, easements, 

and stakeholder-negotiated State 

regulations enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through coercive methods (61 FR 63854, 

December 2, 1996—page 63856). 

Maui Land and Pineapple Co., Ltd. 

Maui Pineapple Company’s Puu Kukui 

Watershed Management Area, Located 

in the West Maui Mountains 

Lands within Maui Land and 

Pineapple Company’s (ML&P’s) Puu 

Kukui Watershed Management Area 

(WMA), located in the West Maui 

Mountains, are occupied habitat and 

have the features essential for the 

conservation of Drosophila 

neoclavisetae. In a September 2002 

letter to the Service, the Puu Kukui 

Watershed Supervisor stated that since 

1988 ML&P has proactively managed 

Puu Kukui Watershed and is currently 

in their second, 6-year contract with the 

State of Hawaii’s NAP program to 

preserve the native biodiversity of their 

conservation lands. They are also 

receiving funding from the Service to 

survey for rare plants on their lands and 

build feral ungulate control fences for 

the protection of listed and other native 

plants, including the host plants for D. 

neoclavisetae. In other words, ML&P 

has a history of funding and conducting 

proactive conservation efforts in Puu 

Kukui that provide a benefit for D. 

neoclavisetae; they are enrolled in the 

State’s NAP program; and they receive 

funding from the Service to support 

their conservation efforts. Therefore, we 

have determined that the private land 

within Puu Kukui WMA does not meet 

the definition of critical habitat under 

section 3(5)(A) of the Act as discussed 

below, and, therefore, are not proposing 

critical habitat for Drosophila 

neoclavisetae on ML&P land. 

At just over 3,483 ha (8,600 ac), the 

Puu Kukui WMA is the largest privately 

owned preserve in the State. In 1993, 

the Puu Kukui WMA became the first 

private landowner participant in the 

NAP program. In the NAP program, Puu 

Kukui WMA staff are pursuing four 

management programs stipulated in 

their Long Range Management Plan with 

an emphasis on reducing nonnative 

species that immediately threaten the 

management area (Maui Pineapple 

Company 1999—pages 2–21). There is a 

reasonable expectation, based on 

ML&P’s management efforts to date, that 

the management programs currently 

implemented in Puu Kukui WMA and 

described below will continue into the 

foreseeable future. 

The primary management goals 

within Puu Kukui WMA are to (1) 

eliminate ungulate activity in all Puu 

Kukui management units; (2) reduce the 

range of habitat-modifying weeds and 

prevent introduction of nonnative 

plants; (3) reduce the negative impacts 

of nonnative invertebrates and small 

animals; (4) monitor and track biological 

and physical resources in the watershed 

in order to improve management 

understanding of the watershed’s 

resources; and (5) prevent the extinction 

of rare species within the watershed. 

Implementation of the specific 

management actions (described below) 

addresses the threats to Drosophila 

neoclavisetae and the features essential 

for its conservation from feral ungulates 


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and nonnative plants and, thus, removes 

the need for special management and 

protection. 

Specific management actions to 

address feral ungulates include the 

construction of fences surrounding 10 

management units and removal of 

ungulates within the Puu Kukui WMA. 

The nonnative plant control program 

within Puu Kukui WMA focuses on 

habitat-modifying weeds, prioritizing 

them according to the degree of threat 

to native ecosystems, and preventing the 

introduction of new weeds. The weed 

control program includes mapping and 

monitoring along established transects 

and manual/mechanical control. 

Biological control of Clidemia hirta was 

attempted by releasing Antiblemma 

acclinalis moth larvae. Natural resource 

monitoring and research address the 

need to track biological and physical 

resources of the Puu Kukui WMA and 

evaluate changes to these resources in 

order to guide management programs. 

Vegetation is monitored through 

permanent photo points, nonnative 

species are monitored along permanent 

transects, and rare, endemic, and 

indigenous species are monitored. 

Additionally, logistical and other 

support for approved research projects, 

interagency cooperative agreements, and 

remote survey trips within the 

watershed is provided. 

For these reasons, Puu Kukui WMA 

meets the three criteria for determining 

that an area is not in need of special 

management or protections as discussed 

above. Therefore, we have determined 

that the private land within Puu Kukui 

WMA does not meet the definition of 

critical habitat pursuant to 3(5)(A) in the 

Act, and we are not proposing this land 

as critical habitat. Should the status of 

this reserve change, for example by nonrenewal of a partnership agreement or 

termination of NAP funding, we will 

reconsider whether it then meets the 

definition of critical habitat. If so, we 

have the authority to propose to amend 

critical habitat to include such area at 

that time (50 CFR 424.12(g)). 

In summary, we believe that the 

habitat within Puu Kukui WMA is being 

adequately protected and managed for 

the conservation of the listed Drosophila 

neoclavisetae, including all of its known 

sites and features that are essential to its 

conservation that occur within this area, 

and is not in need of special 

management considerations or 

protection. Therefore, we have 

determined that this specific area does 

not meet the definition of critical habitat 

pursuant to the Act, and we, therefore, 

do not propose this specific area as 

critical habitat for D. neoclavisetae. 

Hakalau Forest National Wildlife 

Refuge, Kona Forest Unit, Island of 

Hawaii 

Lands within the U.S. Fish and 

Wildlife Service’s Kona Forest Unit of 

the Hakalau Forest National Wildlife 

Refuge are occupied habitat and have 

the necessary features that are essential 

for the conservation of Drosophila 

heteroneura. The Kona Forest Unit of 

Hakalau Forest National Wildlife Refuge 

was established in 1997 to protect 

endangered forest birds and their 

habitat. Management actions for this 

refuge unit are outlined in our 

Conceptual Management Plan (Service 

1997a—pages ii-iii) and in our Wildland 

Fire Management Plan (Service 1997b—

pages 2–3). The Conceptual 

Management Plan for the Kona unit 

describes planned management 

activities (Service 1997a—pages 10–13) 

for the area including listed species 

recovery; monitoring; habitat 

management; maintenance of 

biodiversity; alien plant control; feral 

ungulate control; and wildfire 

management, all of which will benefit 

Drosophila heteroneura and its host 

plants. The Hakalau Wildland Fire 

Management Plan, details the Services 

wildfire management objectives, 

strategy, responsibilities, and 

consultation protocol (Service 1997b—

pages 11–20), all of which will benefit 

D. heteroneura and its host plants. 

The Hakalau Refuge has received 1.1 

million dollars in Fiscal Year 2006 to 

enclose a large portion of the Kona 

Refuge unit. This project will involve 

the construction of approximately 17 

miles of fencing designed to exclude 

pigs, sheep, and cattle. Pigs and cattle 

are currently the most serious ungulate 

threats to this area and the construction 

of this large enclosure will remove the 

primary threats to D. heteroneura’s host 

plant habitat and associated ecosystem. 

An environmental assessment is 

currently being prepared for this project 

and we expect that construction will 

commence sometime in late 2006 or 

early 2007 (Richard Wass, Service—

Refuges Division, pers. comm. 2006). 

Additionally, the Kona Refuge unit has 

been identified as a high priority area 

for recovery of the Hawaiian crow. 

Accordingly, we are committed to 

protecting and managing this area to the 

best of our ability as future funding 

allows. Many of the planned 

management activities for the Hawaiian 

crow such as rat control will also benefit 

the host plant habitat of D. heteroneura 

(Gina Shultz, Service—Ecological 

Services, pers. comm. 2006). We have, 

therefore, determined that this refuge 

land does not meet the definition of 

critical habitat under section 3(5)(A) of 

the Act, and, therefore, are not 

proposing critical habitat on the Kona 

Forest Unit of the Hakalau Forest 

National Wildlife Refuge. 

Hawaii Volcanoes National Park, 

Island of Hawaii 

Lands within Hawaii Volcanoes 

National Park (HAVO) are occupied 

habitat and have the necessary features 

that are essential for the conservation of 

Drosophila heteroneura. Hawaii 

Volcanoes National Park was 

established in 1916 to preserve the 

significant resources that reflect 

Hawaii’s geological, biological, and 

cultural heritage. In recognition of its 

outstanding values, the park has been 

designated an International Biosphere 

Reserve and a World Heritage Site. 

Management actions for the biological 

resources of this park are outlined in 

natural resources management plans 

and fire management plans (HAVO 

1974—page i, 2002—pages 11–14, 

2004—pages 2–6). The natural resources 

plan broadly describes ongoing 

management activities within the park 

including the reestablishment of key 

plant ecosystem components of the area; 

the exclusion and removal of pigs and 

goats; research on rat control; localized 

rat control and prevention; and the 

control of numerous nonnative weed 

species, all of which benefit D. 

heteroneura and its host plants (HAVO 

1974—pages 2–6, 8–14, and 16–17). The 

fire management plan details wildfire 

management objectives and planned 

wildfire control within the park 

including the use of fire to rehabilitate 

areas infested with non-native grass 

species infested areas, all of which will 

benefit D. heteroneura once 

implemented (HAVO 2004—pages 11–

14). Within the area containing the 

Thurston Lava Tube population of D. 

heteroneura, the Park Service currently 

excludes pigs and targets for removal 

certain invasive weed species including 

Hedychium gardnerianum (Kahili 

ginger), Psidium cattleianum 

(strawberry guava), Morella faya (faya 

tree), and Rubus ellipticus (Himalayan 

raspberry) (Rhonda Loh, HAVO, pers. 

comm. 2006). Because the Park Service 

is addressing these primary threats to D. 

heteroneura’s host plant habitat in this 

area, we have therefore, determined that 

this national park land does not meet 

the definition of critical habitat under 

section 3(5)(A) of the Act, and, 

therefore, are not proposing critical 

habitat in Hawaii Volcanoes National 

Park. 


