[Federal Register Volume 89, Number 190 (Tuesday, October 1, 2024)]
[Proposed Rules]
[Pages 79880-79884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22405]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2024-0107; FXES1111090FEDR-245-FF09E21000]


Endangered and Threatened Wildlife and Plants; 12-Month Not-
Warranted Finding for the Las Vegas Bearpoppy

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notification of finding.

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[[Page 79881]]

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list the Las Vegas bearpoppy 
(Arctomecon californica) as an endangered or threatened species under 
the Endangered Species Act of 1973, as amended (Act). The Las Vegas 
bearpoppy is a plant in the poppy family. It is endemic to the eastern 
Mojave Desert in southern Nevada and northwest Arizona. After a 
thorough review of the best available scientific and commercial 
information, we find that listing the Las Vegas bearpoppy as an 
endangered or threatened species is not warranted at this time. 
However, we ask the public to submit to us at any time any new 
information relevant to the status of the Las Vegas bearpoppy or its 
habitat.

DATES: The finding in this document was made on October 1, 2024.

ADDRESSES: A detailed description of the basis for this finding is 
available on the internet at https://www.regulations.gov under Docket 
No. FWS-R8-ES-2024-0107. Supporting information used to prepare this 
finding is also available for public inspection, by appointment, during 
normal business hours at the Southern Nevada Fish and Wildlife Office. 
Please submit any new information, materials, comments, or questions 
concerning this finding to the person listed under FOR FURTHER 
INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Glen Knowles, Field Supervisor, 
Southern Nevada Fish and Wildlife Office, 702-515-5230, 
<a href="/cdn-cgi/l/email-protection#482f242d26172326273f242d3b082e3f3b662f273e"><span class="__cf_email__" data-cfemail="d3b4bfb6bd8cb8bdbca4bfb6a093b5a4a0fdb4bca5">[email protected]</span></a>. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Background

    Under section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.), we 
are required to make a finding on whether or not a petitioned action is 
warranted within 12 months after receiving any petition that we have 
determined contains substantial scientific or commercial information 
indicating that the petitioned action may be warranted (``12-month 
finding''). We must make a finding that the petitioned action is: (1) 
Not warranted; (2) warranted; or (3) warranted, but precluded by other 
listing activity. We must publish a notification of the 12-month 
finding in the Federal Register.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations at part 424 of title 50 of the Code of Federal Regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Lists of Endangered and 
Threatened Wildlife and Plants (Lists). The Act defines ``species'' as 
including any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature. The Act defines ``endangered 
species'' as any species that is in danger of extinction throughout all 
or a significant portion of its range (16 U.S.C. 1532(6)), and 
``threatened species'' as any species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range (16 U.S.C. 1532(20)). Under section 
4(a)(1) of the Act, a species may be determined to be an endangered 
species or a threatened species because of any of the following five 
factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself. However, the mere 
identification of any threat(s) does not necessarily mean that the 
species meets the statutory definition of an ``endangered species'' or 
a ``threatened species.'' In determining whether a species meets either 
definition, we must evaluate all identified threats by considering the 
expected response by the species, and the effects of the threats--in 
light of those actions and conditions that will ameliorate the 
threats--on an individual, population, and species level. We evaluate 
each threat and its expected effects on the species, then analyze the 
cumulative effect of all of the threats on the species as a whole. We 
also consider the cumulative effect of the threats in light of those 
actions and conditions that will have positive effects on the species, 
such as any existing regulatory mechanisms or conservation efforts. The 
Secretary of the Interior determines whether the species meets the 
Act's definition of an ``endangered species'' or a ``threatened 
species'' only after conducting this cumulative analysis and describing 
the expected effect on the species now and in the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis, which is 
further described in the 2009 Memorandum Opinion on the foreseeable 
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). 
The foreseeable future extends as far into the future as the U.S. Fish 
and Wildlife Service and National Marine Fisheries Service (hereafter, 
the Services) can make reasonably reliable predictions about the 
threats to the species and the species' responses to those threats. We 
need not identify the foreseeable future in terms of a specific period 
of time. We will describe the foreseeable future on a case-by-case 
basis, using the best available data and taking into account 
considerations such as the species' life-history characteristics, 
threat projection timeframes, and environmental variability. In other 
words, the foreseeable future is the period of time over which we can 
make reasonably reliable predictions. ``Reliable'' does not mean 
``certain''; it means sufficient to provide a reasonable degree of 
confidence in the prediction, in light of the conservation purposes of 
the Act.

