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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]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notification of finding.

      ( print 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,                         *glen_knowles@fws.gov.*                         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.                          ( print 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                           ( print 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                           ( print 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