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General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation pursuant to section 7 of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it applies only 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it limits only destruction or 

adverse modification of critical habitat. 

By its nature, the prohibition on adverse 

modification is designed to ensure those 

areas that contain the physical and 

biological features essential to the 

conservation of the species or 

unoccupied areas that are essential to 

the conservation of the species are not 

eroded to the point that the unit does 

not perform its intended function. 

Critical habitat designation alone, 

however, does not require specific steps 

to improve habitat conditions. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any mandatory 

reasonable and prudent measures or 

terms and conditions. Mandatory 

reasonable and prudent alternatives to 

the proposed Federal action would only 

be issued when the biological opinion 

results in a jeopardy or adverse 

modification conclusion. 

We believe the conservation achieved 

through implementing habitat 

conservation plans (HCPs) or other 

habitat management plans can be greater 

than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project, and they are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed project. Thus, 

any HCP or management plan which 

considers enhancement as the 

management standard will provide as 

much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for Drosophila aglaia, D. differens, 

D. hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia. In 

general the educational benefit of a 

critical habitat designation always 

exists, although in some cases it may be 

redundant with other educational 

effects. For example, HCPs have 

significant public input and may largely 

duplicate the educational benefit of a 

critical habitat designation. This benefit 

is closely related to a second, more 

indirect benefit: that designation of 

critical habitat would inform State 

agencies and local governments about 

areas that could be conserved under 

State laws or local ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are making 

in this rule because these areas have 

been identified and managed by the 

landowners as having habitat containing 

the features essential to the conservation 

of the species. Consequently, we believe 

that the informational benefits are 

already provided even though these 

areas are not designated as critical 

habitat. Additionally, the purpose 

normally served by the designation of 

informing State agencies and local 

governments about areas which would 

benefit from protection and 

enhancement of habitat for the 11 

picture-wing flies is already well 

established among State and local 

governments and Federal agencies. State 

and local governments and Federal 

agencies have existing knowledge in 

those areas that we are proposing to 

exclude from the final designation of 

critical habitat on the basis of other 

existing habitat management 

protections. 

The Service is conducting an 

economic analysis of the impacts of the 

proposed critical habitat designation 

and related factors, which will be 

available for public review and 

comment. Based on public comment on 

that document, the proposed 

designation itself, and the information 

in the final economic analysis, 

additional areas beyond those identified 

in this assessment may be excluded 

from critical habitat by the Secretary 

under the provisions of section 4(b)(2) 

of the Act. This is provided for in the 

Act, and in our implementing 

regulations at 50 CFR 424.19. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

We are considering excluding The 

Nature Conservancy of Hawaii’s 

Kamakou Preserve on Molokai and 

lands owned by Kamehameha Schools 

on the island of Hawaii from the final 

designation of critical habitat because 

we believe that they are appropriate for 

exclusion pursuant to the ‘‘other 

relevant factor’’ provisions of section 

4(b)(2). We specifically solicit comment, 

however, on the inclusion or exclusion 

of such areas. 

The Nature Conservancy of Hawaii 

(TNCH) 

The Nature Conservancy of Hawaii’s 

Kamakou Preserve is occupied by 

Drosophila differens and contains the 

necessary features essential to the 

conservation of the species. Special 

management considerations and 

protections for this area include active 

management such as nonnative species 

removal and ungulate fencings. Failure 

to implement these active management 

measures, all of which require voluntary 

landowner support and participation, 

virtually assures the extinction of this 

species. Many of these types of 


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conservation actions in the areas of 

Molokai are carried out as part of 

TNCH’s participation with landowner 

incentive based programs and by the 

landowner’s own initiative. These 

conservation activities, which are 

described in more detail below, require 

substantial voluntary cooperation by 

TNCH and other cooperating 

landowners and local residents. 

The following evaluation describes 

our reasoning in considering that the 

benefits of excluding the lands outweigh 

the benefits of including them, and that 

the exclusion will not result in the 

extinction of the species. The Service 

paid particular attention to the 

following issues: (1) To what extent a 

critical habitat designation would confer 

regulatory conservation benefits on this 

species; (2) to what extent the 

designation would educate members of 

the public such that conservation efforts 

would be noticeably enhanced; and (3) 

whether a critical habitat designation 

would have a positive, neutral, or 

negative impact on voluntary 

conservation efforts on this privately 

owned TNCH land, as well as other nonFederal lands on Molokai that could 

contribute to the recovery of the species. 

If a critical habitat designation reduces 

the likelihood that voluntary 

conservation activities will be carried 

out on Molokai, and at the same time 

fails to confer a counter-balancing 

positive regulatory or educational 

benefit to the species, then the benefits 

of excluding such areas from critical 

habitat outweigh the benefits of 

including them. Although the results of 

this type of evaluation will vary 

significantly depending on the 

landowners, geographic areas, and 

species involved, we believe the TNCH 

lands on Molokai merit this evaluation. 

(1) Benefits of Inclusion 

The primary direct benefit of 

inclusion of TNCH’s Kamakou Preserve 

as critical habitat would result from the 

requirement under section 7 of the Act 

that Federal agencies consult with us to 

ensure that any proposed Federal 

actions do not destroy or adversely 

modify critical habitat. The benefit of a 

critical habitat designation would 

ensure that any actions authorized, 

funded, or carried out by a Federal 

agency would not likely destroy or 

adversely modify any critical habitat. 

Without critical habitat, some sitespecific projects might not trigger 

consultation requirements under the Act 

in areas where species are not currently 

present; in contrast, Federal actions in 

areas occupied by listed species would 

still require consultation under section 

7 of the Act. However, these lands are 

already occupied habitat for Drosophila 

differens. Therefore, any Federal 

activities that may affect these areas will 

in all likelihood require section 7 

consultation. 

In the last 10 years, we have 

conducted 45 informal and 12 formal 

consultations under section 7 on the 

entire island of Molokai. None of these 

consultations involved this TNCH land. 

As a result of the low level of previous 

Federal activity on these TNCH lands, 

and after considering the future Federal 

activities that might occur on these 

lands, it is the Service’s opinion that 

there is likely to be a low number of 

future Federal activities that would 

negatively affect the species’ PCEs on 

TNCH lands. The land is in permanent 

conservation status and is not expected 

to be developed. Section 7 consultations 

are expected to be limited to projects 

involving Federal funding for 

conservation activities to improve the 

PCEs for this species, rather than 

negatively impact these features. The 

possibility of such activity cannot be 

ruled out entirely, but it can best be 

described as having a low likelihood of 

occurrence. Therefore, we anticipate 

little additional regulatory benefits from 

including this preserve in critical 

habitat beyond what is already provided 

by the existing section 7 nexus for 

habitat areas occupied by the listed 

species. 

Another possible benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area, 

and this may focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas that are 

occupied by the species and contain the 

necessary features essential to the 

conservation of the species. Information 

provided to a wide audience of the 

public, including other parties engaged 

in conservation activities, about 

Drosophila differens and the features 

that are essential to its conservation 

identified on TNCH lands on Molokai 

could have a positive conservation 

benefit. While we believe this 

educational outcome is important for 

the conservation of this species, we 

believe it has already been achieved 

through the existing management, 

education, and public outreach efforts 

carried out by TNCH and their 

conservation partners. TNCH has a welldeveloped public outreach 

infrastructure that includes magazines, 

newsletters, and well-publicized public 

events on Molokai and other areas 

throughout Hawaii. These and other 

media provide the education benefits 

provided in this proposed rule and the 

conservation importance of this Molokai 

reserve and its conservation value for D. 

differens. A designation of critical 

habitat would add little to this effort 

and would simply affirm what is 

already known and widely accepted by 

Hawaii’s conservationists, public 

agencies, and much of the general 

public concerning the conservation 

value of these lands. 

The following discussion about this 

preserve demonstrates that the public is 

already aware of the importance of this 

area for the conservation of this picturewing fly. Drosophila differens is 

reported from TNCH’s Kamakou 

Preserve, which is located in the East 

Molokai Mountains. Kamakou Preserve 

was established by a grant of a perpetual 

conservation easement from the private 

landowner to TNCH. This preserve is 

included in the State’s Natural Area 

Partnership (NAP) program, which 

provides matching funds for the 

management of private lands that have 

been permanently dedicated to 

conservation (TNCH1998a—pages 1–10, 

1998b—pages 1–12). 

Under the NAP program, the State of 

Hawaii provides matching funds on a 

two-to-one basis for management of 

private lands dedicated to conservation. 

In order to qualify for this program, the 

land must be dedicated in perpetuity 

through transfer of fee title or a 

conservation easement to the State or a 

cooperating entity. The land must be 

managed by the cooperating entity or a 

qualified landowner according to a 

detailed management plan approved by 

the Board of Land and Natural 

Resources. Once approved, the 6-year 

partnership agreement between the 

State and the managing entity is 

automatically renewed each year so that 

there are always six years remaining in 

the term, although the management plan 

is updated and funding amounts are 

reauthorized by the board at least every 

six years. By April 1 of any year, the 

managing partner may notify the State 

that it does not intend to renew the 

agreement; however, in such case, the 

partnership agreement remains in effect 

for the balance of the existing 6-year 

term, and the conservation easement 

remains in full effect in perpetuity. 