[[Page 79882]]

    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    In conducting our evaluation of the five factors provided in 
section 4(a)(1) of the Act to determine whether the Las Vegas bearpoppy 
meets the Act's definition of an ``endangered species'' or a 
``threatened species,'' we considered and thoroughly evaluated the best 
scientific and commercial information available regarding the past, 
present, and future stressors and threats. We reviewed the petition, 
information available in our files, and other available published and 
unpublished information for the species. Our evaluation may include 
information from recognized experts; Federal, State, and Tribal 
governments; academic institutions; foreign governments; private 
entities; and other members of the public.
    In accordance with the regulations at 50 CFR 424.14(h)(2)(i), this 
document announces the not-warranted finding on a petition to list the 
Las Vegas bearpoppy. We have also elected to include a brief summary of 
the analysis on which this finding is based. We provide the full 
analysis, including the reasons and data on which the finding is based, 
in the decisional file for the Las Vegas bearpoppy. The following is a 
description of the documents containing this analysis:
    The species assessment form for the Las Vegas bearpoppy contains 
more detailed biological information, a thorough analysis of the 
listing factors, a list of literature cited, and an explanation of why 
we determined that the species does not meet the Act's definition of an 
``endangered species'' or a ``threatened species.'' To inform our 
status review, we completed a species status assessment (SSA) report 
for the species. The SSA report contains a thorough review of the 
taxonomy, life history, ecology, current status, and projected future 
status for the Las Vegas bearpoppy. This supporting information can be 
found on the internet at https://www.regulations.gov under the Docket 
No. FWS-R8-ES-2024-0107.

Previous Federal Actions

    We received a petition dated August 14, 2019, from the Center for 
Biological Diversity requesting that the Las Vegas bearpoppy be listed 
as an endangered species and that critical habitat be designated for 
this species under the Act. On July 22, 2020, we published a 90-day 
finding (85 FR 44265) that the petition contained substantial 
information indicating that listing may be warranted for the species. 
This document constitutes our 12-month finding on the August 14, 2019, 
petition to list the Las Vegas bearpoppy under the Act.

Summary of Finding

    The Las Vegas bearpoppy is a plant in the poppy family 
(Papaveraceae), endemic to southern Nevada and northwest Arizona 
occurring primarily on public lands in the eastern Mojave Desert. We 
identified 12 population groups made up of 86 known Las Vegas bearpoppy 
occurrences across the range of the species; each occurrence contains 
multiple plants. We further divided these groups into four genomic 
groups based on known genetic data; each genomic group contains unique 
alleles which contribute to the viability of the species by increasing 
its ability to adapt to changing conditions.
    The species requires open areas with harsh soil conditions 
unfavorable to many competing species often associated with gypsum 
soils, but it also has been found in limestone areas in the eastern 
parts of its range. Populations near the Grand Canyon with limestone 
substrates are likely an undescribed variation of the broader taxon. 
The Las Vegas bearpoppy can survive long periods of unreliable but 
necessary winter precipitation (November through March) through a long-
lived seed bank of up to 20 years. Some areas occupied by the species 
as seeds within the seedbank can appear unoccupied and will only become 
apparent after adequate winter precipitation and growing conditions 
allowing adult growth.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Las Vegas bearpoppy, and we evaluated all relevant factors under 
the five listing factors, including any regulatory mechanisms and 
conservation measures addressing these threats. The primary threats 
affecting the Las Vegas bearpoppy's biological status include 
development, trampling, nonnative plants, and climate change.
    In this finding, we summarized the effects of development 
(including urbanization, mining, and Lake Mead filling) (Factor A); 
trampling by humans and ungulates (Factor A); climate change (Factor 
E); habitat fragmentation, pollinator limitation, and genetic 
consequences (Factor E); nonnative plants (Factor E); and collection 
(Factor B). In the SSA report, we also discuss the effects of disease 
(Factor C) and herbivory by small mammals and insects (Factor C). 
However, disease and herbivory are only affecting some individual 
plants and not having population-level effects. In this finding, we 
consider all threats impacting the species, including cumulative 
effects to the species. For example, activities in areas associated 
with development and mining may also result in or lead to increased 
adverse effects from trampling, fragmentation, ungulates, and nonnative 
plants.
    The Las Vegas bearpoppy is currently found in 12 population groups 
in Arizona and Nevada. With a deep taproot and a diverse adult 
reproductive life form that produces a long-lived seed bank, the Las 
Vegas bearpoppy is well adapted to withstand stochastic climatic events 
throughout its range. The Las Vegas bearpoppy can exist for many years 
within the seedbank in areas where it may appear extirpated.
    Currently, 7 of the 12 population groups across the range are in 
high or very-high overall habitat condition, meaning that they are 
experiencing limited impacts from threats and have over 90 percent of 
habitat available and undisturbed. An additional 2 population groups 
are in moderate habitat condition, with moderate impacts from threats 
and between 50 and 90 percent of undisturbed habitat. This indicates 
that the species is able to withstand environmental or demographic 
stochastic events, has sufficient redundancy to withstand catastrophic 
events, and has sufficient representation to adapt to near-term 
changing conditions. Where available, demographic data indicate stable 
or increasing populations.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
conclude that the Las Vegas bearpoppy maintains resilient populations 
across its range. Though the species is being impacted by threats such 
as development, trampling, and mining, those threats are occurring in 
only a few population groups, mostly in close proximity to the Las 
Vegas area. Currently, 7 of 12 population groups are in high or very-
high overall habitat condition across the range, indicating

[[Page 79883]]

that the species is able to withstand stochastic events. Additionally, 
the species remains extant across its range and has sufficient 
redundancy to withstand catastrophic events. The species also maintains 
its environmental and genetic representation from its historical 
condition; thus, it retains its ability to adapt to near-term changing 
conditions. Thus, after assessing the best available information, we 
conclude that the Las Vegas bearpoppy is not in danger of extinction 
throughout all of its range.
    Therefore, we proceed with determining whether Las Vegas bearpoppy 
is likely to become endangered within the foreseeable future throughout 
all of its range. We consider the foreseeable future for this species 
to be approximately 50 years, which is the timeframe in which we can 
make reasonably reliable predictions about the threats to the species, 
as well as the species' response to those threats.
    In our future condition analysis, we considered effects from 
urbanization, mining, trampling, and land management and conservation 
efforts. We considered two future scenarios that represent the 
plausible range of future conditions that may influence the viability 
of the Las Vegas bearpoppy. Scenario 1 includes increasing effects from 
urbanization and similar levels of mining, trampling, and other threats 
to the current condition. Scenario 2 includes additional effects from 
urbanization above what is forecast in scenario 1, increased effects 
from mining and trampling, and a decrease in favorable winter 
precipitation. Under scenario 1, 7 of the 12 population groups remain 
in high or very-high overall habitat condition. Under scenario 2, 5 of 
the 12 population groups remain in high or very-high overall habitat 
condition with reductions in 2 population groups in the western areas 
of the range near metropolitan Las Vegas. Overall, we expect that there 
will be some reduction of redundancy and representation in the future 
from the current conditions, but the magnitude of these changes is 
unlikely to dramatically increase extinction risk for the species in 
the next approximately 50 years. No population groups are expected to 
become extirpated.
    Under both plausible future scenarios, between five and seven 
population groups will remain in high and very-high condition, and in 
the scenario with higher projected impacts from threats, two 
populations will decrease to moderate condition. No population groups 
are expected to be extirpated under either future scenario. Though 
there may be shifts in rainfall due to climate change and some 
potential decreases in population growth rates, population models show 
that the species is likely to continue to display positive growth rates 
even under more extreme climate scenarios. Therefore, though there may 
be some decreases in population resiliency and species redundancy in 
the foreseeable future, the Las Vegas bearpoppy is expected to maintain 
enough resiliency, redundancy, and representation such that it will 
maintain viability. After assessing the best available information, we 
conclude that the Las Vegas bearpoppy is not likely to become 
endangered within the foreseeable future throughout all of its range.
    Having determined that the Las Vegas bearpoppy is not in danger of 
extinction or likely to become so within the foreseeable future 
throughout all of its range, we now consider whether it may be in 
danger of extinction or likely to become so within the foreseeable 
future throughout a significant portion of its range--that is, whether 
there is any portion of the species' range for which it is true that 
both (1) the portion is significant; and (2) the species is in danger 
of extinction now or likely to become so within the foreseeable future 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    In undertaking this analysis for the Las Vegas bearpoppy, we began 
by identifying portions of the range where the biological status of the 
species may be different from its biological status elsewhere in its 
range. For this purpose, we considered information pertaining to the 
geographic distribution of (a) individuals of the species, (b) the 
threats that the species faces, and (c) the resiliency condition of 
populations.
    We evaluated the range of the Las Vegas bearpoppy to determine if 
the species is in danger of extinction now or likely to become so 
within the foreseeable future in any portion of its range. Because the 
range of a species can theoretically be divided into portions in an 
infinite number of ways, we focus our analysis on portions of the 
species' range that contribute to the conservation of the species in a 
biologically meaningful way. Due to the connectivity of population 
groups within each genomic group, apparent from the generally broad 
expansive areal distributions of clustered genetically similar 
individuals, we found the most biologically appropriate scale for the 
Las Vegas bearpoppy to be the genomic group scale. We then considered 
whether the threats or their effects on the species are greater in any 
genomic group than in other genomic groups such that the species is in 
danger of extinction now or likely to become so in the foreseeable 
future in that portion.
    We first considered whether the species may be in danger of 
extinction throughout a significant portion of its range. The primary 
current threats to the Las Vegas bearpoppy are urbanization, trampling, 
and climate change. We examined those threats along with the effects 
from mining, Lake Mead filling, habitat fragmentation, pollinator 
limitation, genetic consequences, nonnative plants, collection, 
disease, and herbivory by small mammals and insects, including 
cumulative effects, and considered whether conservation efforts and 
regulatory mechanisms ameliorated any of the effects.
    We found one biologically meaningful portion of the range of the 
Las Vegas bearpoppy where the biological condition and subsequent 
extinction risk of the species differs from its condition elsewhere in 
its range such that the status of the species in that portion may 
differ from the status within the rest of the range. The Northwest 
genomic group of the Las Vegas bearpoppy may have a higher current risk 
of extinction than the rest of the range. This genomic group contains 
the Las Vegas Dunes, Las Vegas Valley, and Sunrise Valley population 
groups. In this genomic group, habitat modification and destruction due 
to urbanization has affected the Las Vegas Valley population group. 
Disturbance associated with trampling is occurring in all three 
population groups. All three population groups are currently in low 
condition.
    After identifying a portion of the range where the species has a 
potentially different status than within the remainder of the range, we 
considered whether or not that portion is a ``significant portion of 
the range'' of the Las Vegas bearpoppy. The Service's most recent 
definition of ``significant'' within agency policy guidance has been 
invalidated by court order (see Desert Survivors v. U.S. Department of 
the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018)). 
Therefore, in light of the court decision, for the purposes of this 
analysis when considering whether this portion is ``significant,'' we 
considered whether the portion may (1) contain a large geographic 
portion of the

[[Page 79884]]

range relative to the entire range for the species; (2) contain high-
quality or high-value habitat relative to the remaining portions of the 
range; or (3) occur in a unique habitat or ecoregion for the species.
    Collectively, the Northwest genomic group makes up 32 percent of 
suitable habitat in the entire range of the Las Vegas bearpoppy. In 
addition, these population groups are made up largely of habitat that 
has been fragmented or degraded by development and anthropogenic 
trampling. Thus, they do not contain high-quality or high-value habitat 
relative to the remainder of the range. They also do not contain any 
unique or unusual habitat for the taxon, nor do they contain any 
habitat essential to any life-history functions that is not found in 
any other portions. Therefore, this portion is not a significant 
portion of the range.
    We next considered whether the Las Vegas bearpoppy is likely to 
become an endangered species within the foreseeable future throughout a 
significant portion of its range. We found two genomic groups, the 
Northeast and Northwest, where the Las Vegas bearpoppy may differ from 
the status of the rest of the range.
    When looking more closely at the Northeast genomic group (which 
contains the Bitter Spring Valley, Gale Hills, Gold Butte, Government 
Wash, Valley of Fire, and White Basin population groups), we conclude 
that the biological condition of the species differs from its condition 
elsewhere in its range, such that the status of the species in that 
portion may differ from its status in any other portion of the species' 
range. Under future scenario 2, which projects a higher magnitude of 
threats and lower conservation, the White Basin population group 
decreases from high to low condition, and the Gale Hills population 
group decreases from high to moderate condition. However, two of the 
remaining population groups in the genomic group remain in high 
condition, and the other two remain in moderate condition. 
Additionally, we define a population group in moderate condition to 
still maintain between 50 and 90 percent available habitat, and less 
than 50 percent of habitat affected by disturbance. Therefore, we 
conclude that the Northeast genomic group will maintain at least 
moderate population resiliency across most of its range. With four of 
six population groups projected to be in high condition in this future 
scenario, and the fifth group in moderate condition, the genomic group 
is projected to maintain similarly high redundancy to the current 
condition. In regard to representation, little to no decrease in 
environmental or genetic representation would be expected. This is 
because similar genomic and environmental conditions are found in the 
remainder of the genomic group, which is projected to be in high 
condition. Overall, we conclude that this genomic group does not have a 
different status than the remainder of the range.
    We then considered the status of the Northwest genomic group within 
the foreseeable future as a significant portion of the species' range. 
In the foreseeable future, this genomic group will likely continue to 
lose population resiliency, as these population groups are located near 
urbanized areas with the highest exposure to development and trampling. 
These population groups may also experience a lowered resiliency in the 
form of lowered growth rates because they are at the lower range of 
precipitation for the species. However, as stated above, this portion 
of the range is not a ``significant portion of the range.''
    Therefore, we find that the species is not in danger of extinction 
or likely to become so within the foreseeable future in any significant 
portion of its range. This does not conflict with the courts' holdings 
in Desert Survivors v. Department of the Interior, 321 F. Supp. 3d 
1011, 1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v. 
Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching 
this conclusion, we did not apply the aspects of the Final Policy on 
Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (79 FR 37578; July 1, 2014), including the 
definition of ``significant'' that those court decisions held to be 
invalid.
    After assessing the best available information, we concluded that 
the Las Vegas bearpoppy is not in danger of extinction or likely to 
become in danger of extinction throughout all of its range or in any 
significant portion of its range. Therefore, we find that listing the 
Las Vegas bearpoppy as an endangered species or threatened species 
under the Act is not warranted. A detailed discussion of the basis for 
this finding can be found in the Las Vegas bearpoppy species assessment 
form and other supporting documents on https://www.regulations.gov 
under Docket No. FWS-R8-ES-2024-0107 (see ADDRESSES, above).

Peer Review

    In accordance with our July 1, 1994, peer review policy (59 FR 
34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo 
on the Peer Review Process, we solicited independent scientific reviews 
of the information contained in the Las Vegas bearpoppy SSA report. The 
Service sent the SSA report to four independent peer reviewers and 
received no responses.

New Information

    We request that you submit any new information concerning the 
taxonomy of, biology of, ecology of, status of, or stressors to the Las 
Vegas bearpoppy to the person specified above under FOR FURTHER 
INFORMATION CONTACT, whenever it becomes available. New information 
will help us monitor the species and make appropriate decisions about 
its conservation and status. We encourage local agencies and 
stakeholders to continue cooperative monitoring and conservation 
efforts.

References

    A complete list of the references used in this petition finding is 
available in the species assessment form, which is available on the 
internet at https://www.regulations.gov under Docket No. FWS-R8-ES-
2024-0107 (see ADDRESSES, above) and upon request from the field office 
(see FOR FURTHER INFORMATION CONTACT, above).

Authors

    The primary authors of this document are the staff members of the 
Species Assessment Team, Ecological Services Program.

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-22405 Filed 9-30-24; 8:45 am]
BILLING CODE 4333-15-P


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