96602 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

(6) NGSO FSS: 10.7–12.7 GHz, 14.4– 

14.5 GHz, 17.3–17.8 GHz, 17.8–18.6 

GHz, 18.8–19.4 GHz, 19.6–20.2 GHz, 

28.35–29.1 GHz, 29.5–30.0 GHz, 40–42 

GHz, and 48.2–50.2 GHz; 

* * * * * 

■ 6. Amend § 25.146 by revising 

paragraphs (a)(1) and (2) to read as 

follows: 

§ 25.146 Licensing and operating 

provisions for NGSO FSS space stations. 

(a) * * * 

(1) Any applicable power flux-density 

levels in Article 21, Section V, Table 

21–4 of the ITU Radio Regulations 

(incorporated by reference, § 25.108), 

except: 

(i) in the 19.3–19.4 GHz and 19.6–19.7 

GHz bands, applicants must certify that 

they will comply with the ITU power 

flux-density limits governing NGSO FSS 

systems in the 17.7–19.3 GHz band; and 

(ii) in the 17.3–17.7 GHz band, 

applicants must certify that they will 

comply with the ITU power flux-density 

limits governing NGSO FSS systems in 

the 17.7–17.8 GHz band; and 

(2) Any applicable equivalent power 

flux-density levels in Article 22, Section 

II, and Resolution 76 of the ITU Radio 

Regulations (both incorporated by 

reference, § 25.108), except that for 

operations in the 17.3–17.8 GHz band, 

applicants must certify that they will 

comply with the ITU equivalent power 

flux-density limits applicable to NGSO 

FSS system operations in the 17.8–18.4 

GHz band. 

* * * * * 

■ 7. Amend § 25.202 by revising 

paragraphs (a)(1)(iii) and (a)(10)(iii) to 

read as follows: 

§ 25.202 Frequencies, frequency tolerance, 

and emission limits. 

(a) * * * 

(1) * * * 

(iii) The U.S. non-Federal Table of 

Frequency Allocations, in § 2.106 of this 

chapter, is applicable between 

Commission space station licensees 

relying on a U.S. ITU filing and 

transmitting to or receiving from 

anywhere on Earth, including airborne 

earth stations, in the 17.3–20.2 GHz or 

27.5–30.0 GHz bands. 

* * * * * 

(10) * * * 

(iii) The following frequencies are 

available for use by Earth Stations in 

Motion (ESIMs) communicating with 

NGSO FSS space stations, subject to the 

provisions in § 2.106 of this chapter: 

10.7–11.7 GHz (space-to-Earth) 

11.7–12.2 GHz (space-to-Earth) 

14.0–14.5 GHz (Earth-to-space) 

17.3–17.7 GHz (space-to-Earth) 

17.7–17.8 GHz (space-to-Earth) 

17.8–18.3 GHz (space-to-Earth) 

18.3–18.6 GHz (space-to-Earth) 

18.8–19.3 GHz (space-to-Earth) 

19.3–19.4 GHz (space-to-Earth) 

19.6–19.7 GHz (space-to-Earth) 

19.7–20.2 GHz (space-to-Earth) 

28.4–28.6 GHz (Earth-to-space) 

28.6–29.1 GHz (Earth-to-space) 

29.5–30.0 GHz (Earth-to-space) 

* * * * * 

[FR Doc. 2024–28390 Filed 12–4–24; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2022–0173; 

FXES1111090FEDR–256–FF09E21000] 

RIN 1018–BF79 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for Swale Paintbrush 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), determine 

endangered species status under the 

Endangered Species Act of 1973 (Act), 

as amended, for the swale paintbrush 

(Castilleja ornata), a flowering plant 

species from New Mexico within the 

United States and the states of 

Chihuahua and Durango in Mexico. 

This rule extends the Act’s protections 

to the species. We find that designating 

critical habitat for the swale paintbrush 

is not prudent. 

DATES: This rule is effective January 6, 

2025. 

ADDRESSES: This final rule, supporting 

materials we used in preparing this rule 

(such as the species status assessment 

report), and comments we received on 

the June 8, 2023, proposed rule are 

available on the internet at https://

www.regulations.gov under Docket No. 

FWS–R2–ES–2022–0173. 

FOR FURTHER INFORMATION CONTACT: 

Shawn Sartorius, Field Supervisor, U.S. 

Fish and Wildlife Service, New Mexico 

Ecological Services Field Office, 2105 

Osuna Road NE, Albuquerque, NM 

87113; telephone 505–346–2525. 

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-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act (16 U.S.C. 1531 et seq.), a 

species warrants listing if it meets the 

definition of an endangered species (in 

danger of extinction throughout all or a 

significant portion of its range) or a 

threatened species (likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range). If we 

determine that a species warrants 

listing, we must list the species 

promptly and designate the species’ 

critical habitat to the maximum extent 

prudent and determinable. We have 

determined that the swale paintbrush 

meets the Act’s definition of an 

endangered species; therefore, we are 

listing it as such. Listing a species as an 

endangered or threatened species can be 

completed only by issuing a rule 

through the Administrative Procedure 

Act rulemaking process (5 U.S.C. 551 et 

seq.). 

What this document does. This rule 

lists the swale paintbrush as an 

endangered species under the Act. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of any of five factors: (A) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that habitat loss and 

fragmentation, hydrological alteration, 

altered fire regimes, effects from 

intensive grazing pressure, exotic plant 

invasion, climate change impacts (i.e., 

drought and increased cool season 

temperatures), and the cumulative 

effects of multiple stressors are threats 

to the swale paintbrush to the degree 

that listing it as an endangered species 

under the Act is warranted. 

Additionally, future collection risk may 

have compounding impacts on the 

species’ viability. 

Section 4(a)(3) of the Act requires the 

Secretary of the Interior (Secretary), to 

the maximum extent prudent and 

determinable, concurrently with listing 

designate critical habitat for the species. 

We have determined that designating 

critical habitat for the swale paintbrush 


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Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96603 

is not prudent due to the threat of 

collection and/or vandalism. 

Previous Federal Actions 

Please refer to our June 8, 2023, 

proposed listing rule (88 FR 37490) for 

a detailed description of previous 

Federal actions concerning the swale 

paintbrush. 

Peer Review 

A species status assessment (SSA) 

team prepared an SSA report for the 

swale paintbrush. The SSA team was 

composed of Service biologists, in 

consultation with other species experts. 

The SSA report represents a 

compilation of the best scientific and 

commercial data available concerning 

the status of the species, including the 

impacts of past, present, and future 

factors (both negative and beneficial) 

affecting the species. 

In accordance with our joint policy on 

peer review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review in listing and recovery actions 

under the Act, we solicited independent 

scientific review of the information 

contained in the swale paintbrush SSA 

report. As discussed in our June 8, 2023, 

proposed rule (88 FR 37490), we sent 

the SSA report to four independent peer 

reviewers and received two responses. 

The peer reviews can be found at 

https://www.regulations.gov at Docket 

No. FWS–R2–ES–2022–0173. In 

preparing the proposed rule, we 

incorporated the results of these 

reviews, as appropriate, into the SSA 

report, which is the foundation for the 

proposed rule and this final rule. A 

summary of the peer review comments 

and our responses can be found in the 

proposed rule (88 FR 37490 at 37491– 

37492, June 8, 2023). 

Summary of Changes From the 

Proposed Rule 

Based on information we received 

during the June 8, 2023, proposed rule’s 

public comment period, we made the 

following changes in this final rule: 

(a) We refine our discussion of grazing 

as a threat under Summary of Biological 

Status and Threats, below; 

(b) We provide additional discussion 

under Prudency Determination for 

critical habitat, below, to better convey 

the risks and consequences of collection 

events for the species. These additions 

provide additional support for our notprudent critical habitat determination; 

and 

(c) We update our list of activities that 

may qualify as ‘‘take’’ under section 9 of 

the Act (see Available Conservation 

Measures, below) to minimize 

redundant wording. 

Summary of Comments and 

Recommendations 

In the proposed rule published on 

June 8, 2023 (88 FR 37490), we 

requested that all interested parties 

submit written comments on the 

proposal by August 7, 2023. We also 

contacted appropriate Federal and State 

agencies, Tribal entities, scientific 

experts and organizations, and other 

interested parties and invited them to 

comment on the proposal. A newspaper 

notice inviting general public comment 

was published in the Hidalgo County 

Herald. We did not receive any requests 

for a public hearing. All substantive 

information we received during the 

comment period has either been 

incorporated directly into this final 

determination or is addressed below. 

Public Comments 

(1) Comment: Multiple commenters 

requested that we designate a 

sufficiently large area of critical 

habitat—hundreds if not thousands of 

acres—to obviate the risk of illegal 

collection and that we designate at least 

two areas of unoccupied critical habitat 

in the United States—ideally on Federal 

or public lands—to serve as 

reintroduction habitat. They suggested 

that much of the southern Animas 

Valley could be assumed to be potential 

habitat given that species had been 

documented at a second site, the Cowan 

Ranch site, in 1993, and the area 

contains many of the physical or 

biological features essential for the 

conservation of the species (i.e., areas 

within the elevational range with the 

same fine-textured soils, vegetative 

communities, and low-gradient swales). 

Our response: As we explain in our 

response to (2) Comment, below, we 

maintain that designating occupied 

areas as critical habitat places increased 

risk on the swale paintbrush; thus, 

designating critical habitat for the 

species is not prudent. Accordingly, we 

do not think it prudent to designate the 

area suggested by these commenters. 

That said, we acknowledge that there 

are likely additional areas throughout 

the Animas Valley that may contain the 

physical and biological features 

essential for the conservation of the 

species. As mentioned in the species’ 

SSA report, we acknowledge that the 

species may possibly be extant at the 

Cowan Ranch site, given its similarity of 

climatic and environmental conditions 

and land-use history to the Gray Ranch 

site (Service 2023, pp. 48–49). However, 

available information that we have on 

the species’ habitat requirements 

indicates that the swale paintbrush may 

be more reliant on microhabitat features 

that are unknown or unmeasured 

(Service 2023, pp. 99–100). 

To aid in the conservation of the 

species, we have conducted habitat 

assessments to identify areas of State 

and Federal lands in the vicinity of the 

known occupied habitat that might 

contain additional populations of the 

species and/or serve as suitable habitat 

for potential future reintroduction 

efforts. Multiple searches for suitable 

habitat on public trust lands—across 

years and surveyors—have failed to 

yield additional observations of swale 

paintbrush or locate habitat comparable 

to the Gray Ranch site (Roth 2017, pp. 

4–6; Service 2024a, entire; Service 

2024b, entire). Additionally, surveys 

within areas of potentially suitable 

habitat on private land in the vicinity of 

the known site have not yielded 

additional populations of the species 

(Roth 2017, pp. 4–6; Roth 2020, pp. 3, 

5). 

When designating critical habitat, the 

Act and our implementing regulations 

require that we distinguish areas that 

are occupied by the species from those 

that are unoccupied by the species at 

the time of listing. That means that we 

cannot designate a large tract of the 

Animas Valley as critical habitat for the 

swale paintbrush without distinguishing 

those areas within the designation that 

are occupied by the species from those 

areas unoccupied by the species. To 

claim that the entire designation is 

‘‘occupied’’ would stretch that term 

beyond its reasonable definition and 

imply that we assume the swale 

paintbrush is more widely distributed 

than it is based on the best available 

information. Therefore, the approach 

suggested by the commenters would not 

avoid the publication of relatively 

precise swale paintbrush locality data, 

which would put this rare species at 

risk of illegal collection and/or 

vandalism events. These risks are 

explained further below, under 

Prudency Determination. 

(2) Comment: Multiple commenters 

requested that we reconsider our ‘‘not 

prudent’’ determination for critical 

habitat. The commenters suggested that 

a ‘‘not prudent’’ determination was not 

defensible for a few reasons. First, one 

of the commenters suggested that we 

did not adequately weigh the collection 

risk against the benefits of critical 

habitat designation, citing as support 

the Natural Resources Defense Council 

v. U.S. Dept. of Interior, 113 F.3d 1121 

(9th Cir. 1997) court opinion. Second, 

multiple commenters stated that there is 

not a documented collection risk to 

swale paintbrush or other plant species; 


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the given examples of illegal collection 

were all from herpetofauna and were all 

dated examples. Finally, they stated that 

the plant has little to no commercial 

value and, thus, does not have as much 

inherent risk for illegal collection. 

Our response: The Act requires the 

Service to designate critical habitat to 

the maximum extent prudent and 

determinable, and we recognize that— 

while the Act provides some limited 

flexibility to find that the designation of 

critical habitat should not be 

undertaken for a particular species— 

not-prudent determinations are 

generally expected to be rare (see 88 FR 

40764 at 40768; June 22, 2023, and 89 

FR 24300 at 24315–24317; April 5, 

2024). Our regulations at 50 CFR 424.12 

outline a non-exhaustive list of 

circumstances in which such 

designation may not be prudent, 

including when the species is 

threatened by taking or other human 

activity and identification of critical 

habitat can be expected to increase the 

degree of such threat to the species. 

In the case that we find the 

designation of critical habitat would not 

be prudent, we must state the rationale 

in our proposed and final rules. While 

we must provide our rationale, a 

weighing analysis—such as the one 

suggested by one of the commenters—is 

conducted in situations when we are 

designating critical habitat and 

considering whether any areas should 

be excluded from such designation 

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

weighing analyses are not a component 

of a determination of whether 

designation of critical habitat may not 

be prudent. This point was noted in the 

dissenting opinion of the Natural 

Resources Defense Council v. U.S. Dept. 

of Interior, 113 F.3d 1121, lawsuit. 

In the preamble to both the 2018 

proposed rule (83 FR 35193 at 35197, 

July 25, 2018) and the 2019 final rule 

(84 FR 45020 at 45040, August 27, 2019) 

revising the critical habitat regulations 

at 50 CFR 424.12 that we administer 

jointly with the National Marine 

Fisheries Service (collectively referred 

to as the ‘‘Services’’), we recognized the 

confusion surrounding past regulatory 

language that indicated that it would 

not be prudent to designate critical 

habitat when ‘‘designation of critical 

habitat would not be beneficial to the 

species.’’ As this phrase has been 

interpreted in ways that we did not 

intend, including creating the 

implication that a balancing analysis 

was a required component of prudency 

determinations under the Act, the 

Services removed the ‘‘not be beneficial 

to the species’’ language from the 

regulations in 2019 (84 FR 45020 at 

45053, August 27, 2019). In the 2023 

proposed rule (88 FR 40764 at 40768 

and 40774, June 22, 2023) and the 2024 

final rule (89 FR 24300 at 24318; April 

5, 2024) to revise the regulations at 50 

CFR 424.12, the Services do not propose 

to reinstate the ‘‘not be beneficial to the 

species’’ language. 

As noted above, under the Act’s 

implementing regulations, we may 

determine that a critical habitat 

designation is not prudent if the species 

is threatened by taking or other human 

activity and identification of critical 

habitat can be expected to increase the 

degree of such threat to the species (50 

CFR 424.12(a)(1)(i)). This portion of the 

Act’s implementing regulations has 

remained constant between the 2019 

regulatory change (84 FR 45020, August 

27, 2019) and the 2024 regulatory 

change (89 FR 24300; April 5, 2024). As 

we state in the proposed listing rule for 

swale paintbrush, effects from illegal 

collection (removal of plants and 

damage to habitat) will exacerbate the 

degree of risk to the known population 

of swale paintbrush (88 FR 37490 at 

37502–37503, June 8, 2023). 

In supporting our not-prudent critical 

habitat determination in the proposed 

listing rule for swale paintbrush, we 

outlined both documented instances of 

harm to similar species in other areas 

and documented instances of such harm 

to other species in the same geographic 

area (88 FR 37490 at 37502–37503, June 

8, 2023). Castilleja species may not be 

as desirable as other plant species (e.g., 

orchids, cacti, and carnivorous plants); 

however, commercial value for 

Castilleja seed is apparent from online 

native seed markets. Although we 

evaluate the exposure likelihood for 

illegal collection of swale paintbrush to 

range from unlikely to possible, the 

severity of consequences is moderate to 

severe, depending on the intensity of 

the collection pressure relative to the 

abundance of plants in a given year. For 

instance, the estimated abundance of 

the known population in 2017 may have 

been as few as two individuals; if 

collection had occurred within that 

year, the implications could have been 

catastrophic to reproductive effort and/ 

or seedbank replenishment. In short, 

given the limited distribution and 

abundance of the species, the limited 

longevity of the plant’s seeds in the 

seedbank and dependence of the species 

on the seedbank, and the high severity 

of consequences that increased 

collection pressure could have on the 

species and its seedbank, the risks of 

adverse effects from collection pose a 

threat to the species. 

Since proposing to designate critical 

habitat involves publicly publishing 

precise locality information and 

distinguishing occupied from 

unoccupied critical habitat units, this 

risk cannot be mitigated. Therefore, we 

maintain the determination that it is not 

prudent to designate critical habitat for 

swale paintbrush. We added additional 

discussion pertaining to the risks 

associated with a critical habitat 

designation under Prudency 

Determination, below. 

(3) Comment: One commenter 

suggested that, as an alternative to 

designating critical habitat, we develop 

and implement a conservation plan for 

swale paintbrush sufficient to support a 

critical habitat exclusion. 

Our response: Although there is not a 

formal conservation plan in place that 

lists swale paintbrush as a covered 

species, there are multiple ongoing 

efforts aimed at benefitting the species, 

its habitat, or both. Critical habitat 

designation is one tool in our toolbox 

for enacting conservation and/or 

recovery of the species, and the lack of 

a critical habitat designation does not 

beget a lack of conservation effort for the 

species. As part of our survey and 

monitoring efforts for the swale 

paintbrush—which were initiated prior 

to proposing to list this species—we 

have been working to identify areas of 

potentially suitable swale paintbrush 

habitat within the Animas Valley that 

might contain unknown populations 

and/or serve as potential reintroduction 

sites for future conservation or recovery 

efforts. Additionally, we have worked 

with the landowners as well as State, 

nongovernmental, and other Federal 

agency partners to collect and maintain 

ex situ seed storage of 77 maternal lines 

of the species, with 59 lines being 

maintained at two storage institutions 

(Service 2023, p. 33). One storage 

collection is intended for research, grow 

out, seed increases, and eventual return 

to the wild; the other collection is 

intended for long-term back-up storage. 

Finally, although the swale paintbrush 

is not listed as a covered species under 

the Malpai Borderlands Habitat 

Conservation Plan (HCP), discussed in 

more detail under Conservation Efforts 

and Regulatory Mechanisms, below, this 

plan has the potential to maintain and 

enhance the grassland ecosystems in 

which the swale paintbrush occurs 

(Service 2023, pp. 31–33). Finally, 

during the June 8, 2023, proposed rule’s 

public comment period, we received 

information from the landowners stating 

that they have, and will, continue to 

avoid grazing near swale paintbrush 

populations during the plant’s active 

season (Animas Foundation 2023, 

entire). 


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Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96605 

Additionally, for a critical habitat 

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

Act, the mechanism through which 

areas of critical habitat would be 

excluded from designation based on 

conservation plans, we must first 

propose to designate critical habitat. As 

discussed in other comments, above, 

and under Prudency Determination, 

below, we are not proposing to 

designate critical habitat due to the risk 

that doing so would exacerbate the 

degree of risk to the known population 

by publishing locality information. 

(4) Comment: One commenter 

provided information and suggested that 

grazing is a more nuanced influential 

factor for the swale paintbrush than was 

presented in the June 8, 2023, proposed 

rule. The commenter also stated that 

observations from the known 

population indicate that the species may 

be reliant on heavy disturbance. 

Our response: In this final rule, we 

add more nuance to the discussion of 

grazing and disturbance under ‘‘Effects 

of Intensive Grazing,’’ below. While the 

swale paintbrush requires canopy gaps 

that are maintained by periodic 

disturbance through natural processes 

(e.g., hydrological cycles, seasonally 

appropriate fires, burrowing, cool 

season grazing), intensive disturbance, 

such as mechanical tillage, particularly 

during the active season, is currently a 

documented threat for Castilleja species 

(see 62 FR 31740, June 11, 1997; 88 FR 

46088 at 46092, July 19, 2023; Service 

2023, pp. 53–82). Thus, the best 

available information does not support 

that the swale paintbrush is reliant on 

heavy disturbance, and further research 

would be needed to assess the use of 

anthropogenic disturbance for 

stimulating swale paintbrush emergence 

and growth. 

I. Final Listing Determination 

Background 

A thorough review of the taxonomy, 

life history, and ecology of the swale 

paintbrush is presented in the SSA 

report (Service 2023, entire). The swale 

paintbrush (also known as the glowing 

Indian paintbrush and the ornate 

paintbrush) is an annual species of 

flowering plant in the family 

Orobanchaceae. There is no taxonomic 

uncertainty surrounding the validity of 

swale paintbrush as a species (Egger 

2002, pp. 193, 195; Integrated 

Taxonomic Information System (ITIS) 

2022, unpaginated); thus, we recognize 

swale paintbrush as a valid species and, 

therefore, a listable entity under the Act. 

The swale paintbrush is native to the 

grassland ecosystems of Hidalgo 

County, New Mexico, in the United 

States and to the eastern Sierra Madre 

Occidental in Chihuahua and Durango 

in Mexico (McIntosh 1994, pp. 329– 

330). The species has been historically 

documented from 13 sites: 2 sites within 

Hidalgo County, New Mexico; 10 sites 

in Chihuahua, Mexico; and 1 site in 

Durango, Mexico. The swale paintbrush 

was first observed from a site in 

Chihuahua, Mexico, in 1887, but not 

discovered in New Mexico until 1993 

(Service 2023, pp. 6–11). The swale 

paintbrush was last observed in Mexico 

in 1985, and in New Mexico in 2021. 

Currently, the species is only known to 

occur at a single site in the Animas 

Valley of Hidalgo County, New Mexico: 

the Gray Ranch site. Additional surveys 

within suitable habitat in the vicinity of 

known sites have not yielded additional 

locations for the species (Roth 2017, p. 

3; Roth 2020, pp. 5, 7; Service 2024b, 

entire). The current status of swale 

paintbrush at the other historical sites is 

unknown. 

Given the species’ overall rarity, little 

is known about the habitat requirements 

for swale paintbrush. Across the 

species’ historical range, swale 

paintbrush has been observed in 

relatively level, seasonally wet 

grassland habitats at elevations ranging 

from approximately 1,500–2,300 meters 

(m) (4,920–7,550 feet (ft)) (Service 2023, 

pp. 6–20). Species within the genus 

Castilleja are root hemiparasites, 

meaning that plant vigor depends on 

exploitation of host plants for carbon, 

nitrogen, and other nutrients (Heckard 

1962, p. 29). Castilleja plants begin to 

establish connections with host plant 

roots (via structures called haustoria) as 

seedlings (Heckard 1962, p. 28). For the 

swale paintbrush, alkali sacaton 

(Sporobolus airoides) and blue grama 

(Bouteloua gracilis) are thought to be the 

primary host plants within the Animas 

Valley populations. 

Swale paintbrush individuals have 

one or a few erect stems that stand 20– 

50 centimeters (cm) (7.9–19.7 inches 

(in)) in height. Plants have oblong leaves 

with strongly wavy leaf margins, and 

floral bracts are typically off-white to 

very pale yellow (New Mexico Rare 

Plant Technical Council (NMRPTC) 

1999, unpaginated), although reddish 

phases of the plant have been observed 

within herbarium records. Across the 

range, aspects of the swale paintbrush’s 

life cycle seem timed to monsoon 

season precipitation patterns. Plants 

germinate between April and June, 

flower between late-May and lateAugust (coincident with monsoonal 

rainfall), and set seed in late August 

through October (NMRPTC 1999, 

unpaginated). The longevity of swale 

paintbrush in the seedbank is unknown; 

however, the longevity of surrogate 

Castilleja species is up to 5 years in 

storage and 2 years in the wild (Service 

2023, pp. 22–24). 

Regulatory and Analytical Framework 

Regulatory Framework 

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

and the implementing regulations in 

title 50 of the Code of Federal 

Regulations set forth the procedures for 

determining whether a species is an 

endangered species or a threatened 

species, issuing protective regulations 

for threatened species, and designating 

critical habitat for endangered and 

threatened species. On April 5, 2024, 

jointly with the National Marine 

Fisheries Service, the Service issued a 

final rule that revised the regulations in 

50 CFR 424 regarding how we add, 

remove, and reclassify endangered and 

threatened species and what criteria we 

apply when designating listed species’ 

critical habitat (89 FR 24300). On the 

same day, the Service published a final 

rule revising our protections for 

endangered species and threatened 

species at 50 CFR 17 (89 FR 23919). 

These final rules are now in effect and 

are incorporated into the current 

regulations. Our analysis for this final 

decision applied our current 

regulations. Given that we proposed 

listing this species under our prior 

regulations (revised in 2019), we have 

also undertaken an analysis of whether 

our decision would be different if we 

had continued to apply the 2019 

regulations; we concluded that the 

decision would be the same. The 

analyses under both the regulations 

currently in effect and the 2019 

regulations are available on https://

www.regulations.gov. 

The Act defines an ‘‘endangered 

species’’ as a species that is in danger 

of extinction throughout all or a 

significant portion of its range, and a 

‘‘threatened species’’ as a species that is 

likely to become an endangered species 

within the foreseeable future throughout 

all or a significant portion of its range. 

The Act requires that we determine 

whether any species is an endangered 

species or a threatened species because 

of any of the following 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. 


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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 

species’ expected response 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 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species. 

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; ‘‘MOpinion,’’ 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’ lifehistory 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. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of the species, 

including an assessment of the potential 

threats to the species. The SSA report 

does not represent our decision on 

whether the species should be listed as 

an endangered or threatened species 

under the Act. However, it does provide 

the scientific basis that informs our 

regulatory decisions, which involve the 

further application of standards within 

the Act and its implementing 

regulations and policies. 

To assess swale paintbrush viability, 

we used the three conservation biology 

principles of resiliency, redundancy, 

and representation (Shaffer and Stein 

2000, pp. 306–310). Briefly, resiliency is 

the ability of the species to withstand 

environmental and demographic 

stochasticity (for example, wet or dry, 

warm or cold years); redundancy is the 

ability of the species to withstand 

catastrophic events (for example, 

droughts, large pollution events); and 

representation is the ability of the 

species to adapt to both near-term and 

long-term changes in its physical and 

biological environment (for example, 

climate conditions, pathogens). In 

general, species viability will increase 

with increases in resiliency, 

redundancy, and representation (Smith 

et al. 2018, p. 306). Using these 

principles, we identified the species’ 

ecological requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA involved making predictions 

about the species’ responses to positive 

and negative environmental and 

anthropogenic influences. Throughout 

all of these stages, we used the best 

available information to characterize 

viability as the ability of a species to 

sustain populations in the wild over 

time, which we then used to inform our 

regulatory decision. 

The following is a summary of the key 

results and conclusions from the SSA 

report; the full SSA report can be found 

at Docket No. FWS–R2–ES–2022–0173 

on https://www.regulations.gov. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the species and 

its resources, and the threats that 

influence the species’ current and future 

condition, in order to assess the species’ 

overall viability and the risks to that 

viability. We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA report, we have analyzed the 

cumulative effects of identified threats 

and conservation actions on the species. 

To assess the current and future 

condition of the species, we evaluate the 

effects of all the relevant factors that 

may be influencing the species, 

including threats and conservation 

efforts. Because the SSA framework 

considers not just the presence of the 

factors, but to what degree they 

collectively influence risk to the entire 

species, our assessment integrates the 

cumulative effects of the factors and 

replaces a standalone cumulative-effects 

analysis. For a full description of our 

analyses, see the swale paintbrush SSA 

report (Service 2023, entire). 

Species Needs 

The individual, population-level, and 

species-level needs of the swale 

paintbrush are summarized in tables 1 

through 3, below. For additional 

information, please see the SSA report 

(Service 2023, chapter 2). 


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TABLE 1—THE ECOLOGICAL REQUISITES FOR SURVIVAL AND REPRODUCTIVE SUCCESS OF SWALE PAINTBRUSH

INDIVIDUALS

Life stage Requirements Description 

Seeds—germination ................. Suitable abiotic conditions • Winter temperatures below 2 degrees Celsius (36 degrees Fahrenheit) for cold stratification. 

• Suitable warmth, light, and soil moisture for germination of seeds; cool season precipitation 

supports germination soil moisture. 

Seedlings and Vegetative 

Plants—establishment and 

growth.

Suitable biotic 

and abiotic 

conditions 

• Adequate monsoonal rainfall June through August, the critical rainfall period for swale paintbrush, for growth and establishment. 

• Proximity of surrounding plants, likely alkali sacaton (Sporobolus airoides) and/or blue 

grama (Bouteloua gracilis), for increased water and nutrient uptake via parasitic haustoria. 

• Lack of herbivory throughout germination, establishment, and growth periods. 

Flowering Plants—reproduction Pollination • Presence of suitable pollinators during the flowering season (June to September). 

• Lack of herbivory through flower production (June to September) and seed set (July to October). 

TABLE 2—POPULATION-LEVEL REQUISITES NECESSARY FOR A HEALTHY POPULATION OF SWALE PAINTBRUSH

Resiliency type Requirements Detail 

Demographic ............................................................................... Population 

growth rate 

(λ) 

• The long-term λ needs to be high enough to rebound from 

periodic population crashes, i.e., on average λ > 1.0. 

Population 

size (N) 

• Sufficiently large N to withstand periodic stochastic events 

and population crashes. 

• The N required may vary geographically across populations. 

Habitat ......................................................................................... Precipitation • Adequate quantity and timing of cool season rainfall to allow 

for germination and establishment. 

• Adequate quantity and timing of monsoonal rainfall during 

the critical rainfall period of swale paintbrush (June through 

August) to allow for germination, establishment, growth, survival, and reproduction. 

Habitat • Presence of host species, likely alkali sacaton, for 

hemiparasitic relationships and increased uptake of water 

and nutrients. 

• Minimal to no nonnative vegetation that outcompetes swale 

paintbrush, its host species, or pollinator forage and host 

plants for soil nutrients, light, and water resources. 

• Absence of persistent chemical contaminants that interfere 

with swale paintbrush’s, host species’, or pollinator species’ 

physiological functionality. 

• Limited levels of herbivory across all life stages. 

• Natural processes, such as hydrological cycles and periodic 

disturbances, that maintain grassland integrity (e.g., natural 

fire return intervals of low intensity; seasonally appropriate 

fires that maintain canopy gaps, enhance grass and forb 

growth, and prevent colonization by woody species). 

Pollination • Presence of suitable pollinator(s). 

• Sufficient soil moisture and nutrients for production of flowers and nectar resources. 

• An abundance and diversity of native flowering plants within 

the habitat to attract pollinators and maintain genetic 

connectivity between swale paintbrush patches. 

TABLE 3—SPECIES-LEVEL ECOLOGY OF SWALE PAINTBRUSH: REQUIREMENTS FOR LONG-TERM VIABILITY

[Ability to maintain self-sustaining populations over a biologically meaningful timeframe] 

3 Rs Species-level requisites Description 

Resiliency ........................................ Self-sustaining populations across 

the species’ range.

Self-sustaining populations are demographically, genetically, and 

physiologically robust; have sufficient quantity of high-quality habitat; and are free of, or have manageable, threats. 

Redundancy .................................... Sufficient distribution of populations to spread risk.Sufficient distribution to guard against catastrophic events wiping out 

portions of the species’ adaptive diversity and the species as a 

whole (i.e., to reduce covariance among populations); populations 

spread out geographically but also ecologically (different ecological 

settings). 

Representation ................................ Maintain adaptive diversity of the 

species.

Populations maintained across spatial and environmental gradients to 

maintain ecological and genetic diversity. 


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TABLE 3—SPECIES-LEVEL ECOLOGY OF SWALE PAINTBRUSH: REQUIREMENTS FOR LONG-TERM VIABILITY—Continued 

[Ability to maintain self-sustaining populations over a biologically meaningful timeframe] 

3 Rs Species-level requisites Description 

Maintain evolutionary processes ... Maintain evolutionary drivers (gene flow, natural selection, genetic 

drift) to mimic historical patterns. 

Risk Factors for the Swale Paintbrush 

The primary factors influencing swale 

paintbrush viability are habitat loss and 

fragmentation, hydrological alteration, 

altered fire regimes, effects from 

intensive grazing pressure, exotic plant 

invasion, climate change impacts (i.e., 

drought and increased cool season 

temperatures), and the cumulative 

effects of multiple stressors. 

Additionally, future collection risk may 

have compounding impacts on the 

species’ viability. The majority of 

information pertaining to these threats 

is based on the New Mexico portion of 

the species’ range; however, based on 

visual inspections of aerial imagery and 

the limited information we have on the 

historical sites, we estimate that these 

are rangewide threats to this species. 

These stressors and their effects to the 

swale paintbrush are summarized 

below. 

Habitat Loss and Fragmentation 

Habitat loss (Factor A) results in 

mortality of active plants, within-site 

seedbank loss, reduction in available 

habitat, overall decline in occupied area 

and abundance, increased edge effects, 

and decreased genetic exchange 

(Oostermeijer 2003, p. 3 and references 

therein). Edge effects include reduced 

wildlife use of and travel through 

habitat (and the associated decrease in 

genetic exchange through decreased 

rates of pollinator visitation and/or seed 

dispersal), reduced infiltration of 

precipitation, altered surface and 

subsurface hydrology, increased human 

activities, and exotic plant invasion 

(Forman and Alexander 1998, pp. 210, 

223; Bhattacharya et al. 2003, p. 37; 

Raiter et al. 2018, pp. 445–446; Sawyer 

et al. 2020, p. 934). The combined 

effects of habitat loss and edge effects 

can lead to fragmented and small 

populations that have reduced genetic 

exchange, which leads to reduced 

reproductive potential and adaptive 

capacity (Oostermeijer 2003, p. 1 and 

reference therein). Major sources of 

habitat loss and fragmentation within 

the swale paintbrush’s range include 

land conversion to agriculture and 

development associated with human 

habitation and transportation. 

Hydrological Alteration 

The swale paintbrush relies on cool 

season precipitation, monsoon 

precipitation, and a suitable surface/ 

subsurface hydrology to complete its life 

cycle and maintain its seedbank. Thus, 

this species is sensitive to hydrological 

alterations (Factor A), such as artificial 

drought and emergence season 

inundation. Artificial drought occurs 

when upslope obstacles to, or diversions 

of, surface flows starve downslope areas 

that would have otherwise received 

those flows (Raiter et al. 2018, pp. 445– 

446; Roth 2020, p. 5; Nichols and 

Degginger 2021, entire). One report 

suggests that disturbance altered local 

hydrology in the Gray Ranch area, 

starving previously occupied patches of 

habitat and rendering them unsuitable 

for the species (Roth 2020, p. 5). 

Alternately, downslope obstacles to 

surface flows may permanently or 

seasonally flood upslope areas that 

would have otherwise shed flows to 

downslope areas. Prolonged inundation 

causes forb mortality, reducing forb 

cover and increasing graminoid (grasslike) cover and height (Insausti et al. 

1999, pp. 267, 269–271). If inundation 

interrupts the species’ annual life cycle, 

existing seedbanks may become 

depleted and/or seedbank 

replenishment may be thwarted, 

depending on the timing, intensity, and/ 

or duration of flooding (Insausti et al. 

1999, p. 272). 

Altered Fire Regime 

Fire intensity, frequency, and 

seasonality (Factor A) have direct and 

indirect influences on swale paintbrush. 

Swale paintbrush relies heavily on 

canopy gaps and mineralized soil 

nutrient inputs for establishment and 

growth. Fire fosters these conditions 

and also reduces the cover of woody 

vegetation. It stimulates the growth of 

other grasses, including blue grama 

(which is one of swale paintbrush’s host 

plants), and forbs (which support 

pollinators and, hence, swale 

paintbrush pollination) (Johnson 2000, 

unpaginated; Anderson 2003, 

unpaginated; Lybbert et al. 2017, p. 

1030; Sam 2020, p. 69; Bestelmeyer et 

al. 2021, p. 181). 

Prehistoric fire return intervals in 

Madrean ecosystems range from 2.5–10 

years. Grasslands, a key ecosystem for 

the swale paintbrush, are more likely to 

convert to shrublands or woodlands 

when fire return intervals exceed 10 

years. Fire management regimes and 

grazing intensity (described below) 

affect fire frequency, and these habitats 

are sensitive to fire suppression and 

herbivore removal of fine fuels, which 

decrease fire frequency and may lead to 

increased intensity of fires when they 

do occur (Kaib et al. 1996, pp. 253, 260; 

Swetnam and Baisan 1996, pp. 23, 25; 

Brown and Archer 1999, pp. 2393–2394; 

Poulos et al. 2013, pp. 3–4, 8; 

NatureServe 2021, unpaginated). 

Excessive fire frequency, though less 

likely to occur, may also have 

detrimental impacts on swale 

paintbrush populations. For example, 

alkali sacaton’s post-fire recovery time 

is 2–4 years, and high fire frequency can 

lower pollinator abundance and 

diversity (Johnson 2000, unpaginated; 

Carbone et al. 2019, p. 7). In turn, 

decreased pollinator abundance and 

diversity results in decreased 

pollination rates of swale paintbrush, 

which then leads to decreased 

reproduction and seedbank 

replenishment. 

Uncharacteristic fire seasonality is 

likely to adversely affect swale 

paintbrush. While a spring fire season is 

characteristic of the Sierra Madre 

Occidental and adjacent Madrean 

ecosystems, a summer fire season is 

characteristic of the rest of the desert 

Southwest (Swetnam et al. 2001, pp. 5, 

8; Poulos et al. 2013, p. 8). Current 

natural ignitions for the historical Gray 

Ranch area are reported to rarely start 

before the middle of April or after the 

middle of July (Brown 1998, p. 250). 

However, fire prescriptions for the 

Animas Valley area are timed to avoid 

the breeding seasons of several wildlife 

species, potentially pushing 

prescription burns into mid-August, the 

swale paintbrush’s reproductive season 

(Malpai Borderlands Group (MBG) 2008, 

pp. 63–116). If fire interrupts the 

species’ annual life cycle, existing 

seedbanks may become depleted and/or 

seedbank replenishment may be 

thwarted. 


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Effects of Intensive Grazing 

The swale paintbrush occurs in 

grasslands that are used for grazing. 

Cool season grazing and/or other natural 

processes help to create the canopy gaps 

that this species needs for establishment 

(see Species Needs, above). Exclusion of 

grazing promotes canopy gap closure, 

especially under circumstances of 

reduced fire frequency, which results in 

reduced habitat suitability for the swale 

paintbrush’s germination, 

establishment, and growth (Service 

2023, pp. 22, 28, 51). However, 

excessive grazing pressure that results 

in significant canopy loss (Factor A) 

increases the potential for evaporation, 

erosion, and nutrient loss (Li et al. 2007, 

pp. 318, 329–331). These effects can 

reduce swale paintbrush productivity 

both directly and indirectly through 

impacts on the productivity of 

symbiotic and host species (Pimentel 

and Kounang 1998, pp. 419–421). 

Palatability of species in the genus 

Castilleja is considered poor for horses, 

poor to fair for cattle, and fair to good 

for sheep (New Mexico State University 

n.d., unpaginated). However, the swale 

paintbrush’s slender stem morphology 

and erect growth habitat make them 

vulnerable to trampling by livestock 

when habitats are grazed during the 

plant’s growing season. If grazing or 

trampling interrupt the species’ annual 

life cycle, existing seedbanks may 

become depleted and/or seedbank 

replenishment may be thwarted, 

depending on the timing, intensity, and/ 

or duration of the grazing. Winter– 

spring grazing is least likely to affect the 

swale paintbrush’s survival and 

reproduction directly. Excessive 

herbivory during winter–spring could 

result in shifting the fire season further 

into the growing season, which could 

have negative impacts on seedbank 

replenishment and viability. 

Exotic Plant Invasion 

Exotic plants (Factor A) can become 

introduced to, and dispersed within, 

grassland habitats by the travel of both 

humans and animals. Invasive exotic 

plants could reduce the availability of 

canopy gaps and/or outcompete the 

swale paintbrush for available gaps, soil 

moisture, and soil nutrients, potentially 

both depleting the existing seedbank 

and reducing seedbank replenishment. 

Co-occurring noxious plant species also 

increase the risks of herbicide exposure. 

For a list of documented introduced 

species within the Gray Ranch area, see 

the SSA report (Service 2023, pp. 29– 

30). Introduced species in the vicinity of 

historical swale paintbrush sites in 

Mexico are unknown. 

Climate Change Impacts 

Climate change (Factor E) has the 

potential to affect all of the following 

factors: drought (and associated 

increases in grazing pressure), flood, 

fire, and vulnerability to exotic plant 

invasion. The New Mexico sites are 

classified as an Apacherian-Chihuahuan 

Semi-Desert Grassland and Steppe 

ecological system within the U.S. 

Environmental Protection Agency (EPA) 

level 3 Madrean Archipelago ecoregion 

and the EPA level 4 Madrean Basin 

Grasslands ecoregion. This system is 

highly vulnerable to future climate 

changes. The remaining historical 

collection sites in Mexico are in 

Chihuahuan Semi-Desert Grassland and 

Steppe ecological systems within Sierra 

Madre Occidental ecoregions, which are 

moderately vulnerable to future climate 

changes. 

Projections for the Cloverdale 

hydrologic unit code (HUC) 08 

watershed predict increasing 

temperatures and less available soil 

moisture, which would be akin to 

prolonged drought. The elevated 

temperatures and increased aridity 

projected across the swale paintbrush’s 

historical range render these systems 

vulnerable to conversion to shrubsteppe (Caracciolo et al. 2016, pp. 2–3; 

NatureServe 2021, unpaginated). These 

changes are likely to impact swale 

paintbrush populations at the northernand southern-most extents of this 

species’ range, including the verified 

extant population in New Mexico. 

Increased growing season aridity may 

stress the germination, establishment, 

growth, and reproduction of swale 

paintbrush plants, and increased winter 

temperatures may reduce swale 

paintbrush’s capacity to overcome seed 

dormancy before seeds in the soil 

seedbank become nonviable. The 

combined effects of increased soil 

seedbank loss and reduced seedbank 

replenishment lead to smaller 

population sizes, and, thus, the species 

would be more susceptible to 

environmental and demographic 

stochasticity. 

Collection Risk 

A future threat to the species is the 

emerging risk of collection (Factor B). 

Although no illegal collection events of 

swale paintbrush have been 

documented, other species within the 

genus Castilleja are horticulturally 

desirable. Many Castilleja species are 

readily available via online companies, 

and yellow-bracted species, 

aesthetically similar to the swale 

paintbrush, are marketed as rare. 

Currently, due to the species’ rarity 

and limited distribution and risks of 

illegal collection to rare species, swale 

paintbrush locality data below the 

county level are not publicly available 

through online databases (e.g., SEINet, 

Natural Heritage New Mexico, New 

Mexico Rare Plants website). If the 

location of known occupied habitat 

became publicly available, risk of illegal 

collection could increase. 

There is a history of illegal collection 

occurring for other species at or within 

the near vicinity of the Gray Ranch site. 

These collection efforts targeted the 

Sonoran Desert toad (Incilius (=Bufo) 

alvarius; New Mexico Department of 

Game and Fish 2020, pp. 78–79), New 

Mexico ridge-nosed rattlesnake 

(Crotalus willardi obscurus; Harris Jr. 

and Simmons 1975, p. 6; Malpai 

Borderlands Group 2008, p. 60), and 

Mexican hog-nosed snake (Heterodon 

kennerlyi; Medina 2021, pers. comm.). 

For the New Mexico ridge-nosed 

rattlesnake specifically, collection over 

the period of 1961–1974 may have 

resulted in the loss of 130 individuals 

from the population (Service 2008, p. 

37), and researchers encountered 15 

illegal collectors from six States during 

a single season (Harris Jr. and Simmons 

1975, p. 6). The swale paintbrush is 

easier to detect and collect than these 

mobile, camouflaged species. Thus, 

given the desirability of paintbrush 

species for horticultural use, the 

increased desirability of rare species, 

the inability of this species to evade 

detection and collection, and the history 

of illegal collection in the vicinity of the 

Gray Ranch, illegal collection is a 

potential future emerging threat for this 

species, especially if the location of 

known occupied habitat becomes 

publicly available. Further, given the 

small known extant range and 

population size of the swale paintbrush, 

its annual duration and reliance on 

frequent seedbank replenishment, and 

risks to its seedbank from stochastic 

events and other ongoing threats to the 

species, effects from collection (removal 

of plants and damage to habitat) would 

be deleterious and potentially 

catastrophic to the swale paintbrush. 

Cumulative Effects 

In summary, swale paintbrush is 

likely adapted to withstand stochastic 

stressor events individually and 

intermittently. However, the increased 

intensity of, the increased frequency of, 

the co-occurrence or consecutive 

occurrence of, and the synergistic effects 

between stochastic stressor events 

increase the risks to this species. Given 

the swale paintbrush’s annual duration, 

reliance on frequent seedbank 


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replenishment, and low seed longevity, 

as few as 2 consecutive years of adverse 

environmental conditions or humancaused or natural adverse stochastic 

events could have catastrophic 

consequences for this species. 

Current Condition 

The swale paintbrush was historically 

documented from 13 sites in the United 

States and Mexico: 2 sites in the Animas 

Valley of Hidalgo County, New Mexico, 

and 11 sites in the eastern Sierra Madre 

Occidental of Chihuahua and northern 

Durango in Mexico. Currently, only one 

known occupied site—the Gray Ranch 

site—exists within the Animas Valley of 

Hidalgo County, New Mexico, and the 

species was last observed at this site in 

2021. The last observations of historical 

sites were in 1993 in New Mexico, and 

in 1985 in Mexico. 

We assessed the swale paintbrush’s 

current condition using a two-pronged 

approach. First, for all known occupied 

and historically collected swale 

paintbrush sites, we derived the amount 

and intensity of disturbed area and 

currently protected areas within the 

vicinity of each site using aerial imagery 

from the period of 2000 to 2020. Then, 

we used these data to estimate the 

possibility of swale paintbrush 

occupancy within the vicinity of the 

historical location and assigned each 

site into one of four categories: (1) 

known extant, (2) possibly extant, (3) 

possibly extirpated, and (4) presumed 

extirpated. Known extant means that the 

population has been observed within 

the last decade. Possibly extant means 

that the site is only known from 

herbarium records but has a reasonable 

potential for rediscovery; evidence of 

habitat loss or degradation is not 

substantial enough to presume complete 

loss of swale paintbrush habitat since 

the time of collection. Possibly 

extirpated means that the population is 

known only from herbarium records and 

has a low potential for rediscovery; 

evidence of habitat loss or degradation 

is substantial enough that loss of the 

species at the site is possible. Presumed 

extirpated means that the population is 

only known from herbarium records and 

has a very low potential for rediscovery; 

evidence of habitat loss or alteration is 

significant enough to presume complete 

loss of suitable habitat since the time of 

collection. 

Second, we conducted a more 

detailed assessment of the resiliency for 

the known occupied site at the Gray 

Ranch in the Animas Valley. Briefly, we 

considered the demographic factors 

(population abundance, occupied area, 

and count of patches within the last 2 

years) and habitat factors (surface 

disturbance, herbicide exposure, fire 

regime, grazing regime, inundation 

seasonality, growing season canopy 

cover, and precipitation history). We 

assigned each factor into three condition 

categories; (1) high (factor values that 

are compatible with stable to increasing 

populations); (2) moderate (factor values 

that contribute to minimal rates of 

decline), or (3) low (factor values that 

contribute to high rates of decline). Our 

methodology and evaluations of 

viability are described in more detail in 

the swale paintbrush SSA report 

(Service 2023, chapter 4). 

Based on our assessment of the swale 

paintbrush’s current conditions across 

all sites, one site (the Gray Ranch site) 

is known extant, four sites ranked as 

possibly extant, six sites ranked as 

possibly extirpated, and two sites 

ranked as presumed extirpated. Of the 

four possibly extant sites, swale 

paintbrush plants were last observed at 

the sites in 1899, 1903, 1979, and 1993. 

Although potentially suitable habitat 

may remain at some of the historical 

sites, particularly the four possibly 

extant sites, the size and abundance 

(i.e., resiliency) of the historical sites are 

unknown, and we cannot reasonably 

assume anything about the status of the 

species at these sites. Thus, the swale 

paintbrush has no verifiable redundancy 

and very limited representation 

throughout its known range. 

Based on our detailed assessment of 

current condition, the swale paintbrush 

has moderate to high resiliency at the 

Gray Ranch site. The most recent survey 

in September 2021 documented a 

minimum abundance of 6,000 plants— 

higher than our range of provisional 

minimum viable population sizes 

(1,500–5,000 plants)—distributed across 

2 patches and 11 hectares (28 acres) of 

habitat in the Animas Valley. Generally, 

the site has moderate amounts of surface 

disturbance that would have limited 

influence on pollinator visitation rates. 

There has been no recent herbicide 

exposure within 300 meters (984 feet) of 

swale paintbrush patches within the last 

15 years. Grazing during the species’ 

active season within recent years has 

been avoided, and the disturbance 

regime (fire return intervals, inundation 

seasonality, grazing regime) combined 

with the recent precipitation history, 

have maintained favorable canopy cover 

that allows for the swale paintbrush’s 

growth, establishment, and recent 

seedbank replenishment within the core 

of the population area. 

Although the Gray Ranch site is 

considered to have moderate to high 

resiliency currently, the small area that 

the species is known to occupy 

increases its risk of extirpation due to 

catastrophic events. The swale 

paintbrush is at risk of impacts from the 

cumulative impacts of multiple stressors 

because it is an annual species with a 

provisional seedbank viability of 2 years 

in the wild and frequent replenishment 

of the seedbank is essential to 

population persistence. Replenishment 

of the seedbank with viable seeds 

requires flower production, successful 

pollination, and ovule maturation, all of 

which are impacted by stochastic and 

catastrophic events such as: habitat loss 

and fragmentation (Factor A), 

hydrological alteration (Factor A), 

altered fire regimes (Factor A), effects 

from intensive grazing pressure (Factor 

A), exotic plant invasion (Factor A), 

climate change impacts (i.e., drought 

and increased cool season temperatures; 

Factor E), and the cumulative effects of 

multiple stressors. Additionally, future 

collection risk (Factor B) may have 

compounding impacts on the species’ 

viability. 

Drought is the primary threat to the 

species, as increased frequency, 

intensity, and/or duration of drought 

can lead to decreased swale paintbrush 

survival through direct (e.g., drought 

stress, trampling, or herbivory) and 

indirect (e.g., increased grazing pressure 

within the habitat, increased fire risk, 

delayed post-fire recovery) mortality. 

Although grazing and fires help 

maintain canopy gaps, grazing and/or 

fires during the growing season can 

result in decreased swale paintbrush 

survival. Currently, grazing during the 

growing season is generally avoided at 

the Gray Ranch site; however, this site 

is used as a grass-banking pasture and 

may experience increased grazing 

pressure during times of drought. 

Grazing during the active season can 

result in trampling and mortality of the 

species. Fires during the growing season 

result in swale paintbrush mortality 

and, depending on the duration and 

intensity of the fire, prolonged recovery 

times for native vegetation. Decreased 

recovery times leave soils vulnerable to 

evaporation, erosion, nutrient loss, and 

invasive species establishment, all of 

which lead to decreased swale 

paintbrush survival. 

Taken altogether, the swale 

paintbrush has moderate to high 

resiliency within 1 population and 

unknown resiliency across the other 12 

historical sites. Although our analysis 

reflects our best assessment of the 

current conditions of disturbance at or 

in the vicinity of our estimates of 

historical site locations, the status of 

historically collected sites at Cowan 

Ranch of the Animas Valley and in the 

eastern Sierra Madre Occidental of 

Mexico is unknown. Rangewide, 


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specimens were collected from 1887– 

2021, with the most recent record from 

Mexico being collected in 1985. 

Additionally, outside of the known 

extant New Mexico site (the Gray Ranch 

site), there have been no reported 

estimates of abundance with the 

exception of qualitative reports of 

‘‘occasional’’ for the distribution at the 

Keil 13388 site and ‘‘few plants’’ for 

Palmer 320 (Palmer 1906, unpaginated; 

Keil 1978, unpaginated; Service 2023, p. 

19). Thus, we cannot reasonably 

conclude anything about the health or 

resiliency of any site except for the Gray 

Ranch site. Accordingly, the swale 

paintbrush has limited to no 

redundancy, depending on the status of 

the species at the historical sites. Even 

if the swale paintbrush remains extant 

at sites outside of Gray Ranch, the 

majority of sites are isolated, and there 

is limited potential for interpopulation 

rescue in the event of local extirpations. 

Finally, the swale paintbrush has 

limited representation. The Gray Ranch 

site exists at the northern periphery of 

the species’ range and reflects only a 

small portion of the historical genetic 

and ecological diversity of the species. 

Future Condition 

As part of the SSA, we also developed 

future condition scenarios to capture the 

range of uncertainties regarding future 

threats and the projected responses by 

the swale paintbrush. Our future 

condition assessments considered the 

projected impacts of increased habitat 

disturbance and climate changes across 

the swale paintbrush’s historical range. 

Specifically, we considered the upper 

and lower bounds of plausible impacts 

of environmental variables related to 

aridity during the growing and 

reproductive seasons and seed chilling 

and cold stratification during the cool 

season. Because we determined that the 

current condition of the swale 

paintbrush is consistent with an 

endangered species (see Determination 

of Swale Paintbrush’s Status, below), we 

are not presenting the results of the 

future scenarios in this rule. Please refer 

to the SSA report (Service 2023, chapter 

5) for the full analysis of future 

scenarios. 

Conservation Efforts and Regulatory 

Mechanisms 

Below is a brief description of 

conservation measures and regulatory 

mechanisms currently in place. Please 

see the SSA report for a more detailed 

description (Service 2023, chapter 3). 

The swale paintbrush is listed as an 

endangered species by the State of New 

Mexico. In New Mexico, the swale 

paintbrush exists on lands managed for 

livestock production in an ecologically 

responsible manner by the Animas 

Foundation (Brown 1998, p. 248). The 

Nature Conservancy (TNC), the former 

landowners of the Gray Ranch site, 

retains a conservation easement 

prohibiting development on the lands 

formerly known as the Gray Ranch (TNC 

2022, unpaginated). While the easement 

does not ensure that range 

improvements will avoid adverse effects 

to the swale paintbrush, it ensures that 

the covered areas will remain open 

space. 

The Animas Foundation is a member 

of the Malpai Borderlands Group, a 

private, nonprofit organization that is 

dedicated to maintaining or increasing 

rangeland health and the viability of 

traditional livelihoods that maintain 

rangelands as open space (Malpai 

Borderlands Group 1994, p. 2; Brown 

1998, p. 249; Malpai Borderlands Group 

2008, pp. 1–2). Malpai Borderlands 

Group activities related to use, 

maintenance, and enhancement of 

rangelands fall within the scope of a 

habitat conservation plan (HCP) for all 

privately owned and State-trust 

rangelands in the Malpai Borderlands of 

Southern Arizona and New Mexico. 

Although the swale paintbrush is not a 

covered species under this plan, the 

species may benefit from the plan’s 

covered activities and associated 

conservation measures (Service 2023, 

pp. 35–36, table 3–1). These covered 

activities and associated conservation 

measures have the potential to maintain 

and enhance swale paintbrush habitat 

by restoring fire, minimizing erosion, 

and controlling invasive and exotic 

plant species. The Animas Foundation’s 

participation in the HCP, beyond the 

grassbanking program, is unknown. 

Finally, we have partnered with the 

Animas Foundation, the State of New 

Mexico, and Albuquerque Bio Park to 

conduct and maintain ex situ seed 

collections of the swale paintbrush from 

the Gray Ranch site. Currently, 77 

maternal lines have been collected and 

retained in offsite storage institutions 

for germination studies, grow out, seed 

increase, and potential reintroduction 

efforts. 

Determination of Swale Paintbrush’s 

Status 

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

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an endangered species 

or a threatened species. The Act defines 

an ‘‘endangered species’’ as a species in 

danger of extinction throughout all or a 

significant portion of its range, and a 

‘‘threatened species’’ as a species likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range. The 

Act requires that we determine whether 

a species meets the definition of 

endangered species or threatened 

species because of any of the following 

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. 

Status Throughout All of Its Range 

After evaluating threats to the species 

and assessing the cumulative effect of 

the threats under the Act’s section 

4(a)(1) factors, we found that the swale 

paintbrush’s distribution has declined 

from historical conditions. The swale 

paintbrush was documented from 13 

sites historically: 2 sites in the Animas 

Valley of Hidalgo County, New Mexico, 

and 11 sites in the eastern Sierra Madre 

Occidental of Chihuahua and northern 

Durango in Mexico. Of the 13 historical 

sites, only 1 site—the Gray Ranch site 

within the Animas Valley of Hidalgo 

County, New Mexico—is currently 

known to be extant. Swale paintbrush 

plants were last observed at the Gray 

Ranch site in September of 2021, with 

a minimum abundance of 6,000 plants 

distributed across 11 hectares (28 acres) 

of habitat. Of the 12 other historical 

sites, our analyses found that four sites 

ranked as ‘‘possibly extant,’’ six sites 

ranked as ‘‘possibly extirpated,’’ and 

two sites ranked as ‘‘presumed 

extirpated.’’ Although potentially 

suitable habitat may remain at some of 

the historical sites, the size and 

abundance (i.e., resiliency) of the 

historical sites is unknown, and we do 

not have information that these sites are 

resilient, stable, or able to contribute to 

the viability of the species. 

Although the Gray Ranch site is 

considered to have moderate to high 

resiliency currently—based on the most 

recent abundance estimate exceeding 

the minimum viable population size 

and habitat conditions of the Animas 

Valley being generally favorable—the 

small area that the species is known to 

occupy increases its risk of extirpation 

due to catastrophic events. The swale 

paintbrush is at risk from the 

cumulative impacts of multiple stressors 

because it is an annual species with a 

provisional seedbank viability of 2 years 

and frequent replenishment of the 

seedbank is essential to population 

persistence. Replenishing the seedbank 


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with viable seeds requires flower 

production, successful pollination, and 

ovule maturation, all of which are 

impacted by stochastic and catastrophic 

events such as habitat loss and 

fragmentation (Factor A), hydrological 

alteration (Factor A), altered fire regimes 

(Factor A), effects from intensive grazing 

pressure (Factor A), exotic plant 

invasion (Factor A), climate change 

impacts (i.e., drought and increased cool 

season temperatures; Factor E), and the 

cumulative effects of multiple stressors. 

Additionally, future collection risk 

(Factor B) may have compounding 

impacts on the species’ viability. 

Drought is the primary threat to the 

species, as increased frequency, 

intensity, and/or duration of drought 

can lead to decreased swale paintbrush 

survival through direct and indirect 

mortality. Although grazing and fires 

can help maintain canopy gaps, grazing 

and/or fires during the growing season 

can result in decreased swale 

paintbrush survival. Currently, grazing 

during the growing season is avoided at 

the Gray Ranch site; however, this site 

is used as a grass-banking pasture and 

may experience increased grazing 

pressure during times of drought. 

Grazing during the active season can 

result in trampling and mortality of the 

species. Fires during the growing season 

result in swale paintbrush mortality 

and, depending on the duration and 

intensity of the fire, prolonged recovery 

times for native vegetation. Decreased 

recovery times leave soils vulnerable to 

evaporation, erosion, nutrient loss, and 

invasive species establishment, all of 

which lead to decreased swale 

paintbrush survival. Thus, decreased 

swale paintbrush survival results in 

decreased seedbank replenishment and, 

by extension, decreased seedbank 

viability, which increases the species’ 

risk of extinction. 

Overall, the swale paintbrush has 

limited viability due to its limited 

resiliency, lack of redundancy, and 

limited representation at the species 

level. The species currently occurs at a 

single site at the northern periphery of 

its known historical range and is 

vulnerable to the impacts of 

catastrophic events. Given its limited 

distribution, the species likely reflects 

only a small portion of its historical 

genetic and ecological diversity; thus, 

the swale paintbrush has limited 

capacity to adapt to long-term 

environmental changes (i.e., limited 

representation). Even if the swale 

paintbrush is extant at sites outside of 

the Gray Ranch, the majority of these 

potentially extant historical sites are 

isolated, and, therefore, there is limited 

potential for interpopulation rescue in 

the event of local extirpations. 

Accordingly, we find that the swale 

paintbrush is presently in danger of 

extinction throughout all of its range 

based on small population size and the 

species’ risk from a number of 

contemporary threats. The risk of 

extinction is high due to a small 

population with no known potential for 

recolonization from nearby sources (no 

redundancy) and the species having 

limited viability within the seedbank. 

We do not find that a threatened status 

is warranted for the swale paintbrush 

because the species occupies a small 

geographic range that is currently 

vulnerable to stressors with the 

potential for catastrophic synergistic 

consequences. Thus, the species’ 

limited resiliency, lack of redundancy, 

and limited representation currently 

place the species in danger of 

extinction, and these contemporary 

threats are only projected to increase in 

frequency, severity, extent, and/or 

duration into the future. 

Thus, after assessing the best available 

information, we determine that the 

swale paintbrush is in danger of 

extinction throughout all of its range. 

Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so within the 

foreseeable future throughout all or a 

significant portion of its range. We have 

determined that the swale paintbrush is 

in danger of extinction throughout all of 

its range and accordingly did not 

undertake an analysis of any significant 

portions of its range. Because the swale 

paintbrush warrants listing as 

endangered throughout all of its range, 

our determination does not conflict with 

the decision in Center for Biological 

Diversity v. Everson, 435 F. Supp. 3d 69 

(D.D.C. 2020), because that decision 

related to significant portion of the 

range analyses for species that warrant 

listing as threatened, not endangered, 

throughout all of their range. 

Determination of Status 

Our review of the best available 

scientific and commercial information 

indicates that the swale paintbrush 

meets the Act’s definition of an 

endangered species. Therefore, we are 

listing the swale paintbrush as an 

endangered species in accordance with 

sections 3(6) and 4(a)(1) of the Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition as a listed species, 

planning and implementation of 

recovery actions, requirements for 

Federal protection, and prohibitions 

against certain practices. Recognition 

through listing results in public 

awareness, and conservation by Federal, 

State, Tribal, and local agencies, private 

organizations, and individuals. The Act 

encourages cooperation with the States 

and other countries and calls for 

recovery actions to be carried out for 

listed species. The protection required 

by Federal agencies, including the 

Service, and the prohibitions against 

certain activities are discussed, in part, 

below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Section 4(f) of the 

Act calls for the Service to develop and 

implement recovery plans for the 

conservation of endangered and 

threatened species. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

The recovery planning process begins 

with development of a recovery outline 

made available to the public soon after 

a final listing determination. The 

recovery outline guides the immediate 

implementation of urgent recovery 

actions while a recovery plan is being 

developed. Recovery teams (composed 

of species experts, Federal and State 

agencies, nongovernmental 

organizations, and stakeholders) may be 

established to develop and implement 

recovery plans. The recovery planning 

process involves the identification of 

actions that are necessary to halt and 

reverse the species’ decline by 

addressing the threats to its survival and 

recovery. The recovery plan identifies 

recovery criteria for review of when a 

species may be ready for reclassification 

from endangered to threatened 

(‘‘downlisting’’) or removal from 

protected status (‘‘delisting’’), and 

methods for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. Revisions of the plan 

may be done to address continuing or 

new threats to the species, as new 

substantive information becomes 

available. The recovery outline, draft 

recovery plan, final recovery plan, and 

any revisions will be available on our 


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website as they are completed (https:// 

www.fws.gov/program/endangeredspecies), or from our New Mexico 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, States, Tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their ranges may occur 

primarily or solely on non-Federal 

lands. To achieve recovery of these 

species requires cooperative 

conservation efforts on private, State, 

and Tribal lands. 

When this rule is effective (see DATES, 

above), funding for recovery actions will 

be available from a variety of sources, 

including Federal budgets, State 

programs, and cost-share grants for nonFederal landowners, the academic 

community, and nongovernmental 

organizations. In addition, pursuant to 

section 6 of the Act, the State of New 

Mexico will be eligible for Federal funds 

to implement management actions that 

promote the protection or recovery of 

the swale paintbrush. Information on 

our grant programs that are available to 

aid species recovery can be found at: 

https://www.fws.gov/service/financialassistance. 

Please let us know if you are 

interested in participating in recovery 

efforts for the swale paintbrush. 

Additionally, we invite you to submit 

any new information on this species 

whenever it becomes available and any 

information you may have for recovery 

planning purposes (see FOR FURTHER

INFORMATION CONTACT). 

Section 7 of the Act is titled, 

‘‘Interagency Cooperation,’’ and it 

mandates all Federal action agencies to 

use their existing authorities to further 

the conservation purposes of the Act 

and to ensure that their actions are not 

likely to jeopardize the continued 

existence of listed species or adversely 

modify critical habitat. Regulations 

implementing section 7 are codified at 

50 CFR part 402. 

Section 7(a)(2) states that each Federal 

action agency shall, in consultation with 

the Secretary, ensure that any action 

they authorize, fund, or carry out is not 

likely to jeopardize the continued 

existence of a listed species or result in 

the destruction or adverse modification 

of designated critical habitat. Each 

Federal agency shall review its action at 

the earliest possible time to determine 

whether it may affect listed species or 

critical habitat. If a determination is 

made that the action may affect listed 

species or critical habitat, formal 

consultation is required (50 CFR 

402.14(a)), unless the Service concurs in 

writing that the action is not likely to 

adversely affect listed species or critical 

habitat. At the end of a formal 

consultation, the Service issues a 

biological opinion, containing its 

determination of whether the Federal 

action is likely to result in jeopardy or 

adverse modification. 

Examples of discretionary actions for 

the swale paintbrush that may be 

subject to consultation procedures 

under section 7 are land management or 

other landscape-altering activities on 

Federal lands administered by the 

Bureau of Land Management and the 

U.S. Forest Service, as well as actions 

on State, Tribal, local, or private lands 

that require a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act (33 U.S.C. 1251 et seq.) 

or a permit from the Service under 

section 10 of the Act) or that involve 

some other Federal action (such as 

funding from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency). 

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 carried out by a Federal 

agency—do not require section 7 

consultation. Federal agencies should 

coordinate with the local Service Field 

Office (see FOR FURTHER INFORMATION

CONTACT) with any specific questions on 

section 7 consultation and conference 

requirements. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to endangered plants. The prohibitions 

of section 9(a)(2) of the Act, and the 

Service’s implementing regulations 

codified at 50 CFR 17.61, make it illegal 

for any person subject to the jurisdiction 

of the United States to commit, to 

attempt to commit, to solicit another to 

commit, or to cause to be committed any 

of the following acts with regard to any 

endangered plant: (1) import into, or 

export from, the United States; (2) 

remove and reduce to possession from 

areas under Federal jurisdiction; 

maliciously damage or destroy on any 

such area; or remove, cut, dig up, or 

damage or destroy on any other area in 

knowing violation of any law or 

regulation of any State or in the course 

of any violation of a State criminal 

trespass law; (3) deliver, receive, carry, 

transport, or ship in interstate or foreign 

commerce, by any means whatsoever 

and in the course of a commercial 

activity; or (4) sell or offer for sale in 

interstate or foreign commerce. Certain 

exceptions to these prohibitions apply 

to employees or agents of the Service, 

other Federal land management 

agencies, and State conservation 

agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered plants under 

certain circumstances. Service 

regulations governing permits for 

endangered plants are codified at 50 

CFR 17.62, and general Service 

permitting regulations are codified at 50 

CFR part 13. With regard to endangered 

plants, a permit may be issued for 

scientific purposes or for enhancing the 

propagation or survival of the species. 

The statute also contains certain 

exemptions from the prohibitions, 

which are found in sections 9 and 10 of 

the Act. 

It is the policy of the Services, as 

published in the Federal Register on 

July 1, 1994 (59 FR 34272), to identify, 

to the extent known at the time a 

species is listed, specific activities that 

will not be considered likely to result in 

violation of section 9 of the Act. To the 

extent possible, activities that will be 

considered likely to result in violation 

of section 9 of the Act will also be 

identified in as specific a manner as 

possible. The intent of this policy is to 

increase public awareness of the effect 

of a listing on proposed and ongoing 

activities within the range of the 

species. 

As mentioned above, certain activities 

that are prohibited under section 9 may 

be permitted under section 10 of the 

Act. In addition, to the extent currently 

known, the following activities will not 

be considered likely to result in 

violation of section 9 of the Act: 

(1) Normal residential landscaping 

activities on non-Federal lands that do 

not occur within known swale 

paintbrush habitat; and 

(2) Cool season livestock grazing 

(November to April) that is conducted 

in a manner that does not result in 

degradation of swale paintbrush habitat. 

This list is intended to be illustrative 

and not exhaustive; additional activities 

that will not be considered likely to 

result in violation of section 9 of the Act 

may be identified during coordination 

with the local field office, and in some 

instances (e.g., with new information), 

the Service may conclude that one or 

more activities identified here will be 


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considered likely to result in violation 

of section 9. 

At this time, we are unable to identify 

specific activities that will be 

considered likely to result in a violation 

of section 9 of the Act beyond what is 

already clear from the descriptions of 

the prohibitions in section 9(a)(2) of the 

Act and at 50 CFR 17.61. Questions 

regarding whether specific activities 

would constitute a violation of section 

9 of the Act should be directed to the 

New Mexico Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

II. Critical Habitat 

Background 

Section 4(a)(3) of the Act requires 

that, to the maximum extent prudent 

and determinable, we designate a 

species’ critical habitat concurrently 

with listing the species. Critical habitat 

is defined in section 3 of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are 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 

requirement that each Federal action 

agency ensure, in consultation with the 

Service, that any action they authorize, 

fund, or carry out is not likely to result 

in the destruction or adverse 

modification of designated 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 also does not 

allow the government or public to 

access private lands. Such designation 

does not require implementation of 

restoration, recovery, or enhancement 

measures by non-Federal landowners. 

Rather, designation requires that, where 

a landowner requests Federal agency 

funding or authorization for an action 

that may affect an area designated as 

critical habitat, the Federal agency 

consult with the Service under section 

7(a)(2) of the Act. If the action may 

affect the listed species itself (such as 

for occupied critical habitat), the 

Federal action agency would have 

already been required to consult with 

the Service even absent the critical 

habitat designation because of the 

requirement to ensure that the action is 

not likely to jeopardize the continued 

existence of the species. Even if the 

Service were to conclude after 

consultation that the proposed activity 

is likely to result in destruction or 

adverse modification of the critical 

habitat, the Federal action agency and 

the landowner are not required to 

abandon the proposed activity, or to 

restore or recover the species; instead, 

they must implement ‘‘reasonable and 

prudent alternatives’’ to avoid 

destruction or adverse modification of 

critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, those physical or 

biological features that are essential to 

the conservation of the species (such as 

space, food, cover, and protected 

habitat). 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

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

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our 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 we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information from the SSA 

report and information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act; (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 


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Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96615 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of this species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

HCPs, or other species conservation 

planning efforts if new information 

available at the time of these planning 

efforts calls for a different outcome. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. On 

April 5, 2024, we published a final rule 

that revised our regulations at 50 CFR 

part 424 to further clarify when 

designation of critical habitat may not 

be prudent (89 FR 24300). Our 

regulations (50 CFR 424.12(a)(1)) state 

that designation of critical habitat may 

not be prudent in circumstances such 

as, but not limited to, the following: 

(i) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(ii) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species; 

(iii) Areas within the jurisdiction of 

the United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; or 

(iv) No areas meet the definition of 

critical habitat. 

In the proposed listing rule, we 

determined that designation of critical 

habitat for swale paintbrush would not 

be prudent (88 FR 37490 at 37502– 

37503, June 8, 2023). We invited public 

comment and requested information on 

our rationale that designation of critical 

habitat was not prudent based on 

circumstance (i). Comments we received 

during the public comment period 

indicated some disagreement that 

collection is a threat to the species, 

which is described and addressed in 

further detail in the Public Comments 

section, above. After review and 

consideration of the comments we 

received, we now make a final 

determination that the designation of 

critical habitat for the swale paintbrush 

is not prudent, in accordance with 50 

CFR 424.12(a)(1). Our not prudent 

finding for the swale paintbrush is 

based on the threat of collection— 

circumstance (i)—which is identical in 

the 2019 regulations (under which the 

proposed rule published) and the 2024 

regulations (under which this final rule 

is being published); thus, there is no 

functional or operation difference in 

application or outcome. Analysis under 

both the 2019 and 2024 regulation 

provisions is identical. 

In our June 8, 2023, proposed rule, we 

noted that because of the small known 

extant range and population size of this 

species, its annual duration and reliance 

on frequent seedbank replenishment, 

and risks to its seedbank from stochastic 

events and other ongoing threats to the 

species, effects from illegal collection 

(removal of plants and damage to 

habitat) would be deleterious to the 

swale paintbrush (88 FR 37490 at 

37502–37503, June 8, 2023). 

Although no known illegal collection 

events of the swale paintbrush have 

been documented, other species within 

the genus Castilleja are horticulturally 

desirable. Seeds of many Castilleja 

species are readily available via online 

companies, and yellow-bracted species, 

aesthetically similar to the swale 

paintbrush, are marketed as rare. There 

is a history of illegal collection 

occurring for other species at or within 

the near vicinity of the Gray Ranch site. 

These collection efforts involved the 

Sonoran Desert toad (New Mexico 

Department of Game and Fish 2020, pp. 

78–79), New Mexico ridge-nosed 

rattlesnake (Harris Jr. and Simmons 

1975, p. 6; Malpai Borderlands Group 

2008, p. 60), and Mexican hog-nosed 

snake (Medina 2021, pers. comm.). The 

swale paintbrush is easier to detect and 

collect than these mobile, camouflaged 

species. Illegal collection and/or 

vandalism events are difficult to 

document, especially in the case of rare 

plant species, but they are suspected as 

a possible cause for the declines of 

many rare plant species (Krigas et al. 

2014, p. 86; Margulies et al. 2019, pp. 

174, 178; Lavorgna et al. 2020, p. 28). 

Additionally, swale paintbrush 

locality data are not published within 

online databases due to the species’ 

rarity and limited distribution (Gilbert 

and Pearson 2021, unpaginated; 

iNaturalist 2023, unpaginated; Natural 

Heritage New Mexico n.d., 

unpaginated). Designation of critical 

habitat requires the publication of maps 

and a narrative description of specific 

critical habitat areas in the Federal 

Register. The degree of detail necessary 

to properly designate critical habitat is 

considerably greater than the general 

descriptions of location provided in this 

rule to list the swale paintbrush as an 

endangered species. We find that the 

publication of maps and descriptions 

outlining the locations could further 

facilitate unauthorized collection and/or 

vandalism by providing currently 

unavailable precise location 

information. 

Furthermore, we assessed the risks 

associated with a critical habitat 

designation for the swale paintbrush, 

and some of them would be 

catastrophic. The swale paintbrush is an 

annual plant species, and Castilleja seed 

longevity is not documented at greater 

than 2 years in the wild; thus, frequent 

replenishment of the seedbank is 

essential to population persistence 

(Service 2023, p. 22). As few as 2 

consecutive years of adverse 

environmental conditions or humancaused or natural adverse stochastic 

events could lead to population 

extirpation for this species (Service 

2023, p. 30). Factors that thwart 

seedbank replenishment include 

growing season inundation, fire, or 

grazing/trampling; vegetative 

competition; drought; and illegal 

collection (Service 2023, pp. 28–31, 34, 

95). These factors can occur 

simultaneously or consecutively, and 

synergistic interactions between these 

threats are possible (Service 2023, p. 

30). Given the small known extant 

range—approximately 11 hectares (28 

acres)—and population size of the 

species, combined with risks to its 

seedbank from stochastic events and 

other ongoing threats to the species, the 

swale paintbrush is exceptionally 

vulnerable to adverse effects from illegal 

collection (including removal of swale 

paintbrush seeds from the wild) and/or 

vandalism. Such adverse effects include 

genetic effects (loss of genetic diversity, 

evolutionary potential, and adaptive 

capacity) and habitat effects (changes in 

habitat quality) in addition to 

demographic effects (reduced seed bank 

abundance and, therefore, reduced 

population abundance). The actual 

severity of impact from a collection 

event depends on how a collection is 

conducted as well as the population 

abundance and fecundity at the site in 

years preceding, during, and following 

the collection event. While the 

consequences of any given collection 

event are unpredictable, increased 

collection pressure—combined with the 


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96616 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

impacts of other, ongoing stressors—is 

likely to result in increased risk of 

population extirpation and, thus, 

species extinction in the wild. 

Overall, given the small known extant 

range and population size of this 

species, its annual duration and reliance 

on frequent seedbank replenishment, 

and risks to its seedbank from stochastic 

events and other ongoing threats to the 

species, effects from illegal collection 

(removal of plants and damage to 

habitat) would be deleterious to the 

swale paintbrush. Therefore, in 

accordance with 50 CFR 424.12(a)(1), 

we determine that designation of critical 

habitat is not prudent for the swale 

paintbrush. 

Required Determinations 

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, May 4, 

1994), Executive Order 13175 

(Consultation and Coordination with 

Indian Tribal Governments), the 

President’s memorandum of November 

30, 2022 (Uniform Standards for Tribal 

Consultation; 87 FR 74479, December 5, 

2022), and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

federally recognized Tribes and Alaska 

Native Corporations (ANCs) on a 

government-to-government basis. In 

accordance with Secretary’s Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We contacted all Tribal entities with 

documented cultural interests in 

Hidalgo County, New Mexico—the Hopi 

Tribe, the White Mountain Apache 

Tribe, the Mescalero Apache Tribe, and 

the Fort Sill Apache Tribe—to provide 

them notice of our status review; solicit 

information and invite their 

participation in the SSA process; and 

inform them of the publication of our 

June 8, 2023, proposed rule and its open 

public comment period. We did not 

receive any information from Tribal 

entities during the SSA process or 

during our June 8, 2023, proposed rule’s 

public comment period. We will 

continue to coordinate with Tribal 

entities throughout the recovery process 

for the swale paintbrush. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the New Mexico 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this rule are 

the staff members of the Fish and 

Wildlife Service’s Species Assessment 

Team and the New Mexico Ecological 

Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Plants, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. In § 17.12, in paragraph (h), amend 

the List of Endangered and Threatened 

Plants by adding an entry for ‘‘Castilleja 

ornata’’ in alphabetical order under 

FLOWERING PLANTS to read as 

follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Scientific name Common name Where listed Status Listing citations and applicable rules 

FLOWERING PLANTS

* * * * * * * 

Castilleja ornata ................. Swale paintbrush ............... Wherever found ................. E 89 FR [INSERT FEDERAL REGISTER 

PAGE WHERE THE DOCUMENT BEGINS], 12/05/2024. 

* * * * * * * 

Gary Frazer, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2024–28357 Filed 12–4–24; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 231215–0305; RTID 0648– 

XE501] 

Fisheries of the Northeastern United 

States; Summer Flounder Fishery; 

2024 Commercial Quota Harvested for 

the State of Rhode Island 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS announces that the 

2024 summer flounder commercial 

quota allocated to the State of Rhode 

Island has been harvested. Vessels 

issued a commercial Federal fisheries 

permit for the summer flounder fishery 

may not land summer flounder in 

Rhode Island for the remainder of 

calendar year 2024, unless additional 

quota becomes available through a 

transfer from another state. Regulations 

governing the summer flounder fishery 


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