The conservation easement may be 

revoked by the landowner only if State 

funding is terminated without the 

concurrence of the landowner and 

cooperating entity. Prior to terminating 

funding, the State must conduct one or 

more public hearings. The NAP program 

is funded through real estate 

conveyance taxes, which are placed in 

a Natural Area Reserve Fund. 

Participants in the NAP program must 

provide annual reports to the Hawaii 

Department of Land and Natural 


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Resources (DLNR), and DLNR makes 

annual inspections of the work in the 

reserve areas (See Haw. Rev. Stat. Secs. 

195–1–195–11 and Hawaii 

Administrative Rules Secs. 13–210). 

Management programs within Kamakou 

preserve are documented in long-range 

management plans and yearly 

operational plans. These plans detail 

management measures that protect, 

restore, and enhance the native species 

and their habitats within the preserve 

and in adjacent areas (TNCH 1998a—

pages 1–10, 1998b—pages 1–12). These 

management measures address the 

factors that led to the listing of this 

species, including control of nonnative 

species of ungulates, rodents, weeds, 

and fire control. In addition, habitat 

restoration and monitoring are also 

included in these plans. 

Kamakou Preserve 

The primary management goals 

within Kamakou Preserve are to prevent 

degradation of native forest by reducing 

feral ungulate damage, suppressing 

wildfires, and improving or maintaining 

the integrity of native ecosystems in 

selected areas of the preserve by 

reducing the effects of nonnative plants. 

Kamakou Preserve provides occupied 

habitat for one population of D. 

differens. Specific management actions 

to address feral ungulate impacts 

include the construction of fences, 

including strategic fencing (fences 

placed in proximity to natural barriers 

such as cliffs); staff hunting; and 

implementation of organized hunting 

through the Molokai Hunters Working 

Group. By monitoring ungulate activity 

within the preserve, the staff are able to 

direct hunters to problem areas (areas of 

high feral ungulate densities), thereby 

increasing hunting success. If increased 

hunting pressure does not reduce feral 

ungulate activity in the preserve, the 

preserve staff will work with the 

hunting group to identify and 

implement alternative methods for their 

control (TNCH 1998a—pages 1–2). 

The nonnative plant control program 

within Kamakou Preserve focuses on 

habitat-modifying nonnative plants 

(weeds) and prioritizes their control 

according to the degree of threat to 

native ecosystems. A weed priority list 

has been compiled for the preserve, and 

control and monitoring of the highest 

priority species are ongoing. Weeds are 

controlled manually, chemically, or 

through a combination of both 

techniques. Preventive measures 

(prevention protocol to keep weeds out) 

are required by all who enter the 

preserve. This protocol includes such 

things as brushing footgear before 

entering the preserve to remove seeds of 

nonnative plants. In addition, the 

preserve staff are actively promoting 

awareness of detrimental nonnative 

plants in Hawaii and their impacts to 

native ecosystems in the local 

communities on Molokai through public 

education at schools, fairs, and displays 

at the airport. 

Wildfire pre-suppression and 

response plans are coordinated with the 

Maui County Fire Department and the 

DOFAW Maui District Forester. The 

Kamakou Wildfire Management Plan is 

reviewed annually with the fire 

department and updated as necessary 

(TNCH 1998b—pages 4–5). In the event 

of fires in areas bordering the preserve, 

staff from Kamakou assists with fire 

suppression in concert with Hawaii 

Department of Forestry and Wildlife 

(DOFAW) staff. Natural resource 

monitoring and research address the 

need to track the biological and physical 

resources of the preserve and evaluate 

changes in these resources to guide 

management programs. Vegetation is 

monitored throughout the preserve to 

document long-term ecological changes; 

rare plant species are monitored to 

assess population status; and, following 

fires on the boundaries or within the 

preserve, burned areas are assessed for 

ingress of weeds and recovery of native 

plants. In addition, the preserve staff 

provides logistical support to scientists 

and others who are conducting research 

within the preserve. 

In addition, TNCH, DOFAW, the 

Service, and other Federal agencies 

including the National Park Service, and 

neighboring landowners of East 

Molokai’s watershed areas have formed 

a partnership (East Molokai Watershed 

Partnership) through a memorandum of 

understanding to ensure the protection 

of over 22,000 ac (8,903 ha) of land on 

the island. While the partnership is still 

in its infancy, the members have agreed, 

in principle, to participate in 

cooperative management activities 

within the East Molokai watershed 

because they believe that effective 

management is best achieved through 

the coordinated actions of all major 

landowners in the watershed. 

In sum, the Service believes that a 

critical habitat designation for 

Drosophila differens on TNCH lands on 

Molokai would provide a relatively low 

level of additional regulatory 

conservation benefit to the fly species 

and its PCEs beyond what is already 

provided by existing section 7 

consultation requirements due to the 

physical presence of this species. Any 

minimal regulatory conservation 

benefits would accrue through the 

benefit associated with additional 

section 7 consultation associated with 

critical habitat. Based on a review of 

past consultations and consideration of 

the likely future activities in this 

specific area, there is little Federal 

activity expected to occur on this 

privately owned land that would trigger 

section 7 consultation. The Service also 

believes that a critical habitat 

designation provides little additional 

educational benefits since the 

conservation value is already well 

known by the landowner, the State, 

Federal agencies, private organizations, 

and the general public. 

(2) Benefits of Exclusion 

Proactive voluntary conservation 

efforts are necessary to prevent the 

extinction and promote the recovery of 

this listed species of picture-wing fly on 

Molokai (Shogren et al. 1999—page 

1,260, Wilcove and Chen 1998—page 

1,407, Wilcove et al. 1998—page 614). 

Consideration of this concern is 

especially important in areas where 

species have been extirpated and their 

recovery requires access and permission 

for reintroduction efforts (Bean 2002—

page 414; Wilcove et al. 1998—page 

614). As described earlier, TNCH has a 

history of entering into conservation 

agreements with various Federal and 

State agencies and other private 

organizations on their lands. The Nature 

Conservancy’s mission is to preserve the 

plants, animals and natural 

communities that represent the diversity 

of life on Earth by protecting the lands 

and waters they need to survive. The 

Service believes that D. differens will 

benefit substantially from TNCH’s 

voluntary management actions due to a 

reduction in ungulate browsing and 

habitat conversion, a reduction in 

competition with nonnative weeds, and 

a reduction in risk of fire. The 

conservation benefits of critical habitat 

are primarily regulatory or prohibitive 

in nature. But on Molokai, simply 

preventing ‘‘harmful activities’’ will not 

slow the extinction of listed plant 

species (Bean 2002—pages 409, 412, 

414–415, and 419–420). 

Where consistent with the discretion 

provided by the Act, the Service 

believes it is necessary to implement 

policies that provide positive incentives 

to private landowners to voluntarily 

conserve natural resources and that 

remove or reduce disincentives to 

conservation (Wilcove et al. 1998—page 

614). Thus, we believe it is essential for 

the recovery of this species to build on 

continued conservation activities such 

as these with a proven partner, and to 

provide positive incentives for other 

private landowners on Molokai who 

might be considering implementing 

voluntary conservation activities but 


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have concerns about incurring 

incidental regulatory or economic 

impacts. 

Approximately 80 percent of the 

habitat of one-half of all imperiled 

species in the United States occurs 

partly or solely on private lands where 

the Service has little management 

authority (Wilcove et al. 1996—page 2). 

In addition, recovery actions involving 

the reintroduction of listed species onto 

private lands require the voluntary 

cooperation of the landowner (Bean 

2002—pages 409, 412, 414–415, and 

419–420; James 2002—page 270; Knight 

1999—page 224; Main et al. 1999—page 

1,264; Norton 2000—pages 1,221–1,222; 

Shogren et al. 1999—page 1,260; 

Wilcove et al. 1998—page 614). 

Therefore, ‘‘a successful recovery 

program is highly dependent on 

developing working partnerships with a 

wide variety of entities, and the 

voluntary cooperation of thousands of 

non-Federal landowners and others is 

essential to accomplishing recovery for 

listed species’’ (Crouse et al. 2002—page 

720). Because the Federal Government 

owns relatively little land on Molokai, 

and because large tracts of land suitable 

for conservation of threatened and 

endangered species are mostly owned 

by private landowners, successful 

recovery of listed species on Molokai is 

especially dependent upon working 

partnerships and the voluntary 

cooperation of non-Federal landowners. 

Another benefit of excluding this area 

from the critical habitat designation 

includes relieving additional regulatory 

burden and costs associated with the 

preparation of portions of section 7 

consultation documents related to 

critical habitat. While the cost of adding 

these additional sections to assessments 

and consultations is relatively minor, 

there could be delays which can 

generate real costs to some project 

proponents. However, because critical 

habitat in this case is only proposed for 

occupied areas already subject to 

section 7 consultation and jeopardy 

analysis, we anticipate this reduction 

would be minimal. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

Based on the above considerations, 

we have determined that the benefits of 

excluding TNCH’s Kamakou Preserve 

from the final designation of critical 

habitat outweigh the benefits of 

including it as critical habitat for 

Drosophila differens. This conclusion is 

based on the following factors: 

(a) In the past, TNCH has cooperated 

with Federal and State agencies, and 

private organizations to implement on 

their lands voluntary conservation 

activities that have resulted in tangible 

conservation benefits. 

(b) Simple regulation of ‘‘harmful 

activities’’ is not sufficient to conserve 

this species. Landowner cooperation 

and support is required to prevent the 

extinction and promote the recovery of 

Drosophila differens on Molokai due to 

the need to implement proactive 

conservation actions such as ungulate 

management, weed control, and fire 

suppression. Future conservation 

efforts, such as control of nonnative 

species, will require the cooperation of 

TNCH and other non-Federal 

landowners on Molokai. Exclusion of 

TNCH land from this critical habitat 

designation will help the Service 

maintain and improve this partnership 

by formally recognizing the positive 

contributions of TNCH to recovery of D. 

differens, and by streamlining or 

reducing unnecessary regulatory 

oversight. 

(c) Given the current partnership 

agreements between TNCH and many 

organizations, the Service believes the 

additional regulatory and educational 

benefits of including this land as critical 

habitat are relatively small. The 

designation of critical habitat can serve 

to educate the general public as well as 

conservation organizations regarding the 

potential conservation value of an area, 

but this goal is already being 

accomplished through the identification 

of this area in the management plans 

described above. Likewise, there will be 

little additional Federal regulatory 

benefit to the species because (i) there 

is a low likelihood that this area will be 

negatively affected to any significant 

degree by Federal activities requiring 

section 7 consultation, and (ii) this area 

is already occupied by the listed species 

and a section 7 nexus already exists. 

The Service is unable to identify any 

other potential benefits associated with 

critical habitat for this TNCH preserve. 

(d) It is well documented that 

publicly owned lands and lands owned 

by conservation organizations such as 

TNCH, alone, are too small and poorly 

distributed to provide for the 

conservation of most listed species 

(Bean 2002—pages 409, 412, 414–415, 

and 419–420; Crouse et al. 2002—page 

720). Excluding this TNCH land from 

critical habitat may, by way of example, 

provide positive incentives to other 

non-Federal landowners on Molokai 

who own lands that could contribute to 

listed species recovery if voluntary 

conservation measures on these lands 

are implemented (Norton 2000—pages 

1,221–1,222; Main et al. 1999—page 

1,263; Shogren et al. 1999—page 1,260; 

Wilcove and Chen 1998—page 1,407). 

As resources and nondiscretionary 

workload allow, the Service will 

consider future revisions or 

amendments to this proposed critical 

habitat rule if landowners affected by 

this rule develop conservation programs 

or partnerships such that the Service 

can find the benefits of exclusion 

outweigh the benefits of inclusion. 

In conclusion, we find that the 

exclusion of critical habitat on TNCH’s 

Kamakou Preserve from the final 

designation of critical habitat of 

Drosophila differens, would most likely 

have a net positive conservation effect 

on the recovery and conservation of the 

species and the features essential to its 

conservation when compared to the 

positive conservation effects of a critical 

habitat designation. As described above, 

the overall benefits to this species of a 

critical habitat designation for this 

TNCH area is relatively small. In 

contrast, we believe that this exclusion 

will enhance our existing partnership 

with TNCH, and it will set a positive 

example and provide positive incentives 

to other non-Federal landowners who 

may be considering implementing 

voluntary conservation activities on 

their lands. We conclude there is a 

higher likelihood of beneficial 

conservation activities occurring in this 

and other areas of Molokai without 

designated critical habitat than there 

would be with designated critical 

habitat in this TNCH preserve and, 

therefore, we are proposing to exclude 

these lands from the final designation of 

critical habitat for D. differens. 

(4) Exclusion of This Unit Will Not 

Cause Extinction of the Species 

If this proposed exclusion is made 

final in our final critical habitat 

designation, no specific areas will be 

designated as critical habitat for 

Drosophila differens. In considering 

whether or not exclusion of this 

preserve might result in the extinction 

of Drosophila differens the Service first 

considered the impacts to this species. 

It is the Service’s conclusion that the 

TNCH’s mission and management plans 

will provide as much or more net 

conservation benefits as would be 

provided if this preserve was designated 

as critical habitat. These management 

plans, which are described above, will 

provide tangible proactive conservation 

benefits that will reduce the likelihood 

of extinction for D. differens in this area 

of Molokai and increase the likelihood 

of its recovery. Extinction for this 

species as a consequence of this 

exclusion is unlikely because there are 

no known threats in these preserves due 

to any current or reasonably anticipated 

Federal actions that might be regulated 

under section 7 of the Act. Further, this 


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area is already occupied by D. differens 

and thereby receives benefits from the 

section 7 protections of the Act, should 

such an unlikely Federal threat actually 

materialize. The exclusion of this 

preserve from the final designation of 

critical habitat will not increase the risk 

of extinction to this species, and it may 

increase the likelihood this species will 

recover by encouraging other 

landowners to implement voluntary 

conservation activities as TNCH has 

done. 

In sum, the Service finds that the 

benefits of excluding TNCH’s Kamakou 

Preserve from critical habitat outweighs 

the benefits of including the area, and 

the proposed exclusion will not result 

in the extinction of the species because 

there are no known threats in these 

preserves due to any current or 

anticipated Federal actions. 

Kamehameha Schools 

Lands owned by Kamehameha 

Schools are within three proposed units 

(Drosophila heteroneura—Unit 5—

Gaspar’s Dairy, D. heteroneura—Unit 

6—Kipuka at 4,900′, and D. 

heteroneura—Unit 7—Pit Crater) and 

are occupied habitat with the features 

essential to the conservation of 

Drosophila heteroneura. Active 

management such as fire control, 

nonnative species removal, and 

ungulate fencing within these three 

units will benefit D. heteroneura. 

Failure to implement these active 

management measures, all of which 

require voluntary landowner support 

and participation, virtually assures the 

extirpation of D. heteroneura from these 

areas. Many of these types of 

conservation actions on the island of 

Hawaii are carried out as part of 

Kamehameha School’s participation 

with landowner incentive based 

programs and by actions taken on the 

landowner’s initiative. These activities, 

which are described in more detail 

below, require substantial voluntary 

cooperation by Kamehameha Schools 

and other cooperating landowners and 

local residents. 

The following analysis describes the 

likely conservation benefits of a critical 

habitat designation compared to the 

conservation benefits without critical 

habitat designation. We paid particular 

attention to the following issues: To 

what extent a critical habitat 

designation would confer regulatory 

conservation benefits on this species; to 

what extent the designation would 

educate members of the public such that 

conservation efforts would be enhanced; 

and whether a critical habitat 

designation would have a positive, 

neutral, or negative impact on voluntary 

conservation efforts on this privately 

owned land as well as other non-Federal 

lands on the island of Hawaii that could 

contribute to recovery. If a critical 

habitat designation reduces the 

likelihood that voluntary conservation 

activities will be carried out on the 

island of Hawaii, and at the same time, 

fails to confer a counterbalancing 

positive regulatory or educational 

benefit to the species, then the benefits 

of excluding such areas from critical 

habitat outweigh the benefits of 

including them. Although the results of 

this type of evaluation will vary 

significantly depending on the 

landowners, geographic areas, and the 

species involved, we believe the 

Kamehameha Schools lands on the 

island of Hawaii merit this evaluation. 

(1) Benefits of Inclusion 

Critical habitat is proposed for 

Drosophila heteroneura in three units 

(see above) on lands owned by 

Kamehameha Schools. The primary 

direct benefit of inclusion of 

Kamehameha Schools’ lands as critical 

habitat would result from the 

requirement under section 7 of the Act 

that Federal agencies consult with us to 

ensure that any proposed Federal 

actions do not destroy or adversely 

modify critical habitat. The benefit of a 

critical habitat designation would 

ensure that any actions funded by or 

permits issued by a Federal agency 

would not likely destroy or adversely 

modify any critical habitat. Without 

critical habitat, some site-specific 

projects might not trigger consultation 

requirements under the Act in areas 

where the species is not currently 

present; in contrast, Federal actions in 

areas occupied by listed species would 

still require consultation under section 

7 of the Act. However, these lands are 

already occupied habitat for D. 

heteroneura. Therefore, any Federal 

activities that may affect these areas will 

in all likelihood require section 7 

consultation. 

Historically, we have conducted no 

formal or informal consultations under 

section 7 on the island of Hawaii on 

these three areas owned by 

Kamehameha Schools. Each of these 

three areas are part of a larger parcel 

owned by Kamehameha Schools and on 

which are reported other listed species 

(both plants and animals). As a result of 

the low level of previous Federal 

activity on these Kamehameha Schools 

lands, and after considering that the 

likely future Federal activities that 

might occur on these lands would be 

minimal and associated with Federal 

funding for conservation activities, it is 

our opinion that there is likely to be a 

low number of future Federal activities 

that would negatively affect D. 

heteroneura habitat on Kamehameha 

Schools lands. Therefore, we anticipate 

little additional regulatory benefit from 

including the Kamehameha Schools 

lands in critical habitat beyond what is 

already provided for by the existing 

section 7 nexus for habitat areas 

occupied by the listed species. 

Another possible benefit is that the 

designation of critical habitat can serve 

to educate the public regarding the 

potential conservation value of an area, 

and this may focus and contribute to 

conservation efforts by other parties by 

clearly delineating areas that are 

occupied by the species and contain the 

necessary features essential to the 

conservation of the species. Information 

provided to a wide audience of the 

public, including other parties engaged 

in conservation activities, about 

Drosophila heteroneura and the features 

that are essential to its conservation and 

identified on Kamehameha Schools 

lands on the island of Hawaii could 

have a positive conservation benefit. 

While we believe this educational 

outcome is important for the 

conservation of this species, we believe 

it has already been achieved through 

existing management, education, and 

public outreach efforts carried out by 

Kamehameha Schools. 

(2) Benefits of Exclusion 

Proactive voluntary conservation 

efforts are necessary to prevent the 

extinction and promote the recovery of 

Drosophila heteroneura on the island of 

Hawaii (Shogren et al. 1991—page 

1,260; Wilcove and Chen 1998—page 

1,407; Wilcove et al. 1998—page 614). 

Consideration of this concern is 

especially important in areas where the 

species has been extirpated and its 

recovery may require access and 

permission for reintroduction efforts 

(Bean 2002—page 414; Wilcove et al. 

1998—page 614). For example, D. 

heteroneura has been extirpated from 

many of its historical locations, 

including on other Kamehameha 

Schools lands, and reestablishment is 

likely not possible without human 

assistance and landowner cooperation. 

Kamehameha Schools are involved in 

several important voluntary 

conservation agreements and are 

currently carrying out some 

management activities which contribute 

to the conservation of this species. They 

have developed two programs that 

demonstrate their conservation 

commitments, Aina Ulu and Malama 

Aina. The Aina Ulu program 

implements land-based education 

programs, whereas Malama Aina 


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delivers focused stewardship of natural 

resources. Malama Aina has been 

focused in two distinct areas, Keauhou 

in Kau District and North-South Kona, 

with a budget commitment in 2002 of 

$1,000,000, not including staff 

expenses. 

Kamehameha Schools North-South 

Kona natural resource conservation 

efforts focus on three distinct areas: 

Honaunau Forest and Honaunau Uka, 

Kaupulehu Kauila Lama Forest and 

Kaupulehu Uka, and Pulehua. One 

proposed unit (Drosophila 

heteroneura—Unit 5—Gaspar’s Dairy) is 

located in the Honaunau Forest and 

Honaunau Uka area while a second 

proposed unit (D. heteroneura—Unit 

7—Pit Crater) is located in the 

Kaupulehu Kauila Lama Forest and 

Kaupulehu Uka area. Kamehameha 

Schools started a weed control program 

in 2002 in Honaunau Forest and 

Honaunau Uka. In both the Forest and 

Uka areas, they will continue the weed 

control program, along with a timber 

certification program to write certifiable 

plans and complete inventories. In the 

Honaunau Uka area, they will construct 

an ungulate exclosure fence and issue a 

contract for a botanical survey. Funds 

allocated for the implementation of 

these projects total $52,500 to 

Honaunau Forest and $29,500 to 

Honaunau Uka. 

Conservation activities in the Aina 

Ulu program at Kaupulehu Kauila Lama 

Forest include an intern program, an 

outreach coordinator, multimedia 

curriculum development, small 

mammal and weed control. Funds 

allocated for these projects total 

$70,700. 

Malama Aina projects at Kaupulehu 

Uka include timber certification, large 

mammal and weed control, ungulate 

exclosure fencing, inventory, 

monitoring and data analysis of 

conservation actions and road 

maintenance. Funds allocated for those 

projects total $101,000. Partners include 

Hawaii Forest Industry Association, the 

Service, DOFAW, local residents, PIA 

Sports Properties (lessee), U.S. Forest 

Service, National Tropical Botanical 

Garden (lessee), and Honokaa High 

School. 

A third proposed unit (Drosophila 

heteroneura—Unit 6—Kipuka at 4,900 

ft) is located near Puu Lehua, an area 

that is under development for protection 

and restoration of 6,000 ac (2,428 ha) of 

native forest habitat through fencing and 

feral ungulate control. Future additional 

management actions that are planned in 

this area include additional fencing, 

control and removal of nonnative 

species, fire prevention, and 

reintroduction of rare and listed species 

(Hawaiian Silversword Foundation 

2006—page 1). 

As described earlier, Kamehameha 

Schools has a history of entering into 

conservation agreements with various 

Federal and State agencies and private 

organizations on biologically important 

portions of their lands. These 

arrangements have taken a variety of 

forms. They include partnership 

commitments such as the Dryland 

Forest Working Group which provides 

assistance in managing the Kaupulehu 

Kauila Lama Forest and Kaupulehu Uka 

area. Drosophila heteroneura will 

benefit substantially from their 

voluntary management actions because 

of a reduction in ungulate browsing and 

habitat conversion, a reduction in 

competition with nonnative weeds, and 

a reduction in risk of fire. 

The conservation benefits of critical 

habitat are primarily regulatory or 

prohibitive in nature. But on the island 

of Hawaii, simply preventing ‘‘harmful 

activities’’ will not slow the extinction 

of listed species including Drosophila 

heteroneura. Where consistent with the 

discretion provided by the Act, we 

believe it is necessary to implement 

policies that provide positive incentives 

to private landowners to voluntarily 

conserve natural resources, and that 

remove or reduce disincentives to 

conservation (Michael 2001—pages 34 

and 36–37). Thus, we believe it is 

essential for the recovery of D. 

heteroneura to build on continued 

conservation activities, such as these 

with a proven partner, and to provide 

incentives for other private landowners 

on the island of Hawaii who might be 

considering implementing voluntary 

conservation activities but have 

concerns about incurring incidental 

regulatory or economic impacts. 

Approximately 80 percent of 

imperiled species in the United States 

occur partly or solely on private lands 

where the Service has little management 

authority (Wilcove et al. 1996 page 2). 

In addition, recovery actions involving 

the reintroduction of listed species onto 

private lands require the voluntary 

cooperation of the landowner (Bean 

2002—page 414; James 2002—page 270; 

Knight 1999—page 224; Main et al. 

1999—page 1,263; Norton 2000—pages 

1,221–1,222; Shogren et al. 1999—page 

1,260; Wilcove et al. 1998—page 614). 

Therefore, ‘‘a successful recovery 

program is highly dependent on 

developing working partnerships with a 

wide variety of entities, and the 

voluntary cooperation of thousands of 

non-Federal landowners and others is 

essential to accomplishing recovery for 

listed species’’ (Crouse et al. 2002—page 

720). 

Because large tracts of land suitable 

for conservation of threatened and 

endangered species are mostly owned 

by private landowners, successful 

recovery of listed species on the island 

of Hawaii is especially dependent upon 

working partnerships and the voluntary 

cooperation of private landowners. 

Another benefit of excluding these 

areas from the critical habitat 

designation includes relieving 

additional regulatory burden and costs 

associated with the preparation of 

portions of section 7 consultation 

documents related to critical habitat. 

While the cost of adding these 

additional sections to assessments and 

consultations is relatively minor, there 

could be delays which can generate real 

costs to some project proponents. 

However, because critical habitat in this 

case is only proposed for occupied areas 

already subject to section 7 consultation 

and jeopardy analysis, we anticipate 

that this reduction would be minimal. 

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

Based on the above considerations, 

we have determined that the benefits of 

excluding lands owned by Kamehameha 

Schools from the final designation of 

critical habitat for Drosophila 

heteroneura outweigh the benefits of 

including them as critical habitat. This 

conclusion is based on the following 

factors: 

(a) In the past, Kamehameha Schools 

has cooperated with Federal and State 

agencies, and private organizations to 

implement on their lands voluntary 

conservation activities that have 

resulted in tangible conservation 

benefits. 

(b) Simple regulation of ‘‘harmful 

activities’’ is not sufficient to conserve 

these species. Landowner cooperation 

and support is required to prevent the 

extinction and promote the recovery of 

all of the listed species on this island, 

because of the need to implement 

proactive conservation actions such as 

ungulate management, weed control, 

and fire suppression. This need for 

landowner cooperation is especially 

acute because the three proposed units 

(Gaspar’s Dairy, Pit Crater, and Kipuka 

at 4,900 ft) are occupied by Drosophila 

heteroneura. In addition, many 

previously occupied D. heteroneura 

habitat sites on other Kamehameha 

Schools lands remain unoccupied by 

this species. Future conservation efforts, 

such as translocation of this species 

back into unoccupied habitat on these 

lands, will require the cooperation of 

Kamehameha Schools. Exclusion of 

Kamehameha Schools lands from the 

final designation of critical habitat will 


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help the Service maintain and improve 

this partnership by formally recognizing 

the positive contributions of 

Kamehameha Schools to rare species 

recovery, and by streamlining or 

reducing unnecessary oversight. 

(c) Given the current partnership 

agreements between Kamehameha 

Schools and many other organizations, 

we believe the benefits of including 

Kamehameha Schools lands as critical 

habitat are relatively small. The 

designation of critical habitat can serve 

to educate the general public as well as 

conservation organizations regarding the 

potential conservation value of an area, 

but this goal is already being 

accomplished through the identification 

of this area in the management 

agreements described above. Likewise, 

there will be little Federal regulatory 

benefit to the species because: (i) There 

is a low likelihood that these three 

proposed critical habitat units will be 

negatively affected to any significant 

degree by Federal activities requiring 

section 7 consultation, and (ii) these 

areas are already occupied by the 

species and a section 7 nexus already 

exists. We are unable to identify any 

other potential benefits associated with 

critical habitat for these proposed units. 

(d) We believe it is necessary to 

establish positive working relationships 

with representatives of the Native 

Hawaiian community. This approach of 

excluding critical habitat and entering 

into a mutually agreeable conservation 

partnership strengthens this 

relationship and should lead to 

conservation benefits beyond the 

boundaries of Kamehameha Schools 

land. It is an important long-term 

conservation goal of the Service to work 

cooperatively with the Native Hawaiian 

community to help recover Hawaii’s 

endangered species. This partnership 

with Kamehameha Schools is an 

important step toward this goal. 

(e) It is well documented that publicly 

owned lands and lands owned by 

private organizations alone are too small 

and poorly distributed to provide for the 

conservation of most listed species 

(Bean 2002—pages 409, 412, 414–415, 

and 419–420; Crouse et al. 2002—page 

720). Excluding these Kamehameha 

Schools lands from critical habitat may, 

by way of example, provide positive 

social, legal, and economic incentives to 

other non-Federal landowners on the 

island of Hawaii who own lands that 

could contribute to listed species 

recovery if voluntary conservation 

measures on these lands are 

implemented (Norton 2000—pages 

1,221–1,222; Main et al. 1999—page 

1,263; Shogren et al. 1999—page 1,260; 

Wilcove and Chen 1998—page 1,407). 

In conclusion, we find that the 

exclusion of lands owned by 

Kamehameha Schools from the final 

designation of critical habitat would 

most likely have a net positive 

conservation effect on the recovery and 

conservation of Drosophila heteroneura 

when compared to the positive 

conservation effects of a critical habitat 

designation. As described above, the 

overall benefits to this species of a 

critical habitat designation on 

Kamehameha Schools lands are 

relatively small. In contrast, we believe 

this exclusion will enhance our existing 

partnership with Kamehameha Schools, 

and it will set a positive example and 

provide positive incentives to other 

non-Federal landowners who may be 

considering implementing voluntary 

conservation activities on their lands. 

We conclude there is a greater 

likelihood of beneficial conservation 

activities occurring in these and other 

areas of the island of Hawaii without 

designated critical habitat than there 

would be with designated critical 

habitat on these Kamehameha Schools 

lands. 

(4) Exclusion of This Unit Will Not 

Cause Extinction of the Species 

In considering whether or not 

exclusion of Kamehameha Schools 

lands from the final designation of 

critical habitat for Drosophila 

heteroneura, we first considered the 

impacts to the species. The agreements 

described above will provide tangible 

proactive conservation benefits that will 

reduce the likelihood of extinction for 

the species in these areas of the island 

of Hawaii and increase the likelihood of 

its recovery. Extinction of this species as 

a consequence of this proposed 

exclusion is unlikely because there are 

no known threats in the proposed units 

due to any current or reasonably 

anticipated Federal actions that might 

be regulated under section 7 of the Act. 

Further, these areas are already 

occupied by the species and thereby 

benefit from the section 7 protections of 

the Act, should such an unlikely 

Federal threat actually materialize. 

The exclusion of these Kamehameha 

Schools lands will not increase the risk 

of extinction to the species, and it may 

increase the likelihood the species will 

recover by encouraging other 

landowners to implement voluntary 

conservation activities as Kamehameha 

Schools has done. In addition, critical 

habitat is being proposed on other areas 

of the island of Hawaii for this species 

(Kau Forest, Pauahi, Waiea, and 

Waihaka Gulch units) within its 

historical range. In sum, the above 

analysis concludes that the proposed 

exclusion of Kamehameha Schools 

lands from the final designation of 

critical habitat on the island of Hawaii 

will have a net beneficial impact with 

little risk of negative impacts. Therefore, 

the exclusion of the Kamehameha 

Schools lands will not cause extinction 

and should in fact improve the chances 

of recovery for Drosophila heteroneura. 

Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for 11 

species of Hawaiian picture-wing flies is 

being prepared. We will announce the 

availability of the draft economic 

analysis as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

Internet at http://www.fws.gov/ 

pacificislands, or by contacting the 

Pacific Islands Fish and Wildlife Office 

directly (see ADDRESSES section). 

Peer Review 

In accordance with the December 16, 

2004, Office of Management and 

Budget’s ‘‘Final Information Quality 

Bulletin for Peer Review,’’ we will 

obtain comments from at least three 

independent scientific reviewers 

regarding the scientific data and 

interpretations contained in this 

proposed rule. The purpose of such 

review is to ensure that our critical 

habitat decision is based on 

scientifically sound data, assumptions, 

and analyses. We have posted our 

proposed peer review plan on our Web 

site at http://www.fws.gov/midwest/ 

Science/. Public comments on our peer 

review were obtained through May 26, 

2006, after which we finalized our peer 

review plan and selected peer 

reviewers. We will provide those 

reviewers with copies of this proposal 

as well as the data used in the proposal. 

Peer reviewer comments that are 

received during the public comment 

period will be considered as we make 

our final decision on this proposal, and 

substantive peer reviewer comments 

will be specifically discussed in the 

final rule. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests must be received 

within 45 days of the date of publication 

of the proposal in the Federal Register. 


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Such requests must be made in writing 

and be addressed to the Field 

Supervisor at the address in the 

ADDRESSES section above. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical language or jargon that 

interferes with its clarity? (3) Does the 

format of the proposed rule (grouping 

and order of the sections, use of 

headings, paragraphing, and so forth) 

aid or reduce its clarity? (4) Would the 

rule be easier to understand if it were 

divided into more (but shorter) sections? 

(5) Is the description of the rule in the 

SUPPLEMENTARY INFORMATION section of 

the preamble helpful in understanding 

the proposed rule? What else could we 

do to make this proposed rule easier to 

understand? 

Send a copy of any comments that 

concern how we could make this 

proposed rule easier to understand to: 

Office of Regulatory Affairs, Department 

of the Interior, Room 7229, 1849 C 

Street, NW., Washington, DC 20240. 

You also may e-mail your comments to 

this address: Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, and Executive Order 

12630. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, the 

agency will need to consider alternative 

regulatory approaches. Since the 

determination of critical habitat is a 

statutory requirement pursuant to the 

Act, we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. The draft 

economic analysis can be obtained from 

the Internet Web site at http:// 

www.fws.gov/pacificislands or by 

contacting the Pacific Islands Fish and 

Wildlife Office directly (see ADDRESSES

section). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared pursuant to section 

4(b)(2) of the ESA and Executive Order 

12866. This draft economic analysis will 

provide the required factual basis for the 

RFA finding. Upon completion of the 

draft economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211) on 

regulations that significantly affect 

energy supply, distribution, and use. 

Executive Order 13211 requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. This 

proposed rule to designate critical 

habitat for 11 species of Hawaiian 

picture-wing flies is a significant 

regulatory action under Executive Order 

12866 in that it may raise novel legal 

and policy issues, however, and it is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action and no Statement of Energy 

Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 


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statute or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments. The lands being 

proposed for critical habitat designation 

are owned by the State of Hawaii or 

private citizens. None of these entities 

fit the definition of ‘‘small governmental 

jurisdiction.’’ As such, a Small 

Government Agency Plan is not 

required. We will, however, further 

evaluate this issue as we conduct our 

economic analysis and as appropriate, 

review and revise this assessment as 

warranted. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in Hawaii. The designation of critical 

habitat in areas currently occupied by 

the 11 species of picture-wing flies may 

affect Federal actions and would have 

little incremental impact on State and 

local governments and their activities. 

The designation may have some benefit 

to these governments in that the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. Thus 

it may assist these local governments in 

long-range planning (rather than waiting 

for case-by-case section 7 consultations 

to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We have 

proposed designating critical habitat in 

accordance with the provisions of the 

Endangered Species Act. This proposed 

rule uses standard property descriptions 

and identifies the primary constituent 

elements within the proposed areas to 

assist the public in understanding the 

habitat needs of the 11 species of 

Hawaiian picture-wing flies. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s requirement at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

Government-to-Government basis. We 

are not proposing to designate critical 

habitat for these species on Tribal lands 

as defined in the above documents. 

Additionally, the proposed designation 

does not contain any lands that we have 

identified as impacting Tribal trust 

resources. 

References Cited 

A complete list of all references cited 

in this rule is available upon request 

from the Field Supervisor, Pacific 

Islands Fish and Wildlife Office (see 

ADDRESSES section). 

Author(s) 

The author of this document is the 

staff of the Fish and Wildlife Service. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, and 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47019 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.11(h), revise the entry for 

‘‘Drosophila aglaia, D. differens, D. 

hemipeza, D. heteroneura, D. 

montgomeryi, D. mulli, D. musaphilia, 

D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia’’

under ‘‘INSECTS’’ in the List of 

Endangered and Threatened Wildlife to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

INSECTS

* * * * * * * 

Fly, Hawaiian picture-wing.Drosophila aglaia .... U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila differens U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila 

hemipeza.

U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila 

heteroneura.

U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila 

montgomeryi.

U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila mulli ...... U.S.A. (HI) .............. NA ........................... T 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila 

musaphilia.

U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

* * * * * * * 

Fly, Hawaiian picture-wing.Drosophila obatai ... U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila 

ochrobasis.

U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila 

substenoptera.

U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

Fly, Hawaiian picture-wing.Drosophila 

tarphytrichia.

U.S.A. (HI) .............. NA ........................... E 756 17.95(h) NA 

* * * * * * * 

3. Amend § 17.95(i), by adding critical 

habitat for ‘‘Drosophila aglaia, D. 

differens, D. hemipeza, D. heteroneura, 

D. montgomeryi, D. mulli, D. 

musaphilia, D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia’’ in 

the same alphabetical order in which 

these species appear in the table in 

§ 17.11(h) under ‘‘INSECTS’’ to read as 

follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(i) Insects. 

* * * * * 

Drosophila aglaia 

(1) Critical habitat units are depicted 

for County of Honolulu, Oahu, Hawaii, 

on the maps below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Dry to mesic, lowland, Diospyros 

sp., ohia and koa forest; and 

(ii) The larval host plant Urera glabra. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat units are described 

below. Coordinates are in Universal 

Transverse Mercator (UTM) Zone 4 with 

units in meters using North American 

Datum of 1983 (NAD83). 

(5) Note: Map 1 (index map of critical 

habitat units for Drosophila aglaia, D. 

differens, D. hemipeza, D. heteroneura, 

D. montgomeryi, D. mulli, D. 

musaphilia, D. obatai, D. ochrobasis, D. 

substenoptera, and D. tarphytrichia) 

follows: 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with PROPOSAL3
47020 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

(6) Drosophila aglaia—Unit 1—

Palikea, City and County of Honolulu, 

Island of Oahu, Hawaii. 

(i) Drosophila aglaia—Unit 1—

Palikea: 593273, 2367958; 593273, 

2368022; 593337, 2368022; 593337, 

2367958. 

(ii) Note: Map 2 of Drosophila 

aglaia—Unit 1—Palikea follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.000</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47021 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.001</GPH>
47022 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

Drosophila differens 

(1) Critical habitat is depicted for 

County of Maui, island of Molokai, 

Hawaii, on the map below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Wet, montane, ohia forest; and 

(ii) The larval host plants Clermontia 

arborescens ssp. waihiae, C. granidiflora 

ssp. munroi, C. oblongifolia ssp. 

brevipes, and C. pallida. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) The critical habitat unit is 

described below. Coordinates are in 

Universal Transverse Mercator (UTM) 

Zone 4 with units in meters using North 

American Datum of 1983 (NAD83). 

(5) Note: For an index map of the 

critical habitat unit for Drosophila 

differens and 10 other Hawaiian picturewing fly species, see paragraph (5) of the 

critical habitat entry for D. aglaia. 

(6) Drosophila differens—Unit 1—Puu 

Kolekole, Maui County, Island of 

Molokai, Hawaii. 

(i) Drosophila differens—Unit 1—Puu 

Kolekole: 718406, 2335494; 718406, 

2335558; 718470, 2335558; 718470, 

2335494. 

(ii) Note: Map 1 of Drosophila 

differens—Unit 1—Puu Kolekole 

follows: 


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Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47023 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.002</GPH>
47024 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

Drosophila hemipeza 

(1) Critical habitat units are depicted 

for County of Honolulu, Oahu, Hawaii, 

on the maps below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Dry to mesic, lowland, ohia and 

koa forest; and 

(ii) The larval host plants Cyanea 

angustifolia, C. calycina, C. grimesiana 

ssp. grimesiana, C. grimesiana ssp. 

obatae, C. membranacea, C. pinnatifida, 

C. sessifolia, C. superba ssp. superba, 

Lobelia hypoleuca, L. hiihauensis, L. 

yuccoides, and Urera kaalae. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat units are described 

below. Coordinates are in Universal 

Transverse Mercator (UTM) Zone 4 with 

units in meters using North American 

Datum of 1983 (NAD83). 

(5) Note: For an index map of critical 

habitat units for Drosophila hemipeza 

and 10 other Hawaiian picture-wing fly 

species, see paragraph (5) of the critical 

habitat entry for D. aglaia. 

(6) Drosophila hemipeza—Unit 1—

Makaha Valley East, City and County of 

Honolulu, Island of Oahu, Hawaii. 

(i) Drosophila hemipeza—Unit 1—

Makaha Valley East: 587461, 2377992; 

587461, 2378055; 587524, 2378055; 

587524, 2377992. 

(ii) Note: Map 1 of Drosophila 

hemipeza—Unit 1–Makaha Valley East 

follows: 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47025 

(7) Drosophila hemipeza—Unit 2—

Palikea, City and County of Honolulu, 

Island of Oahu, Hawaii. 

(i) Drosophila hemipeza—Unit 2—

Palikea: 593273, 2367958; 593273, 

2368022; 593337, 2368022; 593337, 

2367958. 

(ii) Note: Map 2 of Drosophila 

hemipeza—Unit 2—Palikea follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.003</GPH>
47026 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.004</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47027 

Drosophila heteroneura 

(1) Critical habitat units are depicted 

for County of Hawaii, island of Hawaii, 

Hawaii, on the maps below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Mesic to wet, montane, ohia and 

koa forest; and 

(ii) The larval host plants 

Cheirodendron trigynum ssp. trigynum, 

C. clermontioides, C. hawaiiensis, C. 

kohalae, C. lindseyana, C. montis-loa, C. 

paviflora, C. peleana, and C. pyrularia. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat units are depicted 

for County of Hawaii, island of Hawaii, 

Hawaii, on the maps below. 

(5) NoteTM For an index map of critical 

habitat units for Drosophila heteroneura 

and 10 other Hawaiian picture-wing fly 

species, see paragraph (5) of the critical 

habitat entry for D. aglaia. 

(6) Drosophila heteroneura—Unit 1—

Kau Forest Reserve, Hawaii County, 

Island of Hawaii, Hawaii. 

(i) Drosophila heteroneura—Unit 1—

Kau Forest Reserve: 858986, 2130883; 

858986, 2130947; 859050, 2130947; 

859050, 2130883. 

(ii) Note: Map 1 of Drosophila 

heteroneura—Unit 1—Kau Forest 

Reserve follows: 


jlentini on PROD1PC65 with PROPOSAL3
47028 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

(7) Drosophila heteroneura—Unit 2—

Pauahi, Hawaii County, Island of 

Hawaii, Hawaii. 

(i) Drosophila heteroneura—Unit 2—

Pauahi: 833211, 2159779; 833211, 

2159843; 833275, 2159843; 833275, 

2159779. 

(ii) Note: Map 2 of Drosophila 

heteroneura—Unit 2—Pauahi follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.005</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47029 

(8) Drosophila heteroneura—Unit 3—

Waiea, Hawaii County, Island of Hawaii, 

Hawaii. 

(i) Drosophila heteroneura—Unit 3—

Waiea: 836184, 2144180; 836184, 

2144244; 836248, 2144244; 836248, 

2144180. 

(ii) Note: Map 3 of Drosophila 

heteroneura—Unit 3—Waiea follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.006</GPH>
47030 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

(9) Drosophila heteroneura—Unit 4—

Waihaka Gulch, Hawaii County, Island 

of Hawaii, Hawaii. 

(i) Drosophila heteroneura—Unit 4—

Waihaka Gulch: 868655, 2138565; 

868655, 2138629; 868718, 2138629; 

868718, 2138565. 

(ii) Note: Map 4 of Drosophila 

heteroneura—Unit 4—Waihaka Gulch 

follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.007</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47031 

(10) Drosophila heteroneura—Unit 

5—Gaspar’s Dairy, Hawaii County, 

Island of Hawaii, Hawaii. 

(i) Drosophila heteroneura—Unit 5—

Gaspar’s Dairy: 833811, 2157064; 

833811, 2157128; 833875, 2157128; 

833875, 2157064. 

(ii) Note: Map 5 of Drosophila 

heteroneura—Unit 5—Gaspar’s Dairy 

follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.008</GPH>
47032 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

(11) Drosophila heteroneura—Unit 

6—Kipuka at 4,900 ft, Hawaii County, 

Island of Hawaii, Hawaii. 

(i) Drosophila heteroneura—Unit 6—

Kipuka at 4,900 ft: 835692, 2166366; 

835692, 2166430; 835756, 2166430; 

835756, 2166366. 

(ii) Note: Map 6 of Drosophila 

heteroneura—Unit 6—Kipuka at 4,900 ft 

follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.009</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47033 

(12) Drosophila heteroneura—Unit 

7—Pit Crater, Hawaii County, Island of 

Hawaii, Hawaii. 

(i) — heteroneura—Unit 7—Pit Crater: 

820293, 2185168; 820293, 2185232; 

820357, 2185232; 820357, 2185168. 

(ii) Note: Map 7 of Drosophila 

heteroneura—Unit 7—Pit Crater 

follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.010</GPH>
47034 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

(13) Drosophila heteroneura—Kona 

Refuge, Hawaii County, Island of 

Hawaii, Hawaii, was considered but not 

proposed for critical habitat. Note: Map 

8 of Drosophila heteroneura—Kona 

Refuge follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.011</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47035 

(14) Drosophila heteroneura—

Thurston Lava Tube, Hawaii County, 

Island of Hawaii, Hawaii, was 

considered but not proposed for critical 

habitat. Note: Map 9 of Drosophila 

heteroneura—Thurston Lava Tube 

follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.012</GPH>
47036 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.013</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47037 

Drosophila montgomeryi 

(1) Critical habitat units are depicted 

for County of Honolulu, Oahu, Hawaii, 

on the maps below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Dry to mesic, lowland, diverse ohia 

and koa forest; and 

(ii) The larval host plant Urera kaalae. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat units are described 

below. Coordinates are in Universal 

Transverse Mercator (UTM) Zone 4 with 

units in meters using North American 

Datum of 1983 (NAD83). 

(5) Note: For an index map of critical 

habitat units for Drosophila 

montgomeryi and 10 other Hawaiian 

picture-wing fly species, see paragraph 

(5) of the critical habitat entry for D. 

aglaia. 

(6) Drosophila montgomeryi—Unit 

1—Kaluaa Gulch, City and County of 

Honolulu, Island of Oahu, Hawaii. 

(i) Drosophila montgomeryi—Unit 1—

Kaluaa Gulch: 593285, 2373778; 

593285, 2373842; 593348, 2373842; 

593348, 2373778. 

(ii) Note: Map 1 of Drosophila 

montgomeryi—Unit 1—Kaluaa Gulch 

follows: 


jlentini on PROD1PC65 with PROPOSAL3
47038 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

(7) Drosophila montgomeryi—Unit 

2—Palikea, City and County of 

Honolulu, Island of Oahu, Hawaii. 

(i) Drosophila montgomeryi—Unit 2—

Palikea: 593273, 2367958; 593273, 

2368022; 593337, 2368022; 593337, 

2367958. 

(ii) Note: Map 2 of Drosophila 

montgomeryi—Unit 2—Palikea follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.014</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47039 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.015</GPH>
47040 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

Drosophila mulli 

(1) Critical habitat units are depicted 

for County of Hawaii, island of Hawaii, 

Hawaii, on the maps below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Wet, montane, ohia forest; and 

(ii) The larval host plant Pritchardia 

beccariana. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat units are described 

below. Coordinates are in Universal 

Transverse Mercator (UTM) Zone 4 with 

units in meters using North American 

Datum of 1983 (NAD83). 

(5) Note: For an index map of critical 

habitat units for Drosophila mulli and 

10 other Hawaiian picture-wing fly 

species, see paragraph (5) of the critical 

habitat entry for D. aglaia. 

(6) Drosophila mulli—Unit 1—Olaa 

Forest, Hawaii County, Island of Hawaii, 

Hawaii. 

(i) Drosophila mulli—Unit 1—Olaa 

Forest: 898368, 2155813; 898368, 

2155877; 898432, 2155877; 898432, 

2155813. 

(ii) Note: Map 1 of Drosophila mulli—

Unit 1—Olaa Forest follows: 


jlentini on PROD1PC65 with PROPOSAL3
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47041 

(7) Drosophila mulli—Unit 2—

Waiakea Forest, Hawaii County, Island 

of Hawaii, Hawaii. 

(i) Drosophila mulli—Unit 2—

Waiakea Forest: 896950, 218903; 

896950, 2168967; 897014, 2168967; 

897014, 2168903. 

(ii) Note: Map 2 of Drosophila mulli—

Unit 2—Waiakea Forest follows: 


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47042 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.017</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47043 

Drosophila Musaphilia 

(1) Critical habitat is depicted for 

County of Kauai, Kauai, Hawaii, on the 

map below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Mesic, montane, ohia and koa 

forest; and 

(ii) The larval host plant Acacia koa. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) The critical habitat unit is 

described below. Coordinates are in 

Universal Transverse Mercator (UTM) 

Zone 4 with units in meters using North 

American Datum of 1983 (NAD83). 

(5) Note: For an index map of the 

critical habitat units for Drosophila 

musaphilia and 10 other Hawaiian 

picture-wing fly species, see paragraph 

(5) of the critical habitat entry for D. 

aglaia. 

(6) Drosophila musaphilia—Unit 1—

Waimea Canyon Road at 2600 ft, Kauai 

County, Island of Kauai, Hawaii. 

(i) Drosophila musaphilia—Unit 1—

Waimea Canyon Road at 2600 ft: 

431443, 2437498; 431443, 2437561; 

431506, 2437561; 431506, 2437498. 

(ii) Note: Map 1 of Drosophila 

musaphilia—Unit 1—Waimea Canyon 

Road at 2,600 ft follows: 


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47044 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.018</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47045 

Drosophila obatai 

(1) Critical habitat is depicted for 

County of Honolulu, Oahu, Hawaii, on 

the map below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Dry to mesic, lowland, ohia and 

koa forest; and 

(ii) The larval host plant Pleomele 

forbesii. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) The critical habitat unit is 

described below. Coordinates are in 

Universal Transverse Mercator (UTM) 

Zone 4 with units in meters using North 

American Datum of 1983 (NAD83). 

(5) Note: For an index map of critical 

habitat units for Drosophila obatai and 

10 other Hawaiian picture-wing fly 

species, see paragraph (5) of the critical 

habitat entry for D. aglaia. 

(6) Drosophila obatai—Unit 1—

Wailupe, City and County of Honolulu, 

Island of Oahu, Hawaii. 

(i) Drosophila obatai—Unit 1—

Wailupe: 628839, 2358049; 628839, 

2358112; 628903, 2358112; 628903, 

2358049. 

(ii) Note: Map 1 of Drosophila 

obatai—Unit 1—Wailupe follows: 


jlentini on PROD1PC65 with PROPOSAL3
47046 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.019</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47047 

Drosophila ochrobasis 

(1) Critical habitat units are depicted 

for County of Hawaii, island of Hawaii, 

Hawaii, on the maps below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Mesic to wet, montane, ohia, koa, 

and Cheirodendron sp. forest; and 

(ii) The larval host plants Clermontia 

calophylla, C. clermontioides, C. 

drepanomorpha, C. hawaiiensis, C. 

kohalae, C. lindseyana, C. montis-loa, C. 

parviflora, C. peleana, C. pyrularia, C. 

waimeae, Myrsine lessertiana, and M. 

sandwicensis. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat units are described 

below. Coordinates are in Universal 

Transverse Mercator (UTM) Zone 4 with 

units in meters using North American 

Datum of 1983 (NAD83). 

(5) Note: For an index map of critical 

habitat units for Drosophila ochrobasis 

and 10 other Hawaiian picture-wing fly 

species, see paragraph (5) of the critical 

habitat entry for D. aglaia. 

(6) Drosophila ochrobasis—Unit 1—

Kipuka 14, Hawaii County, Island of 

Hawaii, Hawaii. 

(i) Drosophila ochrobasis—Unit 1—

Kipuka 14: 884116, 2178983; 884116, 

2179047; 884180, 2179047; 884180, 

2178983. 

(ii) Note: Map 1 of Drosophila 

ochrobasis—Unit 1—Kipuka 14 follows: 


jlentini on PROD1PC65 with PROPOSAL3
47048 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

(7) Drosophila ochrobasis—Unit 2—

Kohala Mountains, Hawaii County, 

Island of Hawaii, Hawaii. 

(i) Drosophila ochrobasis—Unit 2—

Kohala Mountains: 848294, 2222646; 

848294, 2222710; 848358, 2222710; 

848358, 2222646. 

(ii) Note: Map 2 of Drosophila 

ochrobasis—Unit 2—Kohala Mountains 

follows: 


jlentini on PROD1PC65 with PROPOSAL3EP15AU06.020</GPH>
Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47049 


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47050 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

Drosophila substenoptera 

(1) Critical habitat is depicted for 

County of Honolulu, Oahu, Hawaii, on 

the map below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Mesic to wet, lowland to montane, 

ohia and koa forest; and 

(ii) The larval host plants 

Cheirodendron platyphyllum ssp. 

platyphyllum, C. trigynum ssp. 

trigynum, Tetraplasandra kavaiensis, 

and T. oahuensis. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat is described below. 

Coordinates are in Universal Transverse 

Mercator (UTM) Zone 4 with units in 

meters using North American Datum of 

1983 (NAD83). 

(5) Note: For an index map of critical 

habitat units for Drosophila 

substenoptera and 10 other Hawaiian 

picture-wing fly species, see paragraph 

(5) of the critical habitat entry for D. 

aglaia. 

(6) Drosophila substenoptera—Unit 

1—Mt. Kaala, City and County of 

Honolulu, Island of Oahu, Hawaii. 

(i) Drosophila substenoptera—Unit 

1—Mt. Kaala: 588297, 2378026; 588297, 

2378090; 588361, 2378090; 588361, 

2378026. 

(ii) Note: Map 1 of Drosophila 

substenoptera—Unit 1—Mt. Kaala 

follows: 


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Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47051 


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47052 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

Drosophila tarphytrichia 

(1) Critical habitat units are depicted 

for County of Honolulu, Oahu, Hawaii, 

on the maps below. 

(2) The primary constituent elements 

of critical habitat are the habitat 

components that provide: 

(i) Dry to mesic, lowland, ohia and 

koa forest; and 

(ii) The larval host plant Charpentiera 

obovata. 

(3) Critical habitat does not include 

man-made structures, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located, existing on the effective date of 

this rule and not containing one or more 

of the primary constituent elements. 

(4) Critical habitat units are described 

below. Coordinates are in Universal 

Transverse Mercator (UTM) Zone 4 with 

units in meters using North American 

Datum of 1983 (NAD83). 

(5) Note: For an index map of critical 

habitat units for Drosophila 

tarphytrichia and 10 other Hawaiian 

picture-wing fly species, see paragraph 

(5) of the critical habitat entry for D. 

aglaia. 

(6) Drosophila tarphytrichia—Unit 

1—Kaluaa Gulch, City and County of 

Honolulu, Island of Oahu, Hawaii. 

(i) Drosophila tarphytrichia—Unit 1—

Kaluaa Gulch: 593285, 2373778; 

593285, 2373842; 593348, 2373842; 

593348, 2373778. 

(ii) Note: Map 1 of Drosophila 

tarphytrichia—Unit 1—Kaluaa Gulch 

follows: 


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Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 47053 

(7) Drosophila tarphytrichia—Unit 

2—Palikea, City and County of 

Honolulu, Island of Oahu, Hawaii. 

(i) Drosophila tarphytrichia—Unit 2—

Palikea: 593273, 2367958; 593273, 

2368022; 593337, 2368022; 593337, 

2367958. 

(ii) Note: Map 2 of Drosophila 

tarphytrichia—Unit 2—Palikea follows: 


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47054 Federal Register / Vol. 71, No. 157 / Tuesday, August 15, 2006 / Proposed Rules 

* * * * * Dated: July 24, 2006. 

Matt Hogan, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–6840 Filed 8–14–06; 8:45 am] 

BILLING CODE 4310–55–C 


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