99656 Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2020–0042; 

FXES1111090FEDR–245–FF09E21000] 

RIN 1018–BD94 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for the Pen ̃ asco Least 

Chipmunk and Designation of Critical 

Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), list the 

Pen ̃ asco least chipmunk (Neotamias 

minimus atristriatus), a mammal from 

New Mexico, as an endangered species 

under the Endangered Species Act of 

1973 (Act), as amended. We also 

designate critical habitat. In total, 

approximately 1,774 hectares (4,386 

acres) in Lincoln County, New Mexico, 

fall within the boundaries of the critical 

habitat designation. This rule extends 

the protections of the Act to this species 

and its designated critical habitat. 

DATES: This rule is effective January 9, 

2025. 

ADDRESSES: This final rule, the 

proposed rule, comments and materials 

we received on the proposed rule, and 

supporting materials we used in 

preparing this rule, such as the species 

status assessment report, are all 

available on the internet at https://

www.regulations.gov at Docket No. 

FWS–R2–ES–2020–0042. 

For the critical habitat designation, 

the coordinates or plot points or both 

from which the maps are generated are 

included in the decision file for this 

critical habitat designation and are also 

available at https://www.regulations.gov 

at Docket No. FWS–R2–ES–2020–0042. 

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, 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 Pen ̃ asco least 

chipmunk meets the definition of an 

endangered species; therefore, we are 

listing it as such and finalizing a 

designation of its critical habitat. Both 

listing a species as an endangered or 

threatened species and designating 

critical habitat 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 Pen ̃ asco least chipmunk 

(Neotamias minimus atristriatus) as an 

endangered species under the 

Endangered Species Act. We are also 

designating critical habitat for this 

species in three units, on public 

property totaling 1,774 hectares (4,386 

acres) in Lincoln County, New Mexico. 

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 the Pen ̃ asco least 

chipmunk is endangered due to the 

following threats: vegetation shifts, 

wildfire, forest encroachment, 

recreation, development, and land use 

(Factor A), disease (Factor C), nonnative 

species (Factors A and C), and small 

population size and lack of connectivity 

(Factor E). 

Although small population size is the 

primary stressor to the Pen ̃ asco least 

chipmunk, Risk Factors for Pen ̃ asco 

Least Chipmunk, below, presents a 

broader discussion of the threats. We 

have found that existing regulatory 

mechanisms do not adequately reduce 

the threats acting on the species to 

eliminate the risk of extinction (Factor 

D). 

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

the Secretary of the Interior (Secretary), 

to the maximum extent prudent and 

determinable, concurrently with listing 

designate critical habitat for the species. 

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

critical habitat as (i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed, 

on which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protections; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. 

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

Secretary must make the designation on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impacts of specifying any 

particular area as critical habitat. 

Previous Federal Actions 

Please refer to the proposed listing 

and critical habitat rule (86 FR 53583) 

for the Pen ̃ asco least chipmunk 

published on September 28, 2021, for a 

detailed description of previous Federal 

actions concerning this species. 

Peer Review 

A species status assessment (SSA) 

team prepared an SSA report for the 

Pen ̃ asco least chipmunk (Service 2024, 

entire). 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 Pen ̃ asco least 

chipmunk SSA report. As discussed in 

the proposed rule, we sent the SSA 

report to five independent peer 

reviewers and received three responses. 

The peer reviews can be found at 

https://www.regulations.gov in Docket 

No. FWS–R2–ES–2020–0042. 

In preparing the proposed rule, we 

incorporated the results of these 

reviews, as appropriate, into the SSA 

report, which was the foundation for the 


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Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 99657 

proposed rule and this final rule. A 

summary of the peer review comments 

and our responses can be found in the 

proposed rule (86 FR 53583; September 

28, 2021). 

Summary of Changes From the 

Proposed Rule 

We reviewed the comments related to 

our proposed listing determination and 

critical habitat for the Pen ̃ asco least 

chipmunk (see Summary of Comments 

and Recommendations, below), 

completed our analysis of areas 

considered for exclusion under section 

4(b)(2) of the Act, and reviewed our 

analysis of the physical or biological 

features essential to the conservation of 

the Pen ̃ asco least chipmunk. We 

incorporated new information provided 

during the comment period into the 

SSA report, which is available as 

version 1.1 (Service 2024, entire). This 

final rule incorporates changes from our 

2021 proposed listing and critical 

habitat rule (86 FR 53583; September 

28, 2021) based on the comments that 

we received and have responded to in 

this document and considers efforts to 

conserve the Pen ̃ asco least chipmunk. 

We make several minor revisions in this 

rule to clarify some information, and we 

update or add new references. 

Based on information we received in 

comments regarding the critical habitat 

for the Pen ̃ asco least chipmunk, we 

added details to the list of physical or 

biological features essential to the 

conservation of the species to more 

accurately reflect the chipmunk’s need 

for habitat containing widely spaced 

large-diameter conifers, such as 

Engelmann spruce (Picea engelmannii) 

or ponderosa pine (Pinus ponderosa), 

intermixed in low densities with the 

meadow/grassland vegetation. These 

habitat features provide shade that 

protects the understory habitat, provide 

chipmunks cover from aerial predators, 

and support the species’ life history. 

Additionally, we added discussion 

regarding the Pen ̃ asco least chipmunk’s 

taxonomy, which has been the subject of 

several scientific articles released since 

publication of our proposed rule to list 

the species. 

In 2023, we received a request from 

the Mescalero Apache Tribe to exclude 

portions of the proposed critical habitat 

from Unit 3–Sierra Blanca in southern 

New Mexico. The area proposed for 

designation as critical habitat included 

subalpine habitat located within the 

Lincoln National Forest, the Lincoln 

National Forest Wilderness Area, and 

Mescalero Apache Tribal Reservation 

land. A portion of the Sierra Blanca Unit 

known as the Ski Apache Resort is 

managed by the U.S. Forest Service as 

part of the Lincoln National Forest and 

operated under a special use permit by 

the Mescalero Apache Tribe. The Tribe 

requested that the Reservation land and 

the Ski Apache Resort be excluded from 

the designation. 

We found that the benefits of 

including these two portions of the 

Sierra Blanca Unit are outweighed by 

the more substantial benefits of 

excluding them regarding (1) the 

advancement and support of our Federal 

Indian Trust obligations and the 

maintenance of effective collaboration 

and cooperation to promote the 

conservation of Pen ̃ asco least 

chipmunk; (2) the maintenance of 

effective working relationships and an 

existing partnership between the Tribe 

and the U.S. Forest Service to promote 

the conservation of the Pen ̃ asco least 

chipmunk and its habitat; (3) allowance 

for continued meaningful collaboration 

and cooperation with the Tribe to 

implement natural resource 

conservation; and (4) provision of future 

conservation efforts that would benefit 

other listed species and their habitats. 

Based on our analysis, we are excluding 

the Reservation land and the Ski 

Apache Resort from Unit 3–Sierra 

Blanca, a net decrease of 886 hectares 

(2,189 acres) from the proposed rule (see 

table 4, below). While the area proposed 

for critical habitat was in Lincoln and 

Otero Counties, the area in Otero 

County is now being excluded. The 

critical habitat in this final designation 

is entirely within Lincoln County. More 

information can be found below in 

Exclusions Based on Other Relevant 

Impacts. 

Summary of Comments and 

Recommendations 

In the proposed rule published on 

September 28, 2021, we requested that 

all interested parties submit written 

comments on the proposal by November 

29, 2021. 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. Newspaper notices 

inviting general public comment were 

published in the Albuquerque Journal. 

We did not receive any requests for a 

public hearing. All substantive 

information received during the 

comment period has either been 

incorporated directly into this final 

determination, has been used to clarify 

the information in the SSA report, or is 

addressed below. 

Comments From States 

(1) Comment: Multiple commenters 

cited the recent challenge to the 

taxonomic certainty of the Pen ̃ asco least 

chipmunk in a peer-reviewed scientific 

publication (Puckett et al. 2021). Several 

commenters, including the New Mexico 

Department of Game and Fish, 

challenged the results of the new 

publication and disagreed with the 

article’s recommendation that the 

Pen ̃ asco least chipmunk be regarded as 

part of a different subspecies. 

Our response: We considered the best 

scientific and commercial data available 

regarding the Pen ̃ asco least chipmunk to 

evaluate its status under the Act. We 

evaluated the status of the species just 

prior to the publication of an article by 

Puckett et al. (2021) that challenged the 

taxonomic status of the Pen ̃ asco least 

chipmunk. Based on an analysis of 

genomic data of Pen ̃ asco least 

chipmunks within the White and 

Sacramento Mountains of southeastern 

New Mexico in comparison to other 

Neotamias minimus subspecies 

throughout the Southwest United States, 

the researchers suggested that the 

current taxonomic structure of 

Neotamias minimus subspecies should 

be revised. That taxonomic revision 

would result in the Pen ̃ asco least 

chipmunk becoming part of N. m. 

operarius, a subspecies with a much 

larger range. We considered the 

information presented in Puckett et al. 

(2021) in our review of the best 

available science, and we considered 

that the interpretation of the genomic 

data in that article has been disputed by 

others in the scientific community (see 

Hope and Frey 2021), and the 

discussion is ongoing with the weight of 

scientific research balancing in favor of 

retaining the current subspecies 

classification. The committee with 

primary responsibility for evaluating 

and accepting changes to the taxonomy 

of the Pen ̃ asco least chipmunk is the 

American Society of Mammalogists, 

which has not changed the taxonomy of 

the Pen ̃ asco least chipmunk, and the 

Service does not typically play a role in 

those decisions. At the time of 

publication of the proposed rule, the 

taxonomic status of the Pen ̃ asco least 

chipmunk as N. m. atristriatus was 

supported as valid by the scientific 

community, and it continues to be 

regarded as N. m. atristriatus to this day. 

Science is a cumulative process, and 

the body of knowledge is ever-growing. 

In light of this, the Service has taken 

and will always take new research into 

consideration. The Service will consider 

any new taxonomic research in the 

future and whether the new information 

may support a revision of entity. 


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Public Comments 

(2) Comment: Several commenters 

expressed concern that the listing of the 

Pen ̃ asco least chipmunk with critical 

habitat would result in restrictions to 

recreational use on public lands. 

Our response: The listing of the 

Pen ̃ asco least chipmunk with 

designation of critical habitat does not 

prevent access to any land, whether 

private, Tribal, State, or Federal. The 

species receives protection under 

section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to jeopardize the 

continued existence of listed species or 

result in the destruction or adverse 

modification of critical habitat. Critical 

habitat for the Pen ̃ asco least chipmunk 

occurs entirely on lands managed by the 

U.S. Forest Service. We have no 

information that would indicate that a 

possible outcome of a section 7 

consultation in response to the listing 

and designation of critical habitat for 

the Pen ̃ asco least chipmunk would be 

closures to public access or restrictions 

to currently permissible activities such 

as recreation on U.S. Forest Service 

lands or lands owned or managed by 

any other entity. This is because 

designation of critical habitat does not 

affect land ownership, establish any 

closures, or impose restrictions on use 

of or access to the designated areas. 

Critical habitat designation also does 

not establish specific land management 

standards or prescriptions. 

(3) Comment: One commenter stated 

that there was a lack of attempt to 

protect the Pen ̃ asco least chipmunk and 

its habitat through voluntary measures 

prior to proposing that the species be 

listed. The commenter also suggested 

that listing the species would impact 

private landowner rights by interfering 

with their ability to make best use of 

their land. 

Our response: We are required to 

make our determination based on the 

best scientific and commercial data 

available at the time of our rulemaking. 

The listing of a species does not obstruct 

the development of conservation 

agreements or partnerships to conserve 

the species. Once a species is listed as 

either an endangered or threatened 

species, it is subject to many tools the 

Act provides to advance the 

conservation of listed species. 

Conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities, including the 

voluntary cooperation of non-Federal 

landowners. Building partnerships and 

promoting cooperation of landowners 

are essential to understanding the status 

of species on non-Federal lands and 

may be necessary to implement recovery 

actions such as reintroducing listed 

species, habitat restoration, and habitat 

protection. Once a species is listed, 

private or other non-Federal property 

owners may enter into voluntary 

conservation benefit agreements that 

can contribute to the recovery of 

species, habitat conservation plans that 

allow activities (e.g., grazing) to proceed 

while minimizing effects to species, 

funding through the Partners for Fish 

and Wildlife Program to help promote 

conservation actions, and grants to the 

States under section 6 of the Act. 

These plans or agreements provide for 

the conservation of the listed species 

while providing the landowner with a 

permit for incidental take of the species 

during the course of otherwise lawful 

activities. These plans and agreements 

are voluntary and ensure respect for 

private property rights. We encourage 

any landowners with Pen ̃ asco least 

chipmunks or other listed species 

present on their property and who think 

they carry out activities that may 

negatively impact that listed species to 

work with the Service. 

The Act does not authorize the 

Service to regulate private actions on 

private lands or confiscate private 

property as a result of critical habitat 

designation. Designation of critical 

habitat does not affect land ownership, 

establish any closures, or impose 

restrictions on use of or access to the 

designated areas. Critical habitat 

designation also does not establish 

specific land management standards or 

prescriptions. Federal agencies are 

required to consult with the Service on 

any action they authorize, fund, or carry 

out to ensure it does not result in the 

destruction or adverse modification of 

critical habitat. 

For the Pen ̃ asco least chipmunk, 

designation of critical habitat will not 

affect private landowners since there is 

no critical habitat designated on private 

land. All critical habitat is on U.S. 

Forest Service land on the Lincoln 

National Forest. The Federal land will 

be managed for species conservation 

and critical habitat protection as 

required under the Act. 

(4) Comment: One commenter 

requested that the effects of recreational 

activities, with a focus on mountain 

biking, be specifically studied prior to 

listing the Pen ̃ asco least chipmunk with 

critical habitat. The commenter 

suggested that the Pen ̃ asco least 

chipmunk is known to feed on 

sunflower seeds (Frey and Hays 2017, p. 

34) and thus would benefit from human 

recreation due to a potential increase in 

annual sunflowers (Helianthus annuus), 

which proliferate along disturbed trails 

and roadways (USDA 2006, p. 3). 

Our response: We considered the best 

scientific and commercial data available 

regarding the Pen ̃ asco least chipmunk to 

evaluate its status under the Act. We 

solicited peer review of our evaluation 

of the available data and scientific 

literature in making our determination, 

and our peer reviewers supported our 

analysis. At the time of publication of 

the proposed rule, we had not found 

any scientific or commercial data or 

other information pertaining to the 

benefits of recreational activities or 

development of recreational access to 

the habitat of the Pen ̃ asco least 

chipmunk. Further, the rationale posed 

by this commenter is not supported by 

the current literature. Frey and Hays 

(2017) do not suggest that sunflowers 

along trails and roadways are a critical 

need for this species, but simply state 

that seeds and flowers of various forbs, 

including those from the Asteraceae 

family, which includes sunflowers, are 

an important food source for the 

chipmunks in their subalpine habitat. 

The Annual Sunflower Plant Guide 

developed by the Natural Resources 

Conservation Service (USDA 2006, p. 3) 

states only that the species is a 

‘‘common and widespread roadside 

weed,’’ which is an indication that the 

species is often observed there. It does 

not suggest that trails or roadways cause 

an increase in annual sunflowers and 

instead states that the species is 

‘‘common in open sites in many 

different habitats’’ (USDA 2006, p. 3). 

We do not consider the increase in any 

food source for the chipmunk along 

roadways to be beneficial to the 

conservation and recovery of the 

species, owing to a likely increase in 

mortalities from vehicles resulting from 

increased feeding activity along 

roadways. 

Science is a cumulative process, and 

the body of knowledge is ever-growing. 

In light of this, the Service will always 

take new research into consideration 

and incorporate it into our recovery 

planning efforts for the species. 

(5) Comment: Some commenters 

expressed concern that the proposed 

critical habitat on the Mescalero Apache 

Tribal lands should not be excluded in 

the final rule because the species has 

historically occurred there. 

Our response: The Act specifically 

requires the Service to designate critical 

habitat for listed species to the 

maximum extent prudent and 

determinable and does not restrict such 

designation to particular land 

ownership. Rather, areas that meet the 


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definition of critical habitat, as 

determined on the basis of the best 

scientific data available, are proposed 

for designation. However, section 4(b)(2) 

of the Act further provides that the 

Secretary, in designating critical habitat 

and making revisions, shall take into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may then choose to exercise 

her discretion to exclude any area from 

critical habitat if she determines that the 

benefits of exclusion outweigh the 

benefits of specifying such areas as part 

of the critical habitat unless that 

exclusion would result in the extinction 

of the species. 

In this final rule, the Secretary has 

exercised her discretion to exclude 

critical habitat on the Mescalero Apache 

Tribe’s land and on an adjacent parcel 

of U.S. Forest Service land operated by 

the Tribe under a special use permit. 

This decision was based upon (1) the 

advancement and support of our Federal 

Indian Trust obligations and the 

maintenance of effective collaboration 

and cooperation to promote the 

conservation of Pen ̃ asco least 

chipmunk; (2) the maintenance of 

effective working relationships and an 

existing partnership between the Tribe 

and U.S. Forest Service to promote the 

conservation of the Pen ̃ asco least 

chipmunk and its habitat; (3) allowance 

for continued meaningful collaboration 

and cooperation with the Tribe to 

implement natural resource 

conservation; and (4) provision of future 

conservation efforts that would benefit 

other listed species and their habitats. 

Exclusion should never be interpreted 

as meaning that such areas are 

unimportant to the conservation of the 

species. Exclusion is based upon a 

determination by the Secretary that the 

benefit of excluding these areas 

outweighs the benefit of including them 

in critical habitat. 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 therefore have 

taken these directives into consideration 

in our determination. 

(6) Comment: A commenter stated 

that the critical habitat for the Pen ̃ asco 

least chipmunk should not be restricted 

to the current known occupied habitat 

in the White Mountains of New Mexico 

but should also include historically 

occupied habitat in the James Canyon 

and Sacramento Lookout areas of the 

South Sacramento Mountains. 

Our response: Areas proposed for 

Pen ̃ asco least chipmunk critical habitat 

were identified as such because they 

either currently provide the essential 

physical or biological features, if 

occupied, or were otherwise determined 

to be essential for the conservation of 

the species, if unoccupied. The James 

Canyon and Sacramento Lookout areas 

of the South Sacramento Mountains are 

outside the known current range of the 

species. These historically occupied 

areas have not had any detections of the 

species since 1966. The habitat in these 

locations has been significantly altered 

from historical natural conditions and is 

no longer suitable for the species. The 

commenter did not provide additional 

information or state how these areas are 

essential for the conservation of the 

species. Therefore, we concluded that 

these comments did not provide new or 

additional information to consider in 

this final listing rule of the Pen ̃ asco least 

chipmunk. 

(7) Comment: We received multiple 

comments regarding the need to 

incorporate the recently published 

research findings regarding Pen ̃ asco 

least chipmunk habitat use and 

population status as the basis for 

considering additional critical habitat 

areas in the South Sacramento 

Mountains region. The new research 

cited in these comments indicated that 

Pen ̃ asco least chipmunks were found in 

habitat conditions that differed to some 

degree from our descriptions in the 

proposed critical habitat. Individuals 

were found in intermingled meadows 

and sparse trees commonly found in 

forest openings and edges and generally 

characterized by robust understory of 

herbaceous plants and shrubs that 

provide visual obstruction for cover 

(McKibben and Frey 2020, pp. 33–34; 

McKibben 2022, p. 129). Other research 

indicated that the loss of historical 

populations in the South Sacramento 

Mountains was due to the loss of 

suitable microhabitat conditions in that 

historically occupied habitat in recent 

decades (Jacobson et al. 2021, pp. 32– 

33). 

Our response: The Service will always 

take new research into consideration for 

listing and critical habitat 

determinations. The scientific 

information we received from these 

commenters provides new and useful 

information for the Service to consider 

incorporating into our recovery 

planning and development of a recovery 

implementation strategy for the Pen ̃ asco 

least chipmunk and it has been 

incorporated into version 1.1 of the SSA 

report (Service 2024). However, this 

new information does not change our 

critical habitat designation. Surveys 

indicated that Pen ̃ asco least chipmunks 

do not occupy the South Sacramento 

Restoration Project area where the 

research was conducted, an area outside 

the known current range of the species, 

because the habitat is not suitable for 

the species (Jacobson et al. 2021, p. 2). 

High-elevation habitat in the South 

Sacramento Restoration Project area 

may contain many of the conditions 

supportive of the species (i.e., 

Engelmann spruce stands with 

deciduous shrubs), but the appropriate 

understory microhabitat conditions do 

not exist. Therefore, the area is not 

habitat for the Pen ̃ asco least chipmunk, 

and we cannot designate it as critical 

habitat. 

(8) Comment: Several commenters 

requested that we consider new 

information from recent analyses of 

climate change effects to the Pen ̃ asco 

least chipmunk in our proposed rule 

(see Service 2024 and McKibben and 

Frey 2020). 

Our response: In our proposed rule, 

we cited our analysis of the effects of 

climate change on the Pen ̃ asco least 

chipmunk and its habitat that was 

included in our species status 

assessment (Service 2024, entire). The 

information we used in our analysis was 

the best available at that time. We 

framed our climate change analysis to 

show how changes in precipitation or 

temperature would most likely affect the 

biological or natural history needs of the 

subspecies. We assessed changes in air 

temperature and snow pack in the 

winter that could impact the 

overwintering of the Pen ̃ asco least 

chipmunk (less snow could impact 

temperature stability in underground 

burrows over winter), summer 

precipitation and temperature that 

could affect food resources for the 

Pen ̃ asco least chipmunk, as well as how 

changes to summer precipitation and 

temperatures could potentially 

influence disease dynamics and 

outbreaks. The results of our model 

showed that for the time period of 2025 

through 2049 in the Sacramento and 

White Mountains, we expect there to be 

less than one millimeter change in 

annual precipitation, less than 2 

millimeters change in snow 

precipitation in winter months, and less 

than 1.5 °C change in temperature 

minimums and maximums. The effect of 

these changes that could relate to 

Pen ̃ asco least chipmunk resources or 

stressors appears to be mild. Therefore, 

although the impacts of climate change 

on the Pen ̃ asco least chipmunk are 

expected to be negative, our analysis did 

not find it to be one of the most 


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99660 Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 

significant risk factors for the subspecies 

and its habitat over the next 30-year 

period. 

In our proposed rule to list the 

species, we determined that stressors 

affecting the viability of the Pen ̃ asco 

least chipmunk include vegetation 

shifts, wildfire, forest encroachment, 

recreation, development, and land use 

(Factor A), disease (Factor C), nonnative 

species (Factors A and C), and small 

population size and lack of connectivity 

(Factor E). The influence of climate 

change on these stressors is expected to 

be negative, though minor, compared to 

other influences. For example, the 

magnitude, frequency, and intensity of 

wildfire in the Sacramento and White 

Mountains is likely to be influenced by 

reduction of precipitation and warmer 

temperatures resulting from climate 

change, causing fires to be more severe 

than they were historically. Our analysis 

found the severity of wildfire is most 

highly influenced by the vegetation 

shifts that have occurred, and the 

reduction of precipitation and warmer 

temperatures may add to the level of 

severity. 

We are required under the Act to 

make our determination based on the 

best scientific and commercial data 

available at the time of our rulemaking 

to evaluate the status of the Pen ̃ asco 

least chipmunk under the Act. We 

reviewed the new climate change 

information provided, and it does not 

change our current finding that the 

species is endangered, nor does it 

change our critical habitat designations. 

We will consider incorporating the new 

information into our recovery planning 

and the development of a recovery 

implementation strategy for the Pen ̃ asco 

least chipmunk. 

I. Final Listing Determination 

Background 

The Pen ̃ asco least chipmunk 

(Neotamias minimus atristriatus) is 

currently recognized as one of 17 

subspecies of least chipmunk 

(Neotamias [=Tamias] minimus) 

(Wilson and Reeder 2005, p. 815). Least 

chipmunks are smaller than most other 

chipmunk species and belong to the 

family Sciuridae. The Pen ̃ asco least 

chipmunk is known from the 

Sacramento Mountains and White 

Mountains in Lincoln and Otero 

Counties in southern New Mexico. 

Pen ̃ asco least chipmunks are grayishbrown mixed with cinnamon-buff on 

the rump and thighs (Sullivan 1993, p. 

1), with a blackish head with white and 

cinnamon, and a whitish patch behind 

each ear. The sides of their bodies are 

light brown, and underparts are whitish 

with buff; their feet are light pinkcinnamon; the tail is blackish or brown 

with pinkish-cinnamon; and dark 

stripes on the back and head are 

blackish to blackish-brown, edged with 

tawny along the spine, and bordered 

with white on the face and sides 

(Sullivan 1993, pp. 1–2). The Pen ̃ asco 

least chipmunk has pale yellowishorange hindfeet, a light beige, yellowish, 

or orange belly, and dark underfur (Frey 

2010, p. 11). A full species description 

and description of its habitat can be 

found in chapter 2 of the SSA report 

(version 1.1; Service 2024, pp. 13–21). 

The Pen ̃ asco least chipmunk was first 

described as a new species, Eutamias 

atristriatus, in 1913 based on 10 

specimens collected from ponderosa 

pine forest in the Sacramento 

Mountains in 1902 (Bailey 1913, entire). 

This taxonomy has been revised 

multiple times as the taxonomy of 

chipmunks and least chipmunks 

changed, including use of the synonyms 

Eutamias and Tamias for Neotamias. 

Howell (1929, entire) designated the 

taxon a subspecies of least chipmunk, 

Tamias minimus atristriatus. 

Conley (1970, entire) purported that 

the Sacramento Mountains population 

was the only population of least 

chipmunks in New Mexico worthy of 

nomenclatural distinction based on 

morphological distinctiveness. 

However, Sullivan and Peterson (1988, 

p. 21) recommended the retention of N. 

m. atristriatus as a subspecies that 

included both the New Mexico White 

Mountains and Sacramento Mountains, 

based on more in-depth morphological 

and genetic analyses. Despite recent 

discussions about the species’ taxonomy 

(Puckett et al. 2021, entire; Hope and 

Frey 2021, entire), as described in the 

comments section above, N. m. 

atristriatus is currently recognized as a 

valid subspecies of N. minimus. 

Habitat occupied by Pen ̃ asco least 

chipmunk varies by population between 

the Sacramento and White Mountains. 

In the Sacramento Mountains, Pen ̃ asco 

least chipmunk habitat use was 

generally in mature, open ponderosa 

pine forest savanna and adjacent valley 

meadows (Frey and Hays 2017, p. 1). 

Specimens of the Pen ̃ asco least 

chipmunk from the Sacramento 

Mountains were originally described 

from the yellow pine zone (= ponderosa 

pine) (Bailey 1913, p. 130) and within 

the transition zone from the juncture of 

yellow pines and junipers up to the 

edge of spruce-fir forest (Bailey 1931, p. 

91). However, the Pen ̃ asco least 

chipmunk has not been detected in the 

Sacramento Mountains since 1966, so 

our understanding of habitat use and 

distribution in that area is limited to 

historical records and reports. 

In the White Mountains, the Pen ̃ asco 

least chipmunk is associated with the 

high-elevation subalpine Thurber’s 

fescue meadow biotic community (Frey 

and Hays 2017, p. 34). This habitat is 

distinctly different from the lower 

elevation, montane meadow grassland 

communities within mixed conifer and 

ponderosa pine forest zones (Dyer and 

Moffett 1999, entire; Dick-Peddie 1993, 

pp. 101, 104), as would be found in the 

Sacramento Mountains. In the White 

Mountains, its habitat contains widely 

spaced large-diameter conifers, such as 

Engelmann spruce or ponderosa pine, 

intermixed in low densities with the 

meadow/grassland vegetation 

(McKibben and Frey 2020, p. 33). These 

features provide shade that protects the 

understory habitat, provide chipmunks 

cover from aerial predators, and support 

the species’ life history. 

Least chipmunks forage mainly on the 

ground or in shrubs (Hoffmeister 1986, 

p. 15). They eat a variety of seeds of 

shrubs, forbs, and some conifers, and 

other plant parts and fungi as their main 

food sources; they also feed on animal 

foods such as arthropods, carrion, and 

bird eggs (Bailey 1931, p. 91; Vaughn 

1974, pp. 770–772; Reid 2006, p. 212). 

The least chipmunk does not develop 

additional fat deposits in the fall but 

relies primarily on brief periods of 

activity to consume cached food for 

survival over the winter (Verts and 

Carraway 2001, p. 7), hibernating (in 

this case, overwintering with periods of 

both torpor and activity) in special 

underground chambers (Reid 2006, p. 

212). Pen ̃ asco least chipmunks in the 

White Mountains likely forage primarily 

on the seeds and flowers of forbs, 

particularly species of Asteraceae (Frey 

and Hays 2017, p. 34). Bailey (1931, p. 

91) observed the subspecies foraging on 

sunflower (Helianthus spp.) seeds along 

fencelines and on wheat (Triticum spp.) 

and oats (Avena sativa) at the edges of 

agricultural fields in the Sacramento 

Mountains. The diet also includes 

flowers and fruits of gooseberry (Ribes 

spp.) and wild strawberry (Fragaria 

spp.), pinyon (Pinus edulis) nuts, 

Gambel oak (Quercus gambelii) acorns, 

insects, and other items (Sullivan 1993, 

p. 3). Like other least chipmunks, the 

Pen ̃ asco least chipmunk likely has 

relatively low water requirements, 

which may allow it to exploit the drier 

conditions of open subalpine meadows 

(Frey and Hays 2017, p. 34). 

Least chipmunk breeding takes place 

soon after emergence from the 

hibernation chambers (Reid 2006, p. 

212). In spring, females typically 

produce one litter of four to five pups 

(Skryja 1974, p. 223), but the size of the 

litter can range from three to eight, with 


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young being born in May or June (Reid 

2006, p. 212). For Pen ̃ asco least 

chipmunks, young are thought to be 

born in mid- to late-summer, as halfgrown juveniles were observed 

historically in early September in the 

Sacramento Mountains (Bailey 1931, p. 

91). The average lifespan of least 

chipmunks overall is 0.7 years (Erlien 

and Tester 1984, p. 2), but individuals 

have been known to live up to 6 years 

(Reid 2006, p. 212). 

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 part 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 part 17 (89 FR 23919). 

These final rules are now in effect and 

are incorporated into current 

regulations. Our analysis for this final 

decision applied our current 

regulations. Given that we proposed 

listing and designating critical habitat 

for 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 have been 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 a ‘‘species’’ as 

including any subspecies of fish or 

wildlife or plants, and any distinct 

population segment of any species of 

vertebrate fish or wildlife which 

interbreeds when mature. The Act 

defines 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. 

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. 

O=≥xl≥ibmcloud.com/files/uploads/M37021.pdf). The foreseeable future 

extends as far into the future as the U.S. 

Fish and Wildlife Service and National 

Marine Fisheries Service (hereafter, the 

Services) can make reasonably reliable 

predictions about the threats to the 

species and the species’ responses to 

those threats. We need not identify the 

foreseeable future in terms of a specific 

period of time. We will describe the 

foreseeable future on a case-by-case 

basis, using the best available data and 

taking into account considerations such 

as the species’ life-history 

characteristics, threat-projection 

timeframes, and environmental 

variability. In other words, the 

foreseeable future is the period of time 

over which we can make reasonably 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction, in light of 

the conservation purposes of the Act. 

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 Pen ̃ asco least chipmunk 

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 


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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 FWS–R2–ES–2020–0042 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. 

Summary of Analysis 

To evaluate the current and future 

viability of the Pen ̃ asco least chipmunk, 

we assessed a range of conditions to 

allow us to consider the species’ 

resiliency, representation, and 

redundancy. To maintain long-term 

viability, the Pen ̃ asco least chipmunk 

requires multiple (redundancy) selfsustaining populations (resiliency) 

distributed across the landscape 

(representation). Maintaining 

representation in the form of genetic or 

ecological diversity is important to 

maintain the Pen ̃ asco least chipmunk’s 

capacity to adapt to future 

environmental changes. 

To have healthy demography, Pen ̃ asco 

least chipmunk populations should 

have high abundance, multiple 

subpopulations within each population, 

low rates of predation, low incidence of 

disease, and connectivity between 

habitats for genetic exchange. Pen ̃ asco 

least chipmunk needs healthy 

populations that have all of these factors 

in order to have high resiliency and be 

able to withstand environmental 

stochasticity. 

Suitable Pen ̃ asco least chipmunk 

habitat in the White Mountains includes 

widely spaced large-diameter conifers, 

such as Engelmann spruce or ponderosa 

pine, intermixed in low densities with 

the meadow/grassland vegetation. 

Pen ̃ asco least chipmunk populations 

need abundant food sources (e.g., 

sunflower, gooseberry, wild strawberry, 

pinyon nuts, acorns, and insects) 

occurring in open areas, vegetation that 

allows for cover in open areas (i.e., 

meadow/grassland plant communities), 

and substrate that allows for sentinel 

perching, nesting, and overwintering 

(i.e., rock outcrops or talus). 

Redundancy is a species’ ability to 

withstand catastrophic events based on 

the number and distribution of its 

populations. Redundancy reduces the 

risk that a species as a whole will be 

negatively impacted if an area of the 

species’ range is negatively affected by 

a catastrophic natural or anthropogenic 

event at a given point in time and 

increases the probability of maintaining 

natural gene flow and ecological 

processes (Wolf et al. 2015, pp. 205– 

206). Species that are well-distributed 

across their historical range are less 

susceptible to the risk of extinction as 

a result of a local catastrophic event 

than species confined to smaller areas of 

their range. To have sufficient 

redundancy, Pen ̃ asco least chipmunk 

needs a sufficient number and 

distribution of healthy populations to 

withstand catastrophic events. 

Representation is the ability of the 

species to adapt to physical (e.g., 

climate conditions, habitat conditions or 

structure across large areas) and 

biological changes (e.g., novel diseases, 

pathogens, predators) in its environment 

presently and into the future. To have 

sufficient representation, Pen ̃ asco least 

chipmunk needs healthy populations 

distributed across the range to capture 

the breadth of genetic, climate, 

elevation, and habitat diversity, and 

sufficient connectivity for periodic 

genetic exchange across the range of the 

species. 

In summary, viability is the ability of 

the species to sustain populations in the 

wild over time. The Pen ̃ asco least 

chipmunk needs a sufficient number 

and distribution of healthy populations 

to withstand environmental 

stochasticity (resiliency), catastrophes 

(redundancy), and changes in its 

environment (representation). 

Factors Influencing Species Viability 

We evaluated the past, current, and 

future stressors that affect the Pen ̃ asco 

least chipmunk’s needs for long-term 

viability. Additionally, we evaluated 

several potential stressor sources that 

are not described here because the 

stressor source is predicted to have low 

impact on Pen ̃ asco least chipmunk 

viability. More information on these 

stressors, including interspecific 

competition, scientific collection, and 

climate change can be found in the SSA 

(Service 2024, pp. 52–55). 

Stressors affecting the viability of the 

Pen ̃ asco least chipmunk include 

vegetation shifts, wildfire, forest 

encroachment, recreation, development, 

and land use (Factor A), disease (Factor 

C), nonnative species (Factors A and C), 

and small population size and lack of 

connectivity (Factor E). Considerations 

regarding the existing regulatory 

mechanisms (Factor D) are described 

below. 

Pen ̃ asco least chipmunk habitat is 

afforded some protection under the 

Wilderness Act of 1964 (16 U.S.C. 1131– 

1136). Within the White Mountains, 

approximately 54 percent of the current 

range of the Pen ̃ asco least chipmunk is 

within the Lincoln National Forest 

White Mountain Wilderness Area. This 

designation limits management options 

and conservation efforts in designated 

wilderness areas to some degree. The 

Wilderness Act states that wilderness 

should be managed to preserve its 

natural conditions and yet remain 

untrammeled by man and defines 

wilderness ‘‘as an area of undeveloped 

Federal land retaining its primeval 

character and influence, without 

permanent improvements or human 

habituation’’ (16 U.S.C. 1131–1136). 

Within designated wilderness areas, no 

commercial activities are permitted, no 

permanent or temporary roads, no 

motorized equipment or any form of 

mechanical transport, and no structures 

(16 U.S.C. 1131–1136). Habitat for the 

Pen ̃ asco least chipmunk appears to be 

relatively unaltered in the White 

Mountains Wilderness Area, except for 

the encroachment of trees into meadows 

(Service 2024, p. 35). 

Additionally, the range of the Pen ̃ asco 

least chipmunk overlaps with 

designated Mexican spotted owl (Strix 

occidentalis lucida) critical habitat; the 

management of that habitat for the 

Mexican spotted owl does allow for 

some level of grazing. This activity may 


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result in changes to the plant 

community that do not adversely affect 

the prey base of the Mexican spotted 

owl but is detrimental to the specific 

plant community needs of the Pen ̃ asco 

least chipmunk (Service 2024, pp. 41– 

43). 

Vegetation Shifts, Wildfire, and Forest 

Encroachment 

Over the last ∼150 years, land 

management practices have shifted the 

vegetative components of Pen ̃ asco least 

chipmunk habitat in the Sacramento 

Mountains, resulting in an overall lack 

of suitable habitat for the subspecies. 

The historically open, park-like stands 

of ponderosa pine forest that comprised 

Pen ̃ asco least chipmunk habitat have 

been replaced with high-density, smalldiameter ponderosa pine, with 

encroaching Douglas fir (Pseudotsuga 

menziesii) and white fir (Abies 

concolor), and a lack of native grass 

meadow habitat (Service 2024, pp. 41– 

43). 

These changes in vegetation 

composition (inclusion of less firetolerant species of trees such as Douglas 

fir and white fir) and structure (from 

low-density, large-diameter trees with 

few low branches to high-density, smalldiameter trees with many low 

branches), coupled with the loss and 

conversion of native to nonnative grass 

meadows, alter the suitability of the 

habitat for the Pen ̃ asco least chipmunk 

in the Sacramento Mountains. Effective 

fire exclusion and suppression actions 

in the Sacramento Mountains have also 

contributed to the changes in forest 

composition and structure and have 

resulted in the additional stressor 

source of altered fire regimes. The South 

Fork Fire burned approximately 2 

hectares (6 acres) of the Pen ̃ asco least 

chipmunk’s habitat in the Sacramento 

Mountains before containment in July of 

2024. In the White Mountains, periodic 

wildfire (e.g., Little Bear Fire in 2012 

and Three Rivers Fire in 2021) has 

occurred; despite this occurrence, highdensity, small-diameter trees have 

encroached into Pen ̃ asco least 

chipmunk habitat there as well. 

Forest encroachment into grasslands 

is occurring in both the Sacramento 

Mountains and in the White Mountains, 

although the causes for each are likely 

different. The causes for tree 

encroachment into meadows in the 

Sacramento Mountains is likely related 

to land use and land management 

practices, while the White Mountains 

are influenced by climatic events and 

successional encroachment processes. 

While some landscape restoration 

projects are planned (i.e., the South 

Sacramento Forest Restoration Project) 

that may address some areas of meadow 

encroachment, no additional projects 

are planned within the historical range 

of the Pen ̃ asco least chipmunk either in 

the Sacramento Mountains or the White 

Mountains to control or limit tree 

encroachment into meadow habitat. 

Recreation, Development, Land Use, 

and Land Management 

Agricultural land use in the 

Sacramento Mountains appears to have 

shifted from cultivation in the early part 

of the 20th century to pasture use. This 

conversion likely affected a potentially 

significant food resource (i.e., wheat and 

oat crops) for Pen ̃ asco least chipmunks 

in the Sacramento Mountains, 

specifically James Canyon (Service 

2024, p. 44). It is likely that the highquality, abundant food resource of 

wheat and oat fields drew Pen ̃ asco least 

chipmunks to the fields and roads 

where the animals were easily 

observable, as early records noted that 

Pen ̃ asco least chipmunks were 

especially abundant along rail fences, 

eating oats and wheat at field edges 

(Bailey 1931, p. 91). However, Pen ̃ asco 

least chipmunks were also abundant in 

the open, mature ponderosa pine forests 

(Bailey 1931, p. 91). Pen ̃ asco least 

chipmunks were noted as abundant 

throughout the Sacramento Mountains 

during the early 1900s, in both natural 

open habitat and near agricultural fields 

(Service 2024, p. 45). The change in 

land use from crop fields to pasture for 

livestock likely impacted Pen ̃ asco least 

chipmunks by decreasing the 

availability of an abundant, high-quality 

food source. Grasslands in the bottom of 

canyons that are currently used for 

pasture or livestock are likely not usable 

by the Pen ̃ asco least chipmunk because 

the grasses are likely not tall enough to 

provide shelter and cover (Service 2024, 

p. 45). 

U.S. Forest Service lands are managed 

for multiple uses. In the Sacramento 

Mountains, these uses currently include 

recreation, livestock grazing, and special 

use permits for a variety of actions. 

Recreational use includes camping, 

hiking, biking, and motorized vehicle 

use, among other activities. The 

historical role of livestock grazing and 

timber harvest is described in the SSA 

report (Service 2024, pp. 30–38) in 

terms of altering forest composition, 

structure, and fire regimes. However, 

grazing within the White Mountains 

Wilderness Allotment has been closed 

for 20 years and will remain closed 

(Williams, 2020 pers. comm.). 

The most significant recreational, 

development, and land use activities 

likely to affect the Pen ̃ asco least 

chipmunk in the White Mountains are 

related to the opening, operation, and 

maintenance of the Ski Apache Resort 

on Lookout Mountain (Service 2024, p. 

46). Access roads to Ski Apache and the 

adjacent Buck Mountain were 

constructed in 1960 (Dyer and Moffett 

1999, p. 451). The Resort opened in 

1961 and has since been owned and 

operated by the Mescalero Apache Tribe 

(Ski Apache Resort 2018, entire) on U.S. 

Forest Service land. Ski Apache hosts 

both winter and summer recreation, 

operating under a special use permit 

issued by the U.S. Forest Service. Some 

of the activities also occur on the 

Mescalero Apache Tribe Reservation 

immediately adjacent to the U.S. Forest 

Service land. Summer use of Ski 

Apache Resort includes gondola rides, 

mountain biking, hiking, and zip-lining 

(Service 2024, p. 46). 

In 2016, three Pen ̃ asco least 

chipmunks were observed on two 

survey trap lines on Lookout Mountain 

within Ski Apache Resort (Service 2024, 

p. 47). Lookout Mountain was selected 

to survey for several reasons, the main 

one being that it is located in the same 

large patch of subalpine meadow/tundra 

as that of Sierra Blanca Peak (Frey and 

Hays 2017, p. 9), where many historical 

records show that Pen ̃ asco least 

chipmunk were located. Two of the 

three Pen ̃ asco least chipmunk 

observations in 2016 were located just 

off the access road that leads to, and is 

in close proximity to, the Ski Apache 

zip line infrastructure. Vehicle use on 

the access road and human use for the 

zip line have the potential to be a 

stressor to the Pen ̃ asco least chipmunk 

due to vehicle strikes and disturbance 

from human presence. 

Disease 

A variety of pathogens and diseases 

have the potential to affect or have 

affected the Pen ̃ asco least chipmunk. Of 

these, sylvatic plague has the greatest 

likelihood of being a stressor to the 

subspecies (Service 2024, p. 48). The 

plague is caused by the bacteria Yersinia 

pestis, a highly virulent organism that 

can quickly cause lethal disease in 

susceptible mammals (Abbott and Rocke 

2012, p. 7). Transmission of Y. pestis 

typically occurs through fleas, whereby 

fleas feed on infected hosts and move to 

new hosts. The plague is most 

commonly transmitted through fleas, 

but can also be transferred through 

inhalation, eating of infected animals, or 

through bites, scratches, or direct 

contact with infected animals, tissues, 

or fluids (Abbott and Rocke 2012, p. 18). 

Modes of transmission of Y. pestis in 

wildlife are likely similar, whereby flea 

transmission is most common, but other 

avenues may also occur. 


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The Y. pestis organism likely arrived 

in New Mexico at a time that is 

approximately coincident with observed 

declines of Pen ̃ asco least chipmunk 

populations (that is, beginning in the 

early 1950s through the 1960s). 

Chipmunks, in general, and least 

chipmunks more specifically, have been 

tested in the laboratory and are 

susceptible to plague (Quan and 

Kartman 1962, p. 128). Some epizootics 

caused by plague have been observed in 

chipmunks and other ground squirrels 

(Smith et al. 2010, entire). 

Rodents are the major group of 

animals infected by Y. pestis, and some 

species may act as a reservoir or as an 

‘‘amplifying host’’ for the organism 

(Abbott and Rocke 2012, p. 18). 

Generally, an amplifying host is a host 

in which disease agents, such as viruses 

or bacteria, increase in number (Abbott 

and Rocke 2012, p. 71); in this case, 

‘‘amplifying hosts’’ also applies to hosts 

that are more uniformly susceptible to 

plague and undergo dramatic die-offs 

during outbreaks of plague (Abbott and 

Rocke 2012, p. 17). It is unknown if 

plague has affected the Pen ̃ asco least 

chipmunk in the past, is currently 

affecting the subspecies now, or will in 

the future. However, there is supporting 

evidence that suggests that plague is a 

potential stressor to the viability of 

Pen ̃ asco least chipmunk (Service 2024, 

p. 47). 

Nonnative Species 

Feral hogs have become established as 

a nuisance species in New Mexico and 

elsewhere in the United States (USDA 

Wildlife Services 2010, entire). In New 

Mexico, feral hogs occur within Lincoln 

and Otero Counties. One of the last 

remaining locations in New Mexico 

with significant feral hog numbers is the 

Lincoln National Forest, including the 

47,000-acre USFS White Mountain 

Wilderness Area (USDA 2019, pp. 112– 

114). This area includes the majority of 

the known locations of recent Pen ̃ asco 

least chipmunk occurrences (Service 

2024, pp. 49–50). Feral hogs are 

voracious, flexible, and opportunistic 

omnivores (USDA Wildlife Services 

2010, p. 6) and will persistently root in 

an area until the resources are depleted 

(USDA Wildlife Services 2010, p. 7). 

Rooting can be extremely destructive 

to habitat. Feral hogs cause long-term 

degradation of native ecosystems and 

plant communities and spread of 

invasive weeds through their rooting 

behavior (USDA Wildlife Services 2010, 

pp. 10–12, 19–20). In addition to 

influencing habitat, feral hogs consume 

a multitude of vertebrate and 

invertebrate species (USDA Wildlife 

Services 2010, p. 13). In 2010, USDA 

Wildlife Services (2010, p. 14) reported 

that 90 percent of the small mammal 

species listed under the Act were in 

areas of expanding feral hog populations 

and documented how feral hogs could 

influence small mammal populations 

through heavy and persistent predatory 

activities. In addition to direct 

predation, feral hogs can strip an area of 

food resources and are competitors with 

native species for food and water 

resources (USDA Wildlife Services 

2010, pp. 12–13). An active feral hog 

population control program in the 

White and Sacramento Mountains of 

New Mexico by the U.S. Department of 

Agriculture ended in 2018. It is 

anticipated that the feral hog population 

in the White Mountains, including 

within the range of the chipmunk, will 

exponentially increase as a result. 

Additionally, feral hogs are 

susceptible to at least 30 viral and 

bacteriological diseases, 20 of which can 

be transmitted from non-human animals 

to humans, and at least 37 parasites 

have been identified (USDA Wildlife 

Services 2010, p. 15). Among the many 

diseases, pathogens, and parasites that 

feral hogs carry, in New Mexico feral 

hogs have tested positive for swine 

brucellosis and pseudorabies. While the 

ability of feral hogs to transfer disease 

to wildlife is not well-studied, 

pseudorabies virus is highly contagious, 

and rodents are reported as being 

susceptible (USDA Wildlife Services 

2010, p. 15). The prevalence of 

antibodies of Y. pestis was reported for 

17 species of mammals from the western 

United States (Abbott and Rocke 2012, 

p. 26); of those, feral hogs had the 

highest prevalence rate at 74 percent. 

Although the sample size for this 

assessment was relatively low (18 out of 

23 were positive), these data 

demonstrate that feral hogs in both the 

Sacramento Mountains and White 

Mountains could contribute to disease 

dynamics in the small mammal 

communities in these mountain ranges 

(Abbott and Rocke 2012, p. 26). 

Impacts from feral hogs may include 

rooting, predation, spreading diseases 

and parasites, spreading invasive weed 

species, and competition with native 

species for water and food resources 

(Service 2024, p. 50). We lack specific 

data demonstrating overlap of feral hog 

occurrence with Pen ̃ asco least 

chipmunk occurrence; however, feral 

hogs are known to occur in the vicinity 

of Pen ̃ asco least chipmunk habitat or 

areas formerly known to be occupied by 

the Pen ̃ asco least chipmunk (Service 

2024, p. 50). 

Small Population Size and Lack of 

Connectivity 

Compared to large populations, small 

populations are more vulnerable to 

extirpation from environmental, 

demographic, and genetic stochasticity 

(random natural occurrences), and 

unforeseen natural or unnatural 

catastrophes (Shaffer 1981, p. 131). 

Small populations are less able to 

recover from losses caused by random 

environmental changes (Shaffer and 

Stein 2000, pp. 308–310), such as 

fluctuations in reproduction 

(demographic stochasticity), sweeping 

losses from disease events, or changes in 

the frequency or severity of wildfires 

(environmental stochasticity). 

Another type of random fluctuation, 

genetic stochasticity, results from: (1) 

changes in gene frequencies due to the 

founder effect, which is the loss of 

genetic variation that occurs when a 

new population is established by a 

small number of individuals (Hedrick 

2000, p. 226); (2) random fixation, or the 

complete loss of all but one allele at a 

locus (Hedrick 2000, p. 258); or (3) 

inbreeding depression, which is the loss 

of fitness or vigor due to mating among 

relatives (Hedrick 2000, p. 208). 

Additionally, small populations 

generally have an increased chance of 

genetic drift, or random changes in gene 

frequencies from generation to 

generation that can lead to a loss of 

variation, and inbreeding (Ellstrand and 

Elam 1993, p. 225). Allee effects, when 

there is a positive relationship between 

any component of individual fitness and 

either numbers or density of 

conspecifics (Stephens et al. 1999, p. 

186), may also occur when a population 

is in decline (Dennis 1989, pp. 481– 

538). In a declining population, an 

extinction threshold or ‘‘Allee 

threshold’’ (Berec et al. 2007, pp. 185– 

191) may be crossed, in which adults in 

the population either cease to breed or 

the population becomes so 

compromised that breeding does not 

contribute to population growth. Allee 

effects typically fall into three broad 

categories (Courchamp et al. 1999, pp. 

405–410): lack of facilitation (including 

low mate detection and loss of breeding 

cues), demographic stochasticity, and 

loss of heterozygosity. Environmental 

stochasticity amplifies Allee effects 

(Dennis 1989, pp. 481–538; Dennis 

2002, pp. 389–401). In Pen ̃ asco least 

chipmunks, random fixation and loss of 

heterozygosity have been observed 

(Sullivan 1985, pp. 431–433). The 

extinction risk for a subspecies 

represented by few small populations is 

magnified when those populations are 

isolated from one another, as is the case 


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for the White Mountains and the 

Sacramento Mountains (Service 2024, p. 

52). 

It is suspected that the White 

Mountains and Sacramento Mountains 

populations may have been physically 

separated over a long time period with 

little to no genetic interchange, based on 

morphometric differences in collected 

specimens (Sullivan 1985, pp. 424–425). 

However, connectivity could play an 

important role as it relates to the overall 

viability to the subspecies if it is found 

to be present in the Sacramento 

Mountains in the future. Connectivity 

between White Mountains and 

Sacramento Mountains populations 

would contribute to the number of 

reproductively active individuals in a 

population; mitigate the genetic, 

demographic, and environmental effects 

of small population size; and recolonize 

extirpated areas (Service 2024, pp. 50– 

51). Additionally, the fewer the 

populations a species or subspecies has, 

the greater the risk of extinction. The 

combination of a very small population 

in the White Mountains, a likely 

extirpated population in the Sacramento 

Mountains, and no population 

connectivity between the mountain 

ranges, synergistically interacting with 

the other stressors and potential 

stressors described above, greatly 

increases extinction risk for the Pen ̃ asco 

least chipmunk (Service 2024, p. 52). 

Synergistic Effects 

Many of the above-summarized risk 

factors may act synergistically or 

additively on the Pen ̃ asco least 

chipmunk. The combined impact of 

multiple stressors is likely more harmful 

than a single stressor acting alone. For 

the Pen ̃ asco least chipmunk, the 

compounding factor of having a small 

population size currently is likely to 

work in conjunction with each of the 

other stressors to limit the species’ 

ability to recover from catastrophes (e.g., 

disease outbreaks, wildfires, drought) or 

to expand the population when 

conditions are good (e.g., by capitalizing 

on new habitat patches or food 

resources). For a full explanation of the 

impact of stressors on the viability of 

the species, see chapter 4 of the SSA 

report (Service 2024, pp. 41–55). 

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. 

Conservation Efforts and Regulatory 

Mechanisms 

The White Mountains Wilderness 

Area within the Lincoln National Forest 

is currently closed to grazing and will 

remain closed for the recovery and 

protection of the Pen ̃ asco least 

chipmunk (Williams, 2020 pers. 

comm.). In 2018, the U.S. Forest Service 

announced a plan called the Ski Apache 

Vegetation Restoration Project which 

will restore habitat features that favor 

the Pen ̃ asco least chipmunk on the Ski 

Apache Resort (USDA 2018, entire). 

Work on the project began in 2019 and 

will continue in fiscal year 2024 

(Brennan, 2024 pers. comm.) (see 

Exclusions Based on Other Relevant 

Impacts, below). Additionally, we have 

begun collaborating with the Mescalero 

Apache Tribe to offer technical 

assistance by training their resource 

management staff on how to survey for 

the Pen ̃ asco least chipmunk and 

enhance habitat for the species on the 

Reservation. 

As part of the SSA, we also developed 

multiple future scenarios to capture the 

range of uncertainties regarding future 

threats and the projected responses by 

the Pen ̃ asco least chipmunk. Our 

scenarios included a continuing 

conditions scenario, which incorporated 

the current risk factors continuing on 

the same trajectory that they are on now. 

We also evaluated an optimistic 

scenario and a scenario with increased 

stressors. Because we determined that 

the current condition of the Pen ̃ asco 

least chipmunk is consistent with an 

endangered species (see Determination 

of Pen ̃ asco Least Chipmunk Status, 

below), we are not presenting the results 

of the future scenarios in this final rule. 

Please refer to the SSA report (version 

1.1; Service 2024, entire) for the full 

analysis of future scenarios. 

Subspecies Condition 

To analyze population-level 

resiliency, we identified and described 

the demographic and habitat conditions 

needed for sufficiently resilient 

populations of Pen ̃ asco least chipmunk 

(table 1). The demographic factors we 

analyzed include trap rate (surrogate for 

density), population trends, 

connectivity between populations, and 

number of subpopulations within 

populations. The habitat factors we 

analyzed include suitable habitat size to 

support population viability, habitat 

availability trends, and habitat 

condition. For each of these 

demographic and habitat factors, we 

characterized the condition (High, 

Moderate, Low, and Very Low/ 

Extirpated) of each factor for each 

population (table 1) to assess overall 

population resiliency. Where more data 

were available, we assigned scores (High 

= 1, Moderate = 0, Low = –1, and Very 

Low/Extirpated = –2) to each 

demographic and habitat factor and 

calculated an overall score for each 

population. We averaged all of the 

demographic and habitat condition 

category scores for each population to 

determine the overall resiliency score 

for that population (Service 2024, p. 65). 


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TABLE 1—POPULATION RESILIENCY CATEGORY DEFINITIONS FOR PEN ̃ASCO LEAST CHIPMUNK (WITH ASSIGNED SCORES) 

High (1) Moderate (0) Low (¥1) Very low/extirpated 

(¥2) 

• density or relative abundance is 

high.

• population is increasing over 

time.

• there is connectivity between the 

populations.

• the number of subpopulations is 

high, spatially dispersed, and 

able to withstand or recover 

from stochastic events.

• large, contiguous areas of increasing availability of suitable 

habitat with no detectable impacts from land use or management.

• density or relative abundance is 

moderate.

• population is stable over time ...

• populations are adjacent to 

each other, but unsuitable habitat precludes dispersal.

• multiple subpopulations, allowing for some ability to withstand 

or recover from stochastic 

events.

• areas of moderately sized habitat with some isolated habitat 

patches.

• land use or management occurs but does not significantly 

limit chipmunk resources.

• density or relative abundance is 

low.

• population is decreasing over 

time but still extant.

• populations are extremely isolated from one another.

• two subpopulations allow for 

some, but limited, ability to withstand or recover from 

stochastic events.

• habitat occurs as small isolated 

patches.

• land use or management reduces chipmunk resources.

• abundance decreases over 

time, such that population may 

be extirpated completely. 

• no connectivity with other populations exists. 

• if extant, no subpopulation 

structure occurs. 

• little to no suitable habitat is 

available. 

• if patches exist, they are small 

and isolated and will lead or 

have led to high probability of 

extirpation. 

• land use or management removes chipmunk resources. 

The current condition of each 

demographic and habitat factor and the 

overall condition of each population of 

the Pen ̃ asco least chipmunk is displayed 

in table 2. Historically, there were two 

known populations of Pen ̃ asco least 

chipmunk, the Sacramento Mountains 

population and the White Mountains 

population. Based on the demographic 

and habitat factors discussed in detail in 

the SSA (Service 2024, pp. 61–64), the 

Sacramento Mountains population is 

considered to be in Very Low/Extirpated 

overall condition. There have been no 

detections of Pen ̃ asco least chipmunk in 

the Sacramento Mountains since 1966, 

despite extensive survey effort, 

indicating that this population is likely 

extirpated. Even if it is still extant, it has 

no known connectivity with other 

populations and likely no 

subpopulation structure (Service 2024, 

p. 11). The Sacramento Mountains have 

little to no remaining suitable habitat, 

and land use and management have 

severely decreased the condition of the 

resources upon which Pen ̃ asco least 

chipmunks depend. 

For the White Mountains population, 

current habitat availability is moderate. 

Habitat has experienced a moderate 

change from historical conditions, and 

land use or management is not known 

to significantly reduce Pen ̃ asco least 

chipmunk resources. However, in terms 

of demographic factors, the White 

Mountains population has a low density 

and decreasing population trend. This 

population is the only remaining known 

population of the subspecies and has no 

known subpopulation structure. Given 

these Low and Very Low condition 

demographic factors, the White 

Mountains population is in Low overall 

condition. The current resiliency of 

Pen ̃ asco least chipmunk is Low to Very 

Low, with one population likely 

extirpated and the remaining population 

isolated with no subpopulation 

structure. 

Maintaining representation in the 

form of genetic or ecological diversity is 

important to preserve the capacity of the 

Pen ̃ asco least chipmunk to adapt to 

future environmental changes. Because 

one of the two populations of Pen ̃ asco 

least chipmunk is likely extirpated, and 

the extant population persists in 

extremely low numbers, genetic 

diversity is likely extremely low. 

Pen ̃ asco least chipmunks in the White 

Mountains showed the lowest levels of 

within-population genetic variation out 

of nine least chipmunk populations in 

New Mexico, Arizona, and Colorado 

(Sullivan 1985, pp. 431–433). In 

addition, the subspecies has a historical 

distribution in two very different 

ecological settings: one in a highelevation subalpine meadow zone in the 

White Mountains and one in a lower 

elevation ponderosa pine zone in the 

Sacramento Mountains. Because the 

Sacramento Mountains may no longer 

support the subspecies, the Pen ̃ asco 

least chipmunk has already lost 

ecological representation across its 

range. Low genetic variation and the 

loss of one ecological setting results in 

low representation for the Pen ̃ asco least 

chipmunk (Service 2024, p. 66). 

To be robust in the face of stochastic 

events, the Pen ̃ asco least chipmunk 

needs to have at least two sufficiently 

resilient populations (Service 2024, p. 

66). Historically, there were only two 

known populations, one each in the 

White and Sacramento Mountains. 

Generally, the more populations a 

species has, and the wider the 

distribution of those populations, the 

more redundancy the species will 

exhibit. Redundancy reduces the risk 

that a large portion of the species’ range 

will be negatively affected by a 

catastrophic natural or anthropogenic 

event (e.g., wildfire) at a given point in 

time. Species (or subspecies) that are 

well-distributed across a wide 

geographic range are less susceptible to 

extinction and more likely to be viable 

than taxa that are confined to small 

areas where stochastic events are likely 

to affect all of the individuals 

simultaneously (Carroll et al. 2010, 

entire). Since one of the two 

populations of Pen ̃ asco least chipmunk 

is likely extirpated, the Pen ̃ asco least 

chipmunk currently lacks any 

redundancy (Service 2024, p. 66). 


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TABLE 2—CURRENT RESILIENCY OF THE PEN ̃ASCO LEAST CHIPMUNK POPULATIONS

[With numeric scores for demographic and habitat factors and condition] 

Population 

Demographic factors Habitat factors 

Condition 

category 

Trap rate 

(number 

individuals/ 

trap hour) 

surrogate for 

density 

Population 

trends 

Population 

connectivity 

Subpopulations within 

populations 

Available 

suitable 

habitat to 

support 

population 

persistence 

Habitat availability trends 

Habitat 

condition 

with land 

use or management 

White Mountains ...................... Low ............... Low ............... Very Low ...... Very Low ...... Moderate ...... Moderate ...... Moderate ...... Low 

¥1.5 ............. ¥1 ................ ¥2 ................ ¥2 ................ 0 .................... 0 .................... 0 .................... ¥1 

Sacramento Mountains ............ Very Low ...... Very Low ...... Very Low ...... Very Low ...... Very Low ...... Very Low ...... Very Low ...... Very Low 

¥2 ................ ¥2 ................ ¥2 ................ ¥2 ................ ¥2 ................ ¥2 ................ ¥2 ................ ¥2 

See the SSA report for the complete 

current condition analysis for the 

Pen ̃ asco least chipmunk (Service 2024, 

pp. 56–66). 

Determination of Pen ̃ asco Least 

Chipmunk 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 

The range of the Pen ̃ asco least 

chipmunk once included the 

Sacramento and White Mountains in 

Lincoln and Otero Counties in New 

Mexico. The Pen ̃ asco least chipmunk is 

now found in only one isolated 

population within the White Mountains. 

The one remaining population has low 

resiliency, meaning that the population 

has a low probability of remaining 

extant and withstanding periodic or 

stochastic disturbances under its current 

condition. Representation is low, with 

the loss of one of two populations 

within its historical range. Species-level 

genetic and ecological diversity is likely 

extremely low, as one population 

(Sacramento Mountains) is likely 

extirpated and the remaining population 

(White Mountains) is small. 

Redundancy has declined dramatically 

because the Pen ̃ asco least chipmunk 

remains on the landscape in only one 

population. As such, the Pen ̃ asco least 

chipmunk is at greater risk of extinction 

due to a catastrophic event when 

compared to historical conditions. 

After evaluating threats to the species 

and assessing the cumulative effect of 

the threats under the section 4(a)(1) 

factors, we determined that the Pen ̃ asco 

least chipmunk faces threats that put it 

at risk of extinction, including 

vegetation shifts, wildfire, forest 

encroachment, recreation, development, 

land use, and land management (Factor 

A), nonnative species (Factors A and C), 

disease (Factor C), and small population 

size and lack of connectivity (Factor E). 

We found small population size to be 

the main threat to the species currently. 

The current population is small and 

isolated, making it vulnerable to 

catastrophic or stochastic events. The 

risk of species extinction from a disease 

outbreak, large wildfire, or extreme 

drought is high. The one remaining 

population is currently small and 

isolated, and we expect it to remain so 

in the future. Thus, after assessing the 

best available information, we 

determine that Pen ̃ asco least chipmunk 

is in danger of extinction throughout all 

of its range. We do not find that the 

species meets the Act’s definition of a 

threatened species because the species 

has already shown low levels in current 

resiliency, redundancy, and 

representation due to the threats 

discussed above resulting in the species 

being in danger of extinction throughout 

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 in the foreseeable 

future throughout all or a significant 

portion of its range. We have 

determined that the Pen ̃ asco least 

chipmunk 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 Pen ̃ asco least 

chipmunk 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 Pen ̃ asco least 

chipmunk meets the definition of an 

endangered species. Therefore, we are 

listing the Pen ̃ asco least chipmunk 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, foreign 

governments, 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 


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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 

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 range 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. 

Once this species is listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost-share 

grants for non-Federal 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 Pen ̃ asco 

least chipmunk. 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 Pen ̃ asco least chipmunk. 

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 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 Pen ̃ asco least chipmunk that may be 

subject to consultation procedures 

under section 7 are land management or 

other landscape-altering activities on 

Federal lands administered by 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 wildlife. The prohibitions 

of section 9(a)(1) of the Act, and the 

Service’s implementing regulations 

codified at 50 CFR 17.21, 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 wildlife: (1) import into, or 

export from, the United States; (2) take 

(which includes harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect) within the United States, 

within the territorial sea of the United 

States, or on the high seas; (3) possess, 

sell, deliver, carry, transport, or ship, by 

any means whatsoever, any such 

wildlife that has been taken illegally; (4) 

deliver, receive, carry, transport, or ship 

in interstate or foreign commerce, by 

any means whatsoever and in the course 

of commercial activity; or (5) sell or 

offer for sale in interstate or foreign 

commerce. Certain exceptions to these 

prohibitions apply to employees or 

agents of the Service, the National 

Marine Fisheries Service, other Federal 

land management agencies, and State 

conservation agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered wildlife under 

certain circumstances. Regulations 

governing permits for endangered 

wildlife are codified at 50 CFR 17.22, 

and general Service permitting 

regulations are codified at 50 CFR part 

13. With regard to endangered wildlife, 

a permit may be issued for scientific 

purposes, for enhancing the propagation 

or survival of the species, or for take 

incidental to otherwise lawful activities. 

The statute also contains certain 

exemptions from the prohibitions, 


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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 

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 discussed 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) Winter activities at the ski resort; 

(2) Hiking on established trails; and 

(3) Routine road maintenance. 

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 

considered likely to result in violation 

of section 9. 

To the extent currently known, the 

following is a list of examples of 

activities that will be considered likely 

to result in violation of section 9 of the 

Act in addition to what is already clear 

from the descriptions of the prohibitions 

found at 50 CFR 17.21: 

(1) Unauthorized handling or collection of 

the species; 

(2) Creation and modification of trails; 

(3) Ski resort maintenance during summer 

months; and 

(4) Organized mountain bike races. 

This list is intended to be illustrative 

and not exhaustive; additional activities 

that will 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 or site-specific 

information), the Service may conclude 

that one or more activities identified 

here will not be considered likely to 

result in violation of section 9. 

Questions regarding whether specific 

activities would constitute 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). 

This critical habitat designation was 

proposed when the regulations defining 

‘‘habitat’’ (85 FR 81411; December 16, 

2020) and governing the section 4(b)(2) 

exclusion process for the Service (85 FR 

82376; December 18, 2020) were in 

place and in effect. However, those two 

regulations have been rescinded (87 FR 

37757, June 24, 2022; and 87 FR 43433, 

July 21, 2022) and no longer apply to 

any designations of critical habitat. 

Therefore, for this final rule designating 

critical habitat for the Pen ̃ asco least 

chipmunk, we apply the regulations at 

50 CFR 424.19 and the Policy Regarding 

Implementation of Section 4(b)(2) of the 

Endangered Species Act (hereafter, the 

‘‘2016 Policy’’; 81 FR 7226, February 11, 

2016). 

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). 


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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 compiled in 

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 

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 scientific 

data available at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts calls 

for a different outcome. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

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

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate as critical habitat from 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

regulations at 50 CFR 424.02 define 

‘‘physical or biological features essential 

to the conservation of the species’’ as 

the features that occur in specific areas 

and that are essential to support the lifehistory needs of the species, including, 

but not limited to, water characteristics, 

soil type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. 

For example, physical features 

essential to the conservation of the 

species might include gravel of a 

particular size required for spawning, 

alkaline soil for seed germination, 

protective cover for migration, or 

susceptibility to flooding or fire that 

maintains necessary early-successional 

habitat characteristics. Biological 

features might include prey species, 

forage grasses, specific kinds or ages of 

trees for roosting or nesting, symbiotic 

fungi, or absence of a particular level of 

nonnative species consistent with 

conservation needs of the listed species. 

The features may also be combinations 

of habitat characteristics and may 

encompass the relationship between 

characteristics or the necessary amount 

of a characteristic essential to support 

the life history of the species. 

In considering whether features are 

essential to the conservation of the 

species, we may consider an appropriate 

quality, quantity, and spatial and 

temporal arrangement of habitat 

characteristics in the context of the lifehistory needs, condition, and status of 

the species. These characteristics 

include, but are not limited to, space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

We derive the specific physical or 

biological features essential to the 

conservation of the Pen ̃ asco least 

chipmunk from studies of the species’ 

habitat, ecology, and life history. 

Pen ̃ asco least chipmunk habitat is 

characterized as high-elevation 

subalpine habitat in the White 

Mountains, composed of Thurber’s 

fescue (Festuca thurberi) meadows, 

where rock outcrops or talus are present 

(Frey and Hays 2017, p. 34). Subalpine 

Thurber’s fescue meadow/grassland 

community occurs within openings in 

high-elevation spruce-fir forest and 

above tree line in the glacial cirque. 

These Thurber’s fescue grasslands 

contain tall bunchgrasses, including 

Thurber’s fescue, sedges, flowering 

forbs, and shrubs (Frey and Hays 2017, 

pp. 2–3). Widely spaced conifers, such 

as Engelmann spruce or ponderosa pine, 

intermixed with bunchgrasses and forbs, 

and some rock outcrops and talus, 

provide cover from predators. The trees 

also provide shade that contributes to 

moisture levels in the understory 

habitat. Rock outcrops provide 

observation points for predator vigilance 

and are often associated with burrows 

for nesting or hibernation (Bihr and 

Smith 1998, p. 359). The elevation of 

subalpine habitat in the White 

Mountains ranges from 2,500 to 3,597 

meters (8,200 to 11,800 feet). Forage for 

Pen ̃ asco least chipmunks consists of the 

seeds and flowers of forbs, particularly 

species of Asteraceae (Frey and Hays 

2017, p. 34). The diet also includes 

flowers and fruits of gooseberry (Ribes 

spp.) and wild strawberry (Fragaria 

spp.), pinyon (Pinus edulis) nuts, 

Gambel oak (Quercus gambelii) acorns, 


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insects, and other items (Sullivan 1993, 

p. 3). 

The Pen ̃ asco least chipmunk is likely 

extirpated from the Sacramento 

Mountains, and the habitat no longer 

supports the species; therefore, we did 

not include the Sacramento Mountains 

in our critical habitat designation or 

analysis of physical or biological 

features. 

Summary of Essential Physical or 

Biological Features 

We derive the specific physical or 

biological features essential to the 

conservation of Pen ̃ asco least chipmunk 

from studies of the species’ habitat, 

ecology, and life history as described 

below. Additional information can be 

found in the SSA report (version 1.1; 

Service 2024, entire) available at http:// 

www.regulations.gov under Docket No. 

FWS–R2–ES–2020–0042. We have 

determined that the following physical 

or biological features are essential to the 

conservation of the Pen ̃ asco least 

chipmunk: 

(1) Areas within the White Mountains that: 

(a) Are between elevations of 2,500–3,597 

meters (m) (8,200–11,800 feet (ft)); 

(b) Contain rock outcrops or talus; 

(c) Are subalpine Thurber’s fescue 

meadow/grassland communities found 

within openings of spruce-fir forest, above 

treeline in the glacial cirque, containing tall 

bunchgrasses, including Thurber’s fescue, 

sedges, flowering forbs, and shrubs; and 

(d) Contain widely spaced large-diameter 

conifers, such as Engelmann spruce or 

ponderosa pine, intermixed in low densities 

with the meadow/grassland vegetation. 

(2) Forage, including species of Asteraceae, 

flowers and fruits of gooseberry (Ribes spp.), 

wild strawberry (Fragaria spp.), pinyon 

(Pinus edulis) nuts, Gambel oak (Quercus 

gambelii) acorns, and insects. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

features essential to the conservation of 

the Pen ̃ asco least chipmunk may require 

special management considerations or 

protections to reduce the following 

threats: (1) forest encroachment due to 

altered fire regime; (2) recreation, 

development, land use, and land 

management; and (3) destruction of 

habitat by nonnative species (feral 

hogs). 

Management activities that could 

ameliorate these threats include, but are 

not limited to, prescribed fire and forest 

management to maintain the open 

subalpine meadows with native 

vegetation; continued closure of the 

encompassing U.S. Forest Service 

allotment to grazing; and feral hog 

management. 

In summary, we find that the 

occupied areas we are proposing to 

designate as critical habitat contain the 

physical or biological features that are 

essential to the conservation of the 

species and that may require special 

management considerations or 

protection. Special management 

considerations or protection may be 

required in designated critical habitat in 

order to eliminate, or to reduce to 

negligible levels, the threats affecting 

the physical and biological features of 

the unit. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b), we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 

area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. 

We are designating critical habitat in 

areas within the geographical area 

occupied by the species at the time of 

listing. We also are designating specific 

areas outside the geographical area 

occupied by the species because we 

have determined those areas are 

essential for the conservation of the 

species. We conclude that the 

unoccupied area is essential for the 

conservation of the species and that it 

constitutes habitat for the species 

because it contains one or more of the 

physical or biological features essential 

to the conservation of the species (see 

Areas Outside the Geographic Area 

Occupied at the Time of Listing, below). 

The current distribution of the 

Pen ̃ asco least chipmunk is much 

reduced from its historical range. We 

anticipate that recovery will require 

continued protection of the existing 

population and its habitat, and 

potentially reintroduction of Pen ̃ asco 

least chipmunk into other areas, 

ensuring there are adequate numbers 

multiple locations. This strategy will 

help to ensure that catastrophic events, 

such as the effects of fire, cannot 

simultaneously affect all known 

populations. Rangewide recovery 

considerations, such as maintaining 

existing genetic diversity and striving 

for connectivity within portions of the 

species’ current range to allow adequate 

movement to ensure genetic diversity, 

were considered in formulating this 

critical habitat. 

Sources of data for this critical habitat 

designation include multiple reports 

and discussions with species experts, 

including the New Mexico Department 

of Game and Fish (see SSA report). We 

have also reviewed available 

information that pertains to the habitat 

requirements of this species. Sources of 

information on habitat requirements 

include studies conducted at occupied 

sites and published in peer-reviewed 

articles and agency reports, and data 

collected during monitoring efforts. 

Areas Occupied at the Time of Listing 

The critical habitat designation does 

not include all areas known to have 

been occupied by the Pen ̃ asco least 

chipmunk historically; instead, it 

focuses on the currently occupied area 

within the historical range that retains 

the necessary physical or biological 

features that will allow for the 

maintenance and expansion of the 

existing population. We are not 

designating any critical habitat in the 

Sacramento Mountains because we 

conclude that the area no longer has the 

appropriate habitat to support the 

species. 

In summary, for areas within the 

geographical area occupied by the 

species at the time of listing, we 

delineated critical habitat unit 

boundaries using the following criteria: 

First, we compiled all known Pen ̃ asco 

least chipmunk observations (i.e., 

captures) in the White Mountains from 

1931 through 2018, mapped their 

locations, and eliminated duplicate 

records. This process provided a 

bounded estimate of the subspecies’ 

known range. 

Using existing U.S. Forest Service 

vegetation mapping for the Lincoln 

National Forest, we identified and 

exported all vegetation classes that 

coincided with the known observations. 

The vegetation classes included (1) 

mixed grass-forb and (2) Gambel oak, 

which are consistent with physical 

habitat descriptions for the subspecies 

in the White Mountains. Vegetation 

characterized by meadow/grassland 

community within openings of sprucefir forest are one of the physical or 

biological features essential to the 

conservation of the Pen ̃ asco least 

chipmunk. 

Next, we determined the elevation 

interval in which the White Mountains 

population has been observed. We used 

that interval to further define the extent 


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of the grass-forb and Gambel oak 

vegetation classes. Although the upper 

limit of the occupied interval did not 

extend to the highest points within the 

critical habitat units, we assumed that 

the Pen ̃ asco least chipmunk is capable 

of occupying these higher elevations as 

the difference (roughly 100 meters or 

330 feet) is not substantial. Therefore, 

we extended the interval to include the 

highest peaks within each unit. This 

process resulted in a basic model of 

potential habitat. 

Finally, we refined the output of step 

3 (above) through aerial photo 

interpretation in order to correct for the 

coarse resolution imparted by the 

vegetation mapping. Essentially, this 

process allows the model to be more 

accurate and applicable at a finer scale. 

The critical habitat area was mapped 

using ArcMap version 10.6.1 

(Environmental Systems Research 

Institute, Inc. 2018), a Geographic 

Information Systems (GIS) computer 

application. We identified two critical 

habitat units in the White Mountains 

known to be occupied by Pen ̃ asco least 

chipmunks as of 2019. For one of these 

units, we are finalizing a designation 

that is roughly half the size of the unit 

that was described in the proposed rule 

because the other half is being excluded 

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

Consideration of Impacts Under Section 

4(b)(2) of the Act, below). We identified 

a third critical habitat unit between 

these two occupied units that has the 

physical and biological features 

essential for the conservation of the 

Pen ̃ asco least chipmunk but has not yet 

been surveyed for occupancy. 

Areas Outside the Geographic Area 

Occupied at the Time of Listing 

We evaluated whether any 

unoccupied areas are essential for the 

conservation of the species. Because 

there is only one remaining population, 

which has low resiliency and no 

redundancy, making it vulnerable to 

catastrophic or stochastic events and 

further compounding the risks of small 

population sizes, we are designating 

unoccupied areas that are essential for 

the conservation of the Pen ̃ asco least 

chipmunk. The risk of subspecies 

extinction from a disease outbreak, large 

wildfire, or extreme drought is high. A 

low-resiliency single population 

provides no redundancy for the species, 

and a single catastrophic event could 

cause species extinction. 

Based on our evaluation, we are 

designating as critical habitat one unit 

situated between the two known 

occupied units that is currently 

considered unoccupied because of a 

lack of survey data. A small portion of 

this area was surveyed in 2018 and no 

Pen ̃ asco least chipmunks were detected, 

but a more thorough survey effort would 

be needed to determine if the area is 

truly unoccupied. We have determined 

that it is essential for the conservation 

of the species as it provides important 

connectivity between the two occupied 

units and could support population 

expansion into this area, if not 

populated already. Limited functional 

habitat exists within the White 

Mountains, and connectivity between 

known locations of Pen ̃ asco least 

chipmunk is essential for the 

conservation of the subspecies because 

it provides more of the habitat upon 

which the subspecies depends for 

feeding, sheltering and reproducing. 

This unit provides a link between the 

two known occupied units. The unit has 

all of the physical or biological features 

essential for the conservation of the 

Pen ̃ asco least chipmunk: It is in the 

White Mountains, at elevations of 

2,500–3,597 meters (8,200–11,800 feet), 

with rock outcrop, and appropriate 

vegetation characteristics. Therefore, we 

conclude that this area is habitat for the 

subspecies. 

Small, isolated populations of animals 

with restricted movement and low 

genetic diversity are more likely to 

become extirpated than larger 

populations with greater movement 

between subpopulations within them 

and greater genetic diversity. Due to the 

small population sizes found within the 

two occupied units, either or both could 

become extirpated from local 

catastrophic events or the deleterious 

effects of genetic bottlenecking resulting 

from inbreeding that reduces the 

viability of a population, if they had no 

connectivity. The unoccupied unit in 

between these two known occupied 

units has never been surveyed for 

Pen ̃ asco least chipmunk, due to its 

remoteness and difficulty to access. It 

does, however, maintain all the physical 

or biological features of the occupied 

areas. We analyzed this area using 

remote GIS vegetation and landscape 

feature data from the U.S. Forest Service 

and the U.S. Department of 

Agriculture’s National Agricultural 

Imagery Program. 

It is possible the Pen ̃ asco least 

chipmunk is present in the unoccupied 

unit; however, with no confirmed 

records, the unit is being treated as 

unoccupied for purposes of this 

designation. 

General Information on the Maps of the 

Critical Habitat Designation 

When determining critical habitat 

boundaries, we made every effort to 

avoid including developed areas such as 

lands covered by buildings, pavement, 

and other structures because such lands 

lack physical or biological features 

necessary for the Pen ̃ asco least 

chipmunk. The scale of the maps we 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this rule have been excluded by 

text in the rule and are not designated 

as critical habitat. Therefore, a Federal 

action involving these lands will not 

trigger section 7 consultation with 

respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action will affect the 

physical or biological features in the 

adjacent critical habitat. 

The critical habitat designation is 

defined by the map or maps, as 

modified by any accompanying 

regulatory text, presented at the end of 

this document under Regulation 

Promulgation. We include moredetailed information on the boundaries 

of the critical habitat designation in the 

preamble of this document. The 

coordinates or plot points or both on 

which each map is based are available 

to the public on https://

www.regulations.gov at Docket No. 

FWS–R2–ES–2020–0042. 

Final Critical Habitat Designation 

We are designating three units as 

critical habitat for the Pen ̃ asco least 

chipmunk. The critical habitat areas we 

describe below constitute our current 

best assessment of areas that meet the 

definition of critical habitat for the 

Pen ̃ asco least chipmunk. The three areas 

we designate as critical habitat are: (1) 

Nogal Peak, (2) Crest Trail, and (3) 

Sierra Blanca. Table 3 shows the critical 

habitat units and the approximate area 

of each unit. 


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TABLE 3—CRITICAL HABITAT UNITS FOR THE PEN ̃ASCO LEAST CHIPMUNK

Critical habitat unit 

Occupied at 

the time of 

listing 

Land 

ownership 

Area of unit in hectares 

(acres) 

Area of overlap with Mexican 

spotted owl designated critical 

habitat 

Overlap with Lincoln National 

Forest Wilderness area 

Unit 1. Nogal Peak Yes .................. Federal ............ 393 (972) ................................ 100% ......................................

393 hectares 

(972 acres) 

100% 

393 hectares 

(972 acres) 

Unit 2. Crest Trail No .................... Federal ............ 910 (2,249) ............................. 89.5% .....................................

814 hectares 

(2,012 acres) 

100% 

910 hectares 

(2,249 acres) 

Unit 3. Sierra Blanca Yes .................. Federal ............ 471 (1,165) ............................. 100% ......................................

471 hectares 

(1,165 acres) 

49.3% 

232 hectares 

(574 acres) 

Total ................................. ......................... ......................... 1,774 (4,386).

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for the 

Pen ̃ asco least chipmunk, below. 

Unit 1: Nogal Peak, New Mexico 

Unit 1 consists of approximately 393 

hectares (972 acres) of subalpine habitat 

within the Lincoln National Forest 

Wilderness Area and is occupied. This 

unit is within the critical habitat 

designation in Lincoln County, New 

Mexico, for the Mexican spotted owl, 

which is listed as a threatened species 

under the Act. Elevation ranges 

approximately 2,570–3,031 meters 

(8,432–9,944 feet) above mean sea level. 

Mean elevation in Unit 1 is 2,772 meters 

(9,094 feet) with a standard deviation of 

70 meters (230 feet). Approximately 79 

percent of Unit 1 is classified as grassforb mix or Gambel oak. Unit 1 contains 

all the physical or biological features 

that are essential to the conservation of 

the Pen ̃ asco least chipmunk. This unit 

is federally owned by the U.S. Forest 

Service; it is 100 percent within the 

Lincoln National Forest Wilderness 

Area. Threats to the physical or 

biological features within the unit 

include forest encroachment into the 

open meadows, grazing, and destruction 

of habitat by nonnative species (feral 

hogs). Special management 

considerations that may reduce these 

threats include prescribed fire and forest 

management to maintain the open 

subalpine meadows with native 

vegetation, continued closure of the 

encompassing U.S. Forest Service 

allotment to grazing, and feral hog 

management. 

Unit 2: Crest Trail, New Mexico 

Unit 2 consists of approximately 910 

hectares (2,249 acres) of subalpine 

habitat. Although it is considered 

unoccupied, we have determined that it 

is essential for the conservation of the 

species because it provides important 

connectivity between Unit 1 and Unit 3, 

both of which are known to be occupied 

by the species. The unit has all of the 

physical or biological features essential 

for the conservation of the Pen ̃ asco least 

chipmunk: It is in the White Mountains, 

at elevations of 2,500–3,597 meters 

(8,200–11,800 feet), with rock outcrop, 

and appropriate vegetation 

characteristics. Therefore, we conclude 

that this area is habitat for the 

subspecies. 

Due to the location between Units 1 

and 3 and the overall suitability of the 

habitat, it is possible the Pen ̃ asco least 

chipmunk is present in the unoccupied 

unit; however, with no confirmed 

records, the unit is being treated as 

unoccupied for purposes of this 

designation. Surveys of the southern 

portion of this unit in 2018 did not 

detect Pen ̃ asco least chipmunks, but an 

additional 8 kilometers (5 miles) of 

habitat remain unsurveyed. 

Approximately 90 percent of this unit is 

within the critical habitat designation 

for the Mexican spotted owl in Lincoln 

County, New Mexico. This unit is 

federally owned by the U.S. Forest 

Service and is 100 percent within the 

Lincoln National Forest Wilderness 

Area. Elevation ranges approximately 

2,621–3,292 meters (8,599–10,800 feet) 

above mean sea level. Mean elevation in 

Unit 2 is 2,876 meters (9,436 feet) with 

a standard deviation of 139 meters (456 

feet). Approximately 44 percent of Unit 

2 is classified as grass-forb mix or 

Gambel oak. 

Unit 3: Sierra Blanca, New Mexico 

Unit 3 includes approximately 471 

hectares (1,165 acres) of subalpine 

habitat, contains the physical or 

biological features that are essential to 

the conservation of the species, and is 

known to be occupied. This unit is 

federally owned by the U.S. Forest 

Service; approximately 30 percent 

overlaps with the Lincoln National 

Forest Wilderness Area. One hundred 

percent of the unit is also Mexican 

spotted owl critical habitat in Lincoln 

County, New Mexico. Elevation ranges 

approximately 2,763–3,518 meters 

(9,065–11,542 feet) above mean sea 

level. Mean elevation in Unit 3 is 3,167 

meters (10,390 feet) with a standard 

deviation of 131 meters (428 feet). 

Approximately 34 percent of Unit 3 is 

classified as grass-forb mix or Gambel 

oak. Unit 3 contains all the physical or 

biological features that are essential to 

the conservation of the species. Threats 

to the unit include forest encroachment 

into the open meadows, recreation, 

development, land use, and land 

management, grazing, and destruction of 

habitat by nonnative species (feral 

hogs). Special management 

considerations that may address these 

threats include prescribed fire and forest 

management to maintain the open 

subalpine meadows with native 

vegetation, continued closure of the 

encompassing U.S. Forest Service 

allotment to grazing, and feral hog 

management. 

In the proposed rule, Unit 3 

comprised 1,357 hectares (3,353 acres), 

an area which included land owned by 

the U.S. Forest Service and the 

Mescalero Apache Tribe. We have 

excluded from the final designation the 

portion owned by the Mescalero Apache 

Tribe and an adjacent parcel of U.S. 

Forest Service land operated by the 

Tribe, approximately 886 hectares 

(2,189 acres) (see Consideration of 

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

Act, below). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they authorize, 

fund, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. 

Destruction or adverse modification 

means a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat as a whole for the 

conservation of a listed species (50 CFR 

402.02). 


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Compliance with the requirements of 

section 7(a)(2) of the Act is documented 

through our issuance of the following: 

(1) A concurrence letter for Federal actions 

that may affect, but are not likely to adversely 

affect, listed species or critical habitat; or 

(2) A biological opinion for Federal actions 

that may affect, and are likely to adversely 

affect, listed species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during formal consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of the 

action, 

(2) Can be implemented consistent with 

the scope of the Federal agency’s legal 

authority and jurisdiction, 

(3) Are economically and technologically 

feasible, and 

(4) Would, in the Service Director’s 

opinion, avoid the likelihood of jeopardizing 

the continued existence of the listed species 

or avoid the likelihood of destroying or 

adversely modifying critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 set forth 

requirements for Federal agencies to 

reinitiate consultation. Reinitiation of 

consultation is required and shall be 

requested by the Federal agency, where 

discretionary Federal involvement or 

control over the action has been 

retained or is authorized by law and: (1) 

If the amount or extent of taking 

specified in the incidental take 

statement is exceeded; (2) if new 

information reveals effects of the action 

that may affect listed species or critical 

habitat in a manner or to an extent not 

previously considered; (3) if the 

identified action is subsequently 

modified in a manner that causes an 

effect to the listed species or critical 

habitat that was not considered in the 

biological opinion or written 

concurrence; or (4) if a new species is 

listed or critical habitat designated that 

may be affected by the identified action. 

As provided in 50 CFR 402.16, the 

requirement to reinitiate consultations 

for new species listings or critical 

habitat designation does not apply to 

certain agency actions (e.g., land 

management plans issued by the Bureau 

of Land Management in certain 

circumstances). 

Destruction or Adverse Modification of 

Critical Habitat 

The key factor related to the 

destruction or adverse modification 

determination is whether 

implementation of the proposed Federal 

action directly or indirectly alters the 

designated critical habitat in a way that 

appreciably diminishes the value of the 

critical habitat as a whole for the 

conservation of the listed species. As 

discussed above, the role of critical 

habitat is to support physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. 

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

our Federal Register documents ‘‘shall, 

to the maximum extent practicable, also 

include a brief description and 

evaluation of those activities (whether 

public or private) which, in the opinion 

of the Secretary, if undertaken may 

adversely modify [critical] habitat, or 

may be affected by such designation.’’ 

Activities that may be affected by 

designation of critical habitat for the 

Pen ̃ asco least chipmunk include those 

that may affect the physical or biological 

features of the Pen ̃ asco least chipmunk’s 

critical habitat (see Physical or 

Biological Features Essential to the 

Conservation of the Species). 

Exemptions 

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

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that the 

Secretary shall not designate as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense (DoD), or 

designated for its use, that are subject to 

an integrated natural resources 

management plan (INRMP) prepared 

under section 101 of the Sikes Act 

Improvement Act of 1997 (16 U.S.C. 

670a), if the Secretary determines in 

writing that such plan provides a benefit 

to the species for which critical habitat 

is proposed for designation. There are 

no DoD lands with a completed INRMP 

within the final critical habitat 

designation. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

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

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

critical habitat based on economic 

impacts, impacts on national security, 

or any other relevant impacts. Exclusion 

decisions are governed by the 

regulations at 50 CFR 424.19 and the 

Policy Regarding Implementation of 

Section 4(b)(2) of the Endangered 

Species Act (hereafter, the ‘‘2016 

Policy’’; 81 FR 7226, February 11, 

2016)—both of which were developed 

jointly with the National Marine 

Fisheries Service (NMFS). We also refer 

to a 2008 Department of the Interior 

Solicitor’s opinion entitled ‘‘The 

Secretary’s Authority to Exclude Areas 

from a Critical Habitat Designation 

under Section 4(b)(2) of the Endangered 

Species Act’’ (M–37016). We explain 

each decision to exclude areas, as well 

as decisions not to exclude, to 

demonstrate that the decision is 

reasonable. 

The Secretary may exclude any 

particular area if she determines that the 

benefits of such exclusion outweigh the 

benefits of including such area as part 

of the critical habitat, unless she 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making the determination to 

exclude a particular area, the statute on 

its face, as well as the legislative history, 

are clear that the Secretary has broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. 

We describe below the process that 

we undertook for deciding whether to 

exclude any areas—taking into 

consideration each category of impacts 

and our analysis of the relevant impacts. 

Exclusions Based on Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. In order to consider economic 

impacts, we prepared an incremental 

effects memorandum (IEM) and 

screening analysis which, together with 

our narrative and interpretation of 

effects, we consider our economic 

analysis of the critical habitat 

designation and related factors (Service 

2019, entire). The analysis, dated May 5, 

2019, was made available for public 

review from September 28, 2021, 

through November 29, 2021 (86 FR 

53583). The economic analysis 

addressed probable economic impacts of 

critical habitat designation for the 


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Pen ̃ asco least chipmunk. Following the 

close of the comment period, we 

reviewed and evaluated all information 

submitted during the comment period 

that may pertain to our consideration of 

the probable incremental economic 

impacts of this critical habitat 

designation. Additional information 

relevant to the probable incremental 

economic impacts of critical habitat 

designation for the Pen ̃ asco least 

chipmunk is summarized below and 

available in the screening analysis for 

the Pen ̃ asco least chipmunk (IEc 2019, 

entire), available at https://

www.regulations.gov. 

The full description of the findings 

from the economic analysis is outlined 

in the proposed rule (86 FR 53583; 

September 28, 2021). The estimated 

incremental costs of the total proposed 

critical habitat designation for Pen ̃ asco 

least chipmunk was found to be less 

than $5,000 per year. Therefore, the 

annual administrative burden is very 

unlikely to reach $200 million, which is 

the threshold for a significant regulatory 

action under Executive Order (E.O.) 

14094. As discussed above, we 

considered the economic impacts of the 

critical habitat designation, and the 

Secretary is not exercising her 

discretion to exclude any areas from this 

designation of critical habitat for the 

Pen ̃ asco least chipmunk based on 

economic impacts. 

Exclusions Based on Impacts on 

National Security and Homeland 

Security 

In preparing this rule, we determined 

that there are no lands within the 

designated critical habitat for the 

Pen ̃ asco least chipmunk that are owned 

or managed by the DoD or Department 

of Homeland Security, and, therefore, 

we anticipate no impact on national 

security or homeland security. We did 

not receive any additional information 

during the public comment period for 

the proposed designation regarding 

impacts of the designation on national 

security or homeland security that 

would support excluding any specific 

areas from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 424.19, as well as 

the 2016 Policy. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security as 

discussed above. To identify other 

relevant impacts that may affect the 

exclusion analysis, we consider a 

number of factors, including whether 

there are approved and permitted 

conservation plans covering the species 

in the area such as safe harbor 

agreements (SHAs), candidate 

conservation agreements with 

assurances (CCAAs), ‘‘conservation 

benefit agreements’’ or ‘‘conservation 

agreements’’ (CBAs) (CBAs are a new 

type of agreement replacing SHAs and 

CCAAs in use after April 2024 (89 FR 

26070; April 12, 2024)) or HCPs, or 

whether there are non-permitted 

conservation agreements and 

partnerships that would be encouraged 

by designation of, or exclusion from, 

critical habitat. In addition, we look at 

whether Tribal conservation plans or 

partnerships, Tribal resources, or 

government-to-government 

relationships of the United States with 

Tribal entities may be affected by the 

designation. We also consider any State, 

local, social, or other impacts that might 

occur because of the designation. 

When identifying the benefits of 

inclusion for an area, we consider the 

additional regulatory benefits that area 

would receive due to the protection 

from destruction or adverse 

modification as a result of actions with 

a Federal nexus, the educational 

benefits of mapping essential habitat for 

recovery of the listed species, and any 

benefits that may result from a 

designation due to State or Federal laws 

that may apply to critical habitat. In the 

case of Pen ̃ asco least chipmunk, the 

benefits of critical habitat include 

public awareness of the presence of 

Pen ̃ asco least chipmunk and the 

importance of habitat protection, and, 

where a Federal nexus exists, increased 

habitat protection for Pen ̃ asco least 

chipmunk due to protection from 

destruction or adverse modification of 

critical habitat. 

When identifying the benefits of 

exclusion, we consider, among other 

things, whether exclusion of a specific 

area is likely to result in conservation, 

or in the continuation, strengthening, or 

encouragement of partnerships. 

Additionally, continued 

implementation of an ongoing 

management plan that provides equal to 

or more conservation than a critical 

habitat designation would reduce the 

benefits of including that specific area 

in the critical habitat designation. 

We evaluate the existence of a 

conservation plan when considering the 

benefits of inclusion. We consider a 

variety of factors, including, but not 

limited to, whether the plan is finalized; 

how it provides for the conservation of 

the essential physical or biological 

features; whether there is a reasonable 

expectation that the conservation 

management strategies and actions 

contained in a management plan will be 

implemented into the future; whether 

the conservation strategies in the plan 

are likely to be effective; and whether 

the plan contains a monitoring program 

or adaptive management to ensure that 

the conservation measures are effective 

and can be adapted in the future in 

response to new information. 

After identifying the benefits of 

inclusion and the benefits of exclusion, 

we carefully weigh the two sides to 

evaluate whether the benefits of 

exclusion outweigh those of inclusion. 

If our analysis indicates that the benefits 

of exclusion outweigh the benefits of 

inclusion, we then determine whether 

exclusion would result in extinction of 

the species. If exclusion of an area from 

critical habitat will result in extinction, 

we will not exclude it from the 

designation. 

Based on the information provided by 

entities seeking exclusion, as well as 

additional public comments we 

received, and the best scientific data 

available, we evaluated whether certain 

lands in the critical habitat (Unit 1– 

Nogal Peak, Unit 2–Crest Trail, and Unit 

3–Sierra Blanca) are appropriate for 

exclusion from the final designation 

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

analysis indicates that the benefits of 

excluding lands from the final 

designation outweigh the benefits of 

designating those lands as critical 

habitat, then the Secretary may exercise 

her discretion to exclude the lands from 

the final designation. In the paragraphs 

below, we provide our analysis of the 

areas being excluded under section 

4(b)(2) of the Act. 

Federal Lands 

Federal land managers have unique 

obligations under the Act. First, 

Congress declared its policy that all 

Federal departments and agencies shall 

seek to conserve endangered species 

and threatened species and shall utilize 

their authorities in furtherance of the 

purposes of this Act (section 2(c)(1)). 

Second, all Federal agencies have 

responsibilities under section 7 of the 

Act to carry out programs for the 

conservation of listed species and to 

ensure their actions are not likely to 

jeopardize the continued existence of 

listed species or result in the 

destruction or adverse modification of 

critical habitat. Therefore, in general we 

will focus our exclusions on nonFederal lands. However, our regulations 

at 50 CFR 424.19 and the 2016 Policy 

provide for the consideration of the 

exclusion of Federal lands in particular 

instances. 


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In this particular situation, we have 

determined that the benefits of 

exclusion for portions of the Sierra 

Blanca Unit outweigh the benefits of 

inclusion. In our proposed rule (86 FR 

53583), the Sierra Blanca Unit is 

described as being located in Lincoln 

and Otero Counties in the White 

Mountains of southern New Mexico. 

The area proposed for designation as 

critical habitat includes subalpine 

habitat located within the Lincoln 

National Forest, the Lincoln National 

Forest Wilderness Area, and Mescalero 

Apache Tribal Reservation land. A 

portion of the Sierra Blanca Unit known 

as the Ski Apache Resort is managed by 

the U.S. Forest Service as part of the 

Lincoln National Forest and operated 

under a special use permit by the 

Mescalero Apache Tribe. The Tribe 

manages the Ski Apache Resort and ski 

lifts, and the U.S. Forest Service 

maintains ownership and is responsible 

for managing the land for forest health, 

in collaboration with the Mescalero 

Apache Tribe. The Mescalero Apache 

Tribe has agreed to protect the habitat 

of any federally listed species and call 

for the immediate abatement of any 

otherwise authorized activity on, or use 

of, the land operated under a special use 

permit that causes or threatens to cause 

harm to any natural resource, including 

species and their habitat (U.S. Forest 

Service 2014, pp. 10–13). 

Proposed Unit 3 (Sierra Blanca)—Ski 

Apache Resort 

Benefits of Inclusion 

The benefits of including lands in 

critical habitat can be regulatory, 

educational, or to aid in recovery of 

species as generally discussed in 

Consideration of Impacts Under Section 

4(b)(2) of the Act above. The following 

is our assessment of the benefits for 

inclusion of the portion of the Sierra 

Blanca Unit in Lincoln County known 

as the Ski Apache Resort, which is 

managed by the U.S. Forest Service as 

part of the Lincoln National Forest and 

operated under a special use permit by 

the Mescalero Apache Tribe. This 

permit has contributed to development 

of an informal partnership between the 

Tribe and the U.S. Forest Service to 

conserve and manage habitat on the Ski 

Apache Resort (Williams, 2024 pers. 

comm.). 

The designation of critical habitat can 

help to educate the public regarding the 

potential conservation value of an area 

and can focus efforts by clearly 

delineating areas of high conservation 

value for the Pen ̃ asco least chipmunk. 

Specifically, designation of critical 

habitat on the Ski Apache Resort could 

serve to further educate the public 

regarding the specific needs that the 

chipmunk requires on the same lands 

that the public enjoys and uses. 

However, the chipmunk habitat in the 

White Mountains exists entirely on U.S. 

Forest Service and Tribal land, and both 

entities are aware of the high 

conservation value of the habitat to the 

species. The U.S. Forest Service has 

included the chipmunk on their list of 

sensitive species for more than a decade 

and incorporates management of their 

lands in consideration of this and other 

sensitive species. Little additional 

educational benefit would be gained 

from designation of critical habitat on 

the Ski Apache Resort as a result of 

informing the public of the presence of 

the chipmunk and the high conservation 

value of this area. Therefore, we find 

that the benefits of inclusion of the Ski 

Apache Resort as part of the Sierra 

Blanca Unit are reduced as a result of 

these past and ongoing actions. 

The designation of critical habitat can 

aid in recovery of the species by raising 

awareness to landowners and managers 

by calling attention to recovery actions 

that could be implemented. In the case 

of the Pen ̃ asco least chipmunk, 

catastrophic wildfire is one of the 

biggest threats to the subspecies because 

the chipmunk’s range has been reduced 

to a single population and wildfire has 

the potential to cause extinction of the 

subspecies. This threat was 

demonstrated in the recent South Fork 

Fire, which burned 2.3 hectares (5.7 

acres) of the Sierra Blanca Unit managed 

by the U.S. Forest Service before it was 

contained. The U.S. Forest Service has 

an agreement with the Mescalero 

Apache Tribe to address habitat and 

conservation needs for the Pen ̃ asco least 

chipmunk, with particular emphasis on 

reducing the threat of wildfire. 

In 2018, the U.S. Forest Service 

published a decision to reduce wildland 

fuels and promote forest health on the 

Ski Apache Resort and a portion of the 

Mescalero Apache Reservation by 

removing, piling, and burning hazard 

trees; restoring and protecting new trees; 

and reseeding disturbed areas with 

beneficial plants (USDA 2018, entire). 

The plan is formally named the Ski 

Apache Vegetation Restoration Project. 

In addition to reducing the threat of 

catastrophic wildfire, the plan calls for 

surveys to be conducted to locate 

Pen ̃ asco least chipmunks and to identify 

and retain habitat characteristics that 

favor them (e.g., large logs for cover) in 

the project area. The plan also calls for 

restoration of habitat features that match 

the physical or biological features 

essential to the conservation of the 

species, including reseeding of open 

slopes with subalpine meadow/ 

grassland species such as Thurber’s 

fescue, sedges, and flowering forbs. 

Work on the restoration project began in 

2019 but was then delayed by COVID– 

19 impacts to agency operations, staff 

turnover, and lack of funding. It will be 

reinitiated in fiscal year 2024 using 

funds from the Infrastructure 

Investment and Jobs Act (also known as 

the Bipartisan Infrastructure Law, Pub. 

L. 117–58; November 15, 2021) 

(Brennan, 2024 pers. comm.). The 

decision demonstrates the commitment 

of the U.S. Forest Service and Mescalero 

Apache Tribe to decreasing the threat of 

wildfire potential on the Ski Apache 

Resort for the benefit of the Pen ̃ asco 

least chipmunk. The partnership 

between the Tribe and the U.S. Forest 

Service and their commitment to this 

plan and the provisions thereof reduces 

the benefits of inclusion of the Ski 

Apache Resort as part of the Sierra 

Blanca Unit in a designation of critical 

habitat. 

The principal benefit of any 

designated critical habitat is that 

activities in and affecting such habitat 

require consultation under section 7 of 

the Act. Such consultation would 

ensure that protection is provided to 

avoid destruction or adverse 

modification of critical habitat. 

However, we conclude that few 

regulatory benefits to the Pen ̃ asco least 

chipmunk would be gained from a 

designation of critical habitat on the Ski 

Apache Resort. Through the 

consultation process for specific 

projects, we would determine if there 

are any anticipated effects to listed 

species or potential destruction or 

adverse modification to critical habitat. 

We find it is unlikely that many, if 

any, consultations would occur to assess 

the potential for projects to destroy or 

adversely modify Pen ̃ asco least 

chipmunk critical habitat on the Ski 

Apache Resort because, despite listed 

species occurring there (e.g., Mexican 

spotted owl), the U.S. Forest Service has 

yet to have cause to consult with the 

U.S. Fish and Wildlife Service on any 

project in the area for the past 30 years. 

Because the Sierra Blanca Unit is 

occupied by the Pen ̃ asco least 

chipmunk, should a project arise 

requiring consultation in the future 

(such as wildfire reduction as part of the 

Ski Apache Vegetation Restoration 

Project discussed above), absent critical 

habitat, an assessment of the anticipated 

affects to the Pen ̃ asco least chipmunk 

would still be conducted under the 

jeopardy standard. 

In our evaluation of the probable 

economic impact of a critical habitat 

designation, we identified the effects 


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expected to occur solely due to the 

designation of critical habitat and not 

from the protections that are in place 

due to the species being listed under the 

Act. Our assessment concluded that 

there are no project modifications that 

would be recommended to avoid 

adverse alteration of the physical and 

biological features of the critical habitat 

that would not also be recommended to 

avoid adverse effects to the subspecies. 

In the event of an adverse modification 

determination, we expect that 

reasonable and prudent alternatives to 

avoid jeopardy to the subspecies would 

also avoid adverse modification of the 

critical habitat. Therefore, the only 

substantive difference between an 

analysis of jeopardy and destruction or 

adverse modification is the minor 

additional cost of the consultation for 

destruction or adverse modification. 

Accordingly, we find the benefits of 

inclusion for this unit based on the 

consultation requirement for a 

designation of critical habitat are 

minimal for the Pen ̃ asco least chipmunk 

on the Ski Apache Resort. 

We expect few to no additional 

benefits to the recovery of the Pen ̃ asco 

least chipmunk as a result of the 

designation of this portion of the Sierra 

Blanca Unit. The habitat areas are 

outlined and the biological features are 

readily defined in the species’ recovery 

plan. Overall, with minimal regulatory, 

educational, and recovery benefits 

likely, we foresee limited benefits to 

further recovery of the species as a 

result of the designation of critical 

habitat on the Ski Apache Resort. 

Benefits of Exclusion 

The benefits of excluding the Ski 

Apache Resort from designated critical 

habitat are more significant. They 

include the following: (1) the 

maintenance of effective working 

relationships to promote the 

conservation of the Pen ̃ asco least 

chipmunk and its habitat; (2) the 

allowance for continued meaningful 

collaboration and cooperation in 

working groups; and (3) the provision of 

conservation benefits to listed species 

and their habitats that might not occur 

if the Ski Apache Resort were 

designated as critical habitat. 

The Mescalero Apache Tribe, as 

special use permit holder of the land, 

has requested that we exclude the Ski 

Apache Resort from the critical habitat 

designation and allow them to manage 

and protect the natural resources in the 

area without requiring additional 

permits or consultation with the U.S. 

Fish and Wildlife Service (Mescalero 

Apache Tribe 2023, entire). As 

discussed above, the partnership 

between the Tribe and the U.S. Forest 

Service to conserve and manage habitat 

on the Ski Apache Resort has led to the 

development of a plan that considers 

the impact of actions on the Pen ̃ asco 

least chipmunk and reduces the threat 

of wildfire on the landscape (USDA 

2018, p. 15). This agreement 

demonstrates an effective partnership to 

promote the conservation of the Pen ̃ asco 

least chipmunk and its habitat. 

The designation of Pen ̃ asco least 

chipmunk critical habitat on the Ski 

Apache Resort would be expected to 

adversely impact the Service’s working 

relationship with the Mescalero Apache 

Tribe. The Tribe has indicated that the 

designation of critical habitat for the 

Pen ̃ asco least chipmunk on the Ski 

Apache Resort, an area over which the 

Tribe has requested ownership (Maue 

2017, entire), would be viewed as an 

unwarranted and unwanted intrusion 

into Tribal natural resource programs. In 

discussions regarding other listed 

species, we were informed that critical 

habitat would be viewed as an 

infringement on the Tribe’s sovereign 

abilities to manage natural resources in 

accordance with their own policies, 

customs, and laws. We have found that 

the Tribe would prefer to work with us 

on a government-to-government basis. 

The perceived future restrictions 

(whether realized or not) of a critical 

habitat designation could have a 

damaging effect to coordination efforts, 

possibly preventing actions that might 

maintain, improve, or restore habitat for 

the chipmunk and other species. For 

these reasons, we believe that our 

working relationship with the Mescalero 

Apache Tribe would be better 

maintained if the Ski Apache Resort is 

excluded from the designation of critical 

habitat for the Pen ̃ asco least chipmunk. 

We view this as a substantial benefit of 

exclusion. 

A cooperative working relationship 

between the Service and Mescalero 

Apache Tribe has benefited the 

conservation and recovery of other 

listed species and other natural 

resources. For example, the Service’s 

relationship with Mescalero Apache 

resulted in the successful prosecution of 

a Mexican spotted owl take case under 

section 9 of the Act, related to an 

arsonist in 2002 (Service 2002). 

Additionally, the development of the 

Mexican Spotted Owl Management Plan 

for the Mescalero Apache Reservation 

was a noteworthy accomplishment that 

has benefited the conservation of the 

owl. Recovery of the Pen ̃ asco least 

chipmunk will be greatly enhanced by 

a mutually respectful partnership. We 

have plans with the U.S. Forest Service 

and Mescalero Apache Tribe members 

to research use of the Ski Apache Resort 

by Pen ̃ asco least chipmunks. In the 

future, we plan to continue to provide 

training or guidance as needed to 

support recovery of the subspecies in 

this area. We conclude that our working 

relationship with the Tribe on a 

government-to-government basis has 

been extremely beneficial in 

implementing natural resource 

conservation for other species, and that 

maintaining a productive relationship 

would be best fostered by exclusion of 

critical habitat for the Pen ̃ asco least 

chipmunk on the Ski Apache Resort. 

Lastly, we anticipate future 

management/conservation plans to 

include conservation efforts for other 

listed species and their habitat. We 

believe that other Tribes would be 

willing to work cooperatively with us to 

benefit other listed species, but only if 

they view the relationship as mutually 

beneficial. Consequently, the 

development of future voluntary 

management actions for other listed 

species will likely be premised upon 

whether the U.S. Forest Service land, on 

which the Mescalero Apache Tribe 

operates the Ski Apache Resort under a 

special use permit, is excluded from 

critical habitat for the Pen ̃ asco least 

chipmunk. Thus, a benefit of excluding 

the Ski Apache Resort would be the 

encouragement of future conservation 

efforts that would benefit other listed 

species. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We found there to be few benefits of 

including the Ski Apache Resort (the 

portion of the proposed Sierra Blanca 

Unit managed by the U.S. Forest Service 

and operated by the Mescalero Apache 

Tribe under a special use permit) as part 

of the critical habitat designation for the 

Pen ̃ asco least chipmunk, including the 

incremental benefits gained through the 

regulatory requirement to consult under 

section 7 and consideration of the need 

to avoid destruction or adverse 

modification of critical habitat, minimal 

additional educational opportunities, 

and minimal gains for species recovery 

through the reduction of the wildfire 

threat. The benefits of inclusion are 

outweighed by the more substantial 

benefits of excluding the portion of the 

Sierra Blanca Unit regarding (1) the 

advancement and support of our Federal 

Indian Trust obligations and the 

maintenance of effective collaboration 

and cooperation to promote the 

conservation of Pen ̃ asco least 

chipmunk; (2) the maintenance of 

effective working relationships and an 

existing partnership between the Tribe 

and U.S. Forest Service to promote the 


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conservation of the Pen ̃ asco least 

chipmunk and its habitat; (3) allowance 

for continued meaningful collaboration 

and cooperation with the Tribe to 

implement natural resource 

conservation; and (4) provision of future 

conservation efforts that would benefit 

other listed species and their habitats. In 

conclusion, we have found the benefits 

of including the Ski Apache Resort as 

part of the critical habitat designation of 

the Sierra Blanca Unit are outweighed 

by the benefits of excluding this 

particular area. 

Exclusion Will Not Result in Extinction 

of the Species 

We have determined that the 

exclusion of the Ski Apache Resort 

portion of the Sierra Blanca Unit that 

includes 305 hectares (754 acres) from 

the final designation of critical habitat 

will not result in the extinction of the 

Pen ̃ asco least chipmunk. The species 

occupies two other areas, Nogal Peak 

Unit and the northern portion of the 

Sierra Blanca Unit, both of which are 

managed by the U.S. Forest Service. The 

Crest Trail Unit connects the northern 

portion of the Sierra Blanca Unit and 

the Nogal Peak Unit. Occupancy of the 

Crest Trail Unit is not known but the 

area is considered essential to allow 

movement between the Nogal Peak and 

Sierra Blanca Units. As described above, 

all of the area we are excluding from 

critical habitat is considered to be 

occupied by the species, and 

consultations will still occur under 

section 7 of the Act if there is a Federal 

nexus, even in the absence of the area’s 

designation as critical habitat. 

Application of the jeopardy standard of 

section 7 of the Act also provides 

assurances that the species will not go 

extinct in the absence of the designation 

of this particular area. 

In summary, the benefits of including 

the Ski Apache Resort portion of the 

Sierra Blanca Unit in the critical habitat 

designation for the Pen ̃ asco least 

chipmunk are few. The benefits of 

excluding this area from designated 

critical habitat are greater and include 

maintaining an important partnership. 

We find that the benefits of excluding 

this area from critical habitat 

designation outweigh the benefits of 

including this area and that exclusion 

will not result in the extinction of the 

species. 

Tribal Lands 

Several Executive Orders, Secretary’s 

Orders, and policies concern working 

with Tribes. These guidance documents 

generally confirm our trust 

responsibilities to Tribes, recognize that 

Tribes have sovereign authority to 

control Tribal lands, emphasize the 

importance of developing partnerships 

with Tribal governments, and direct the 

Service to consult with Tribes on a 

government-to-government basis. 

A joint Secretary’s Order that applies 

to both the Service and the National 

Marine Fisheries Service (NMFS)— 

Secretary’s Order 3206, American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act (June 5, 1997) 

(S.O. 3206)—is the most comprehensive 

of the various guidance documents 

related to Tribal relationships and Act 

implementation, and it provides the 

most detail directly relevant to the 

designation of critical habitat. In 

addition to the general direction 

discussed above, the appendix to S.O. 

3206 explicitly recognizes the right of 

Tribes to participate fully in any listing 

process that may affect Tribal rights or 

Tribal trust resources; this includes the 

designation of critical habitat. Section 

3(B)(4) of the appendix requires us to 

consult with affected Tribes ‘‘when 

considering the designation of critical 

habitat in an area that may impact 

Tribal trust resources, Tribally-owned 

fee lands, or the exercise of Tribal 

rights.’’ That provision also instructs the 

Services to avoid including Tribal lands 

within a critical habitat designation 

unless the area is essential to conserve 

a listed species, and it requires the 

Services to ‘‘evaluate and document the 

extent to which the conservation needs 

of the listed species can be achieved by 

limiting the designation to other lands.’’ 

Our implementing regulations at 50 

CFR 424.19 and the 2016 Policy are 

consistent with S.O. 3206. When we 

undertake a discretionary exclusion 

analysis, in accordance with S.O. 3206, 

we consult with any Tribe whose Tribal 

trust resources, tribally owned fee lands, 

or Tribal rights may be affected by 

including any particular areas in the 

designation, and we evaluate the extent 

to which the conservation needs of the 

species can be achieved by limiting the 

designation to other areas. When we 

undertake a discretionary section 4(b)(2) 

exclusion analysis, we always consider 

exclusion of Tribal lands, and give great 

weight to Tribal concerns in analyzing 

the benefits of exclusion. 

However, S.O. 3206 does not override 

the Act’s statutory requirement of 

designation of critical habitat. As stated 

above, we must consult with any Tribe 

when a designation of critical habitat 

may affect Tribal lands or resources. 

The Act requires us to identify areas 

that meet the definition of ‘‘critical 

habitat’’ (i.e., areas occupied at the time 

of listing that contain the essential 

physical or biological features that may 

require special management or 

protection and unoccupied areas that 

are essential to the conservation of a 

species), without regard to land 

ownership. While S.O. 3206 provides 

important direction, it expressly states 

that it does not modify the Secretaries’ 

statutory authority under the Act or 

other statutes. 

Proposed Unit 3 (Sierra Blanca)— 

Mescalero Apache Reservation 

Benefits of Inclusion 

The benefits of including lands in 

critical habitat can be regulatory, 

educational, or to aid in recovery of 

species as generally discussed in 

Consideration of Impacts Under Section 

4(b)(2) of the Act above. The following 

is our assessment of the benefits for 

inclusion of the portion of the Sierra 

Blanca Unit in Otero County owned by 

the Mescalero Apache Tribe. 

The principal benefit of any 

designated critical habitat is that 

activities in and affecting such habitat 

require consultation under section 7 of 

the Act. Such consultation would 

ensure that protection is provided to 

avoid destruction or adverse 

modification of critical habitat. 

However, we conclude that few 

regulatory benefits to the Pen ̃ asco least 

chipmunk would be gained from a 

designation of critical habitat on the 

Mescalero Apache Reservation. The 

Tribe is not required to consult with the 

Service except in cases where there is a 

Federal nexus due to involvement of a 

Federal agency (e.g., Bureau of Indian 

Affairs funding a project on Mescalero 

Apache land). Through the consultation 

process, we would determine if there 

are any anticipated effects to listed 

species or potential destruction or 

adverse modification of designated 

critical habitat. 

We find it is unlikely that many, if 

any, consultations would occur to assess 

the potential for adverse modification to 

the Pen ̃ asco least chipmunk critical 

habitat on the Mescalero Apache 

Reservation because, despite several 

listed species historically occurring 

there (e.g., Mexican spotted owl, New 

Mexico meadow jumping mouse), the 

Tribe has yet to have cause to consult 

with the Service on any project in the 

area for the past 30 years. Because this 

area is occupied by the species, should 

a project arise requiring consultation in 

the future, an assessment of the 

anticipated effects to the Pen ̃ asco least 

chipmunk would still be conducted 

under the jeopardy standard. 

In our evaluation of the probable 

economic impact of a critical habitat 

designation, we identified the effects 


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expected to occur solely due to the 

designation of critical habitat and not 

from the protections that are in place 

due to the species being listed under the 

Act. Our assessment concluded that 

there are no project modifications that 

would be recommended to avoid 

adverse alteration of the physical and 

biological features of the critical habitat 

that would not also be recommended to 

avoid adverse effects to the subspecies. 

In the event of an adverse modification 

determination, we expect that 

reasonable and prudent alternatives to 

avoid jeopardy to the subspecies would 

also avoid adverse modification of the 

critical habitat. Therefore, the only 

substantive difference between an 

analysis of jeopardy and destruction or 

adverse modification is the minor 

additional cost of the consultation for 

destruction or adverse modification. 

Accordingly, we find the benefits of 

inclusion for this unit based on the 

consultation requirement for a 

designation of critical habitat are 

minimal for the Pen ̃ asco least chipmunk 

on the Mescalero Apache Reservation. 

The designation of critical habitat can 

help to educate the public regarding 

potential conservation value of an area 

and can focus efforts by clearly 

delineating areas of high conservation 

value for the Pen ̃ asco least chipmunk. 

However, the chipmunk habitat in the 

White Mountains exists entirely on U.S. 

Forest Service and Tribal land. There is 

little additional educational benefit to 

be gained from designation of critical 

habitat on the Mescalero Apache 

Reservation as a result of informing the 

public of the high conservation value of 

this area. The Mescalero Apache Tribe 

is currently working with the Service to 

address habitat and conservation needs 

for listed species. We anticipate that the 

Tribe will continue to actively 

participate in working groups, providing 

for the timely exchange of management 

information. The educational benefits 

important for the long-term survival and 

conservation for the other listed species 

(i.e., Mexican spotted owl) are being 

realized. Therefore, the educational 

benefits of including the Mescalero 

Apache Reservation in critical habitat 

are minimal. 

We expect few to no additional 

benefits to the recovery of the Pen ̃ asco 

least chipmunk as a result of the 

designation of this portion of the Sierra 

Blanca Unit. The habitat areas are 

outlined, and the biological features are 

readily defined in the species’ recovery 

plan. With limited regulatory and 

educational benefits likely, we foresee 

limited benefit to further recovery of the 

species as a result of a designation of 

critical habitat on the Mescalero Apache 

Tribe Reservation. 

Benefits of Exclusion 

The benefits of excluding Mescalero 

Apache Tribe land from designated 

critical habitat are more significant. 

They include the following: (1) the 

advancement and support of our Federal 

Indian Trust obligations and the 

maintenance of effective collaboration 

and cooperation to promote the 

conservation of the Pen ̃ asco least 

chipmunk; (2) the maintenance of 

effective working relationships and an 

existing partnership between the Tribe 

and U.S. Forest Service to promote the 

conservation of the Pen ̃ asco least 

chipmunk and its habitat; (3) allowance 

for continued meaningful collaboration 

and cooperation with the Tribe to 

implement natural resource 

conservation; and (4) provision of future 

conservation efforts that would benefit 

other listed species and their habitats. 

Through the years, we have met with 

the Mescalero Apache Tribe to discuss 

management and conservation of 

federally listed species. Our goal has 

been to establish an effective working 

relationship. As part of our relationship, 

we have provided assistance to develop 

measures to conserve listed species and 

their habitats on Mescalero Apache 

lands. These measures are contained 

within the Tribal management/ 

conservation plans we have developed 

together, such as the Mexican Spotted 

Owl Management Plan for the Mescalero 

Apache Reservation (Mescalero Apache 

2000). These proactive actions were 

conducted in accordance with 

Secretary’s Order 3206 (described 

above). We believe that the Mescalero 

Apache Tribe should be the 

governmental entity to manage and 

promote the conservation of the Pen ̃ asco 

least chipmunk on their lands, and they 

have taken the initial steps to do so, 

requesting our assistance to conduct 

trainings on how to survey for the 

Pen ̃ asco least chipmunk and discuss 

habitat enhancements needed on the 

Reservation. We recognize and endorse 

their fundamental right to provide for 

Tribal resource management activities, 

including those relating to the species’ 

habitat. 

The designation of Pen ̃ asco least 

chipmunk critical habitat on the 

Reservation would adversely impact our 

working relationship with the Mescalero 

Apache Tribe. In discussions regarding 

other listed species, we were informed 

that critical habitat would be viewed as 

an infringement on the Tribe’s sovereign 

abilities to manage natural resources in 

accordance with their own policies, 

customs, and laws. The Tribe has 

indicated that the designation of critical 

habitat for the Pen ̃ asco least chipmunk 

on the Mescalero Apache Reservation 

would amount to additional Federal 

regulation of a sovereign Nation’s land 

and would be viewed as an unwarranted 

and unwanted intrusion into Tribal 

natural resource programs. We have 

found that the Tribe would prefer to 

work with us on a government-togovernment basis. For these reasons, we 

find that our working relationship with 

the Mescalero Apache Tribe would be 

better maintained if the Reservation is 

excluded from the designation of critical 

habitat for the Pen ̃ asco least chipmunk. 

We view this as a substantial benefit of 

exclusion. 

A cooperative working relationship 

between the Service and Mescalero 

Apache Tribe has benefited in the 

conservation and recovery of listed 

species and other natural resources. For 

example, the Service’s relationship with 

Mescalero Apache resulted in the 

successful prosecution of a Mexican 

spotted owl take case under section 9 of 

the Act, related to an arsonist in 2002 

(Service 2002). Additionally, the 

development of the Mexican Spotted 

Owl Management Plan for the Mescalero 

Apache Reservation was a noteworthy 

accomplishment that has benefited the 

conservation of the owl. Recovery of the 

Pen ̃ asco least chipmunk will be greatly 

enhanced with a mutually respectful 

partnership. As mentioned above, the 

Mescalero Apache have requested our 

assistance to conduct trainings on how 

to survey for the Pen ̃ asco least 

chipmunk and discuss habitat 

enhancements needed on the 

Reservation. In the future, we plan to 

continue to provide training or guidance 

as needed to support recovery of the 

subspecies in this area. We conclude 

that our working relationships with the 

Tribe on a government-to-government 

basis has been beneficial in 

implementing natural resource 

conservation for other species, and that 

maintaining a productive relationship 

would be best fostered by exclusion of 

critical habitat for the Pen ̃ asco least 

chipmunk on the Mescalero Apache 

Reservation. 

Lastly, we anticipate future 

management/conservation plans to 

include conservation efforts for other 

listed species and their habitat. We 

believe that many Tribes would be 

willing to work cooperatively with us to 

benefit other listed species, but only if 

they view the relationship as mutually 

beneficial. Consequently, the 

development of future voluntary 

management actions for other listed 

species will likely be premised upon 

whether these Tribal lands are excluded 


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from critical habitat for the Pen ̃ asco 

least chipmunk. Thus, a benefit of 

excluding these lands would be 

encouraging future conservation efforts 

that would benefit other listed species. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

In weighing the benefits of inclusion 

and the benefits of exclusion of the 

portion of the Sierra Blanca Unit owned 

and managed by the Mescalero Apache 

Tribe, we find that the benefits of 

exclusion of this land outweigh the 

benefits of inclusion of this land in the 

critical habitat designation. This is 

based on the fact that there are very 

limited benefits to inclusion and 

substantial benefits from supporting our 

partnerships by excluding this portion 

of the unit. We found there to be few 

benefits of including the area owned by 

the Mescalero Apache Tribe as part of 

the critical habitat designation for the 

Pen ̃ asco least chipmunk, including the 

incremental benefits gained through the 

regulatory requirement to consult under 

section 7 and consideration of the need 

to avoid destruction or adverse 

modification of critical habitat, minimal 

additional educational opportunities, 

and minimal gains for species recovery 

through the reduction of the wildfire 

threat. In addition to supporting 

Secretary’s Order 3206 and Mescalero 

Apache Tribe sovereignty, we have 

determined that excluding a portion of 

the Sierra Blanca Unit that overlaps 

with Reservation land will provide for 

maintenance of a positive relationship 

with the Tribe in Otero County. This 

relationship is fundamental for 

implementing recovery actions for the 

Pen ̃ asco least chipmunk and outweighs 

the limited benefits that may occur from 

the designation of critical habitat there. 

Recovery of the Pen ̃ asco least chipmunk 

is best served by the exclusion of the 

portion of the Sierra Blanca Unit owned 

by the Mescalero Apache Tribe. In 

conclusion, we have found the benefits 

of including the portion of the Sierra 

Blanca Unit owned and managed by the 

Mescalero Apache Tribe are outweighed 

by the benefits of exclusion of this 

particular area. 

Exclusion Will Not Result in Extinction 

of the Species 

We have determined that the 

exclusion of the portion of the Sierra 

Blanca Unit that includes 581 hectares 

(1,435 acres) from the final designation 

of critical habitat will not result in the 

extinction of Pen ̃ asco least chipmunk. 

The species occupies two other areas, 

Nogal Peak Unit and the northern 

portion of the Sierra Blanca Unit, both 

of which are managed by the U.S. Forest 

Service. The Crest Trail Unit connects 

the northern portion of the Sierra Blanca 

Unit and the Nogal Peak Unit. 

Occupancy of the Crest Trail Unit is not 

known but the area is considered 

essential to allow movement between 

the known populations in the Nogal 

Peak and Sierra Blanca units. As 

described above, all of the area we are 

excluding from critical habitat is 

considered to be occupied by the 

species, and consultations will still 

occur under section 7 of the Act if there 

is a Federal nexus, even in the absence 

of the designation of this area as critical 

habitat. Application of the jeopardy 

standard of section 7 of the Act also 

provides assurances that the species 

will not go extinct in the absence of this 

designation. 

In summary, the benefits of including 

the portion of the Sierra Blanca Unit in 

the critical habitat designation for the 

Pen ̃ asco least chipmunk are few. The 

benefits of excluding this area from 

designated critical habitat are greater 

and include maintaining an important 

partnership. We find that the benefits of 

excluding this area from critical habitat 

designation outweigh the benefits of 

including this area and that exclusion 

will not result in the extinction of the 

species. 

Summary of Exclusions 

As discussed above, based on the 

information provided by entities seeking 

exclusion, as well as any additional 

public comments received, we 

evaluated whether certain lands in the 

proposed critical habitat were 

appropriate for exclusion from this final 

designation pursuant to section 4(b)(2) 

of the Act. We are excluding the 

following areas from the critical habitat 

designation for the Pen ̃ asco least 

chipmunk: Proposed Unit 3–Sierra 

Blanca, Mescalero Apache Tribe 

Reservation and Ski Apache Resort. 

Table 4 shows the sizes of the areas 

excluded from the critical habitat 

designation. While the area proposed for 

critical habitat was in Lincoln and Otero 

Counties, the area in Otero County is 

now being excluded. The critical habitat 

in this final designation is entirely 

within Lincoln County. 

TABLE 4—AREAS EXCLUDED FROM CRITICAL HABITAT DESIGNATION BY CRITICAL HABITAT UNIT

Unit Specific area 

Areas meeting the 

definition of 

critical habitat, 

in hectares 

(acres) 

Areas excluded 

from 

critical habitat, 

in hectares 

(acres) 

3. Sierra Blanca ...................................................... Mescalero Apache Reservation ............................. 581 (1,435) 581 (1,435) 

Ski Apache Resort ................................................. 305 (754) 305 (754) 

Total area excluded ......................................... ................................................................................. .............................. 886 (2,189) 

Required Determinations 

Regulatory Planning and Review 

(Executive Orders 12866, 13563, and 

14094) 

Executive Order (E.O.) 14094 amends 

and reaffirms the principles of E.O. 

12866 and E.O. 13563 and states that 

regulatory analysis should facilitate 

agency efforts to develop regulations 

that serve the public interest, advance 

statutory objectives, and are consistent 

with E.O. 12866 and E.O. 13563, and the 

Presidential Memorandum of January 

20, 2021 (Modernizing Regulatory 

Review). Regulatory analysis, as 

practicable and appropriate, shall 

recognize distributive impacts and 

equity, to the extent permitted by law. 

E.O. 13563 emphasizes further that 

regulations must be based on the best 

available science and that the 

rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this final rule in a manner consistent 

with these requirements. 

Executive Order 12866, as reaffirmed 

by E.O. 13563 and amended by E.O. 

14094, provides that the Office of 

Information and Regulatory Affairs 

(OIRA) in the Office of Management and 

Budget will review all significant rules. 

OIRA has determined that this rule is 

not significant. 


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Federal Register / Vol. 89, No. 237 / Tuesday, December 10, 2024 / Rules and Regulations 99681 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

Under the RFA, as amended, as 

understood in light of recent court 

decisions, Federal agencies are required 

to evaluate the potential incremental 

impacts of rulemaking on those entities 

directly regulated by the rulemaking 

itself; in other words, the RFA does not 

require agencies to evaluate the 

potential impacts to indirectly regulated 

entities. The regulatory mechanism 

through which critical habitat 

protections are realized is section 7 of 

the Act, which requires Federal 

agencies, in consultation with the 

Service, to ensure that any action 

authorized, funded, or carried out by the 

agency is not likely to destroy or 

adversely modify critical habitat. 

Therefore, under section 7, only Federal 

action agencies are directly subject to 

the specific regulatory requirement 

(avoiding destruction and adverse 

modification) imposed by critical 

habitat designation. Consequently, it is 

our position that only Federal action 

agencies will be directly regulated by 

this designation. The RFA does not 

require evaluations of the potential 

impacts to entities not directly 

regulated. Moreover, Federal agencies 

are not small entities. Therefore, 

because no small entities will be 

directly regulated by this rulemaking, 

we certify that this critical habitat 

designation will not have a significant 

economic impact on a substantial 

number of small entities. 

During the development of this final 

rule, we reviewed and evaluated all 

information submitted during the 

comment period on the September 28, 

2021, proposed rule (86 FR 53583) that 

may pertain to our consideration of the 

probable incremental economic impacts 

of this critical habitat designation. 

Based on this information, we affirm our 

certification that this critical habitat 

designation will not have a significant 

economic impact on a substantial 

number of small entities, and a 

regulatory flexibility analysis is not 

required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare statements of energy effects 

‘‘to the extent permitted by law’’ when 

undertaking actions identified as 

significant energy actions (66 FR 28355; 

May 22, 2001). E.O. 13211 defines a 

‘‘significant energy action’’ as an action 

that (i) is a significant regulatory action 

under E.O. 12866 or any successor 

order; and (ii) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. This rule 

is not a significant regulatory action 

under E.O. 12866 or E.O. 14094 (88 FR 

21879; April 11, 2023). Therefore, this 

action is not a significant energy action, 

and there is no requirement to prepare 

a statement of energy effects for this 

action. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following finding: 

(1) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

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

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions are not 

likely to destroy or adversely modify 

critical habitat under section 7. While 

non-Federal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 


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critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. By definition, Federal 

agencies are not considered small 

entities, although the activities they 

fund or permit may be proposed or 

carried out by small entities. 

Consequently, we do not believe that 

the proposed critical habitat designation 

would significantly or uniquely affect 

small government entities. Therefore, a 

small government agency plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for Pen ̃ asco 

least chipmunk in a takings 

implications assessment. The Act does 

not authorize the Services to regulate 

private actions on private lands or 

confiscate private property as a result of 

critical habitat designation. Designation 

of critical habitat does not affect land 

ownership, or establish any closures, or 

restrictions on use of or access to the 

designated areas. Furthermore, the 

designation of critical habitat does not 

affect landowner actions that do not 

require Federal funding or permits, nor 

does it preclude development of habitat 

conservation programs or issuance of 

incidental take permits to permit actions 

that do require Federal funding or 

permits to go forward. However, Federal 

agencies are prohibited from carrying 

out, funding, or authorizing actions that 

would destroy or adversely modify 

critical habitat. A takings implications 

assessment has been completed and 

concludes that this designation of 

critical habitat for the Pen ̃ asco least 

chipmunk does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this rule does not have 

significant federalism effects. A 

federalism summary impact statement is 

not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of this critical 

habitat designation with, appropriate 

State resource agencies. From a 

federalism perspective, the designation 

of critical habitat directly affects only 

the responsibilities of Federal agencies. 

The Act imposes no other duties with 

respect to critical habitat, either for 

States and local governments, or for 

anyone else. As a result, this final rule 

does not have substantial direct effects 

on the States, or on the relationship 

between the national government and 

the States, or on the distribution of 

powers and responsibilities among the 

various levels of government. The 

designation may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical or 

biological features of the habitat 

necessary for the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist State and 

local governments in long-range 

planning because they no longer have to 

wait for case-by-case section 7 

consultations to occur. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act will be 

required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule will not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. To assist the 

public in understanding the habitat 

needs of the species, this final rule 

identifies the physical or biological 

features essential to the conservation of 

the species. The areas of designated 

critical habitat are presented on maps, 

and the rule provides several options for 

the interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) is not required. 

We may not conduct or sponsor and you 

are not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

Regulations adopted pursuant to 

section 4(a) of the Act are exempt from 

the National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.) and do 

not require an environmental analysis 

under NEPA. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

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

includes listing, delisting, and 

reclassification rules, as well as critical 

habitat designations. In a line of cases 

starting with Douglas County v. Babbitt, 

48 F.3d 1495 (9th Cir. 1995), the courts 

have upheld this position. 

However, when we designate as 

‘‘critical habitat’’ any areas that fall 

within the jurisdiction of the U.S. Court 

of Appeals for the Tenth Circuit, 

including this designation for the 

Pen ̃ asco least chipmunk, we undertake 

a NEPA analysis for that critical habitat 

designation consistent with the Tenth 

Circuit’s ruling in Catron County Board 

of Commissioners v. U.S. Fish and 

Wildlife Service, 75 F.3d 1429 (10th Cir. 

1996). 

We performed the NEPA analysis, and 

the draft environmental assessment was 

made available for public comment on 

June 13, 2022, on the New Mexico 

Ecological Services Field Office website 

(below). We emailed notices to 64 

individuals, agencies, organizations, 

and Tribes that were likely to be 

interested in and/or potentially affected 

by the proposed action. We accepted 

public comments through September 9, 

2022, and received comments from 

Holloman Air Force Base and the 

Lincoln County Government and Board 

of Commissioners. The final 

environmental assessment and finding 

of no significant impact have been 


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completed and are available for review 

with the publication of this final rule. 

You may obtain a copy of the 

documents online at https://

www.regulations.gov, by mail from the 

New Mexico Ecological Services Field 

Office (see ADDRESSES), or by visiting 

our website at https://www.fws.gov/ 

office/new-mexico-ecological-services/. 

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. 

In a letter dated November 27, 2017, 

we informed the Mescalero Apache 

Tribe of our intent to conduct a status 

assessment for the Pen ̃ asco least 

chipmunk. On July 5, 2018, we shared 

the draft of the SSA report (Service 

2018) with the Mescalero Apache Tribe 

for their partner review. We sent a 

notification letter to the President of the 

Mescalero Apache Tribe, on September 

24, 2021, notifying the Tribe that the 

proposed rule had published in the 

Federal Register to allow for the 

maximum time to submit comments. We 

received a letter from the Tribe March 

8, 2023, which explained their 

opposition to designation of critical 

habitat on Tribal land and the Ski 

Apache Resort (Mescalero Apache Tribe 

2023, entire). We plan to continue 

working with the Tribe for conservation 

of the Pen ̃ asco least chipmunk and other 

species of concern. 

We considered Tribal areas for 

exclusion from final critical habitat 

designation to the extent consistent with 

the requirements of section 4(b)(2) of the 

Act and subsequently excluded two 

portions of the Sierra Blanca Unit (Unit 

3) from this final designation. 

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 U.S. 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 § 17.11, amend paragraph (h) in 

the List of Endangered and Threatened 

Wildlife by adding an entry for 

‘‘Chipmunk, Pen ̃ asco least’’ in 

alphabetical order under MAMMALS to 

read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

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

MAMMALS

* * * * * * * 

Chipmunk, Pen ̃asco least Neotamias minimus 

atristriatus.

Wherever found .............. E 89 FR [INSERT FEDERAL REGISTER PAGE 

WHERE THE DOCUMENT BEGINS], 12/10/ 

2024; 50 CFR 17.95(a).CH

* * * * * * * 

■ 3. In § 17.95, amend paragraph (a) by 

adding an entry for ‘‘Pen ̃ asco Least 

Chipmunk (Neotamias minimus 

atristriatus)’’ after the entry for 

‘‘Woodland Caribou (Rangifer tarandus 

caribou), Southern Mountain Distinct 

Population Segment (DPS)’’ to read as 

follows: 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

Pen ̃ asco Least Chipmunk (Neotamias 

minimus atristriatus) 

(1) Critical habitat units are depicted 

for Lincoln County, New Mexico, on the 

maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of the Pen ̃ asco least 

chipmunk consist of the following 

components: 

(i) Areas within the White Mountains 

that: 

(A) Are between elevations of 2,500– 

3,597 meters (8,200–11,800 feet); 

(B) Contain rock outcrops or talus; 

(C) Are subalpine Thurber’s fescue 

meadow/grassland communities found 

within openings of spruce-fir forest, 

above tree line in the glacial cirque, 

containing tall bunchgrasses, including 

Thurber’s fescue, sedges, flowering 

forbs, and shrubs; and 

(D) Contain widely spaced largediameter conifers, such as Engelmann 

spruce or ponderosa pine, intermixed in 

low densities with the meadow/ 

grassland vegetation. 

(ii) Forage, including species of 

Asteraceae, flowers and fruits of 

gooseberry (Ribes spp.), wild strawberry 

(Fragaria spp.), pinyon (Pinus edulis) 

nuts, Gambel oak (Quercus gambelii) 

acorns, and insects. 


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(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on January 9, 2025. 

(4) Data layers defining map units 

were created using publicly available 

geospatial vegetation data for the 

Lincoln National Forest, 30-meter 

digital elevation models from the 

National Elevation Dataset, and 3-band 

county mosaics obtained from the 

National Agricultural Imagery Program. 

The maps in this entry, as modified by 

any accompanying regulatory text, 

establish the boundaries of the critical 

habitat designation. The coordinates or 

plot points or both on which each map 

is based are available to the public at 

https://www.regulations.gov at Docket 

No. FWS–R2–ES–2020–0042 and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting one 

of the Service regional offices, the 

addresses of which are listed at 50 CFR 

2.2. 

(5) Index map follows: 

Figure 1 to Pen ̃ asco least chipmunk 

(Neotamias minimus atristriatus) 

paragraph (5) 


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(6) Unit 1: Nogal Peak, Lincoln 

County, New Mexico. 

(i) Unit 1 consists of approximately 

393 hectares (972 acres) of subalpine 

habitat within the Lincoln National 

Forest Wilderness Area. Elevation 

ranges approximately 2,570–3,031 

meters (8,432–9,944 feet) above mean 

sea level. 

(ii) Map of Unit 1 follows: 

Figure 2 to Pen ̃ asco least chipmunk 

(Neotamias minimus atristriatus) 

paragraph (6)(ii) 

(7) Unit 2: Crest Trail, Lincoln 

County, New Mexico. 

(i) Unit 2 consists of approximately 

910 hectares (2,249 acres) of subalpine 

habitat located within the Lincoln 

National Forest Wilderness Area. 

Elevation ranges approximately 2,621– 

3,292 meters (8,599–10,800 feet) above 

mean sea level. 

(ii) Map of Unit 2 follows: 

Figure 3 to Pen ̃ asco least chipmunk 

(Neotamias minimus atristriatus) 

paragraph (7)(ii) 


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(8) Unit 3: Sierra Blanca, Lincoln 

County, New Mexico. 

(i) Unit 3 includes approximately 471 

hectares (1,165 acres) of subalpine 

habitat located within the Lincoln 

National Forest and Lincoln National 

Forest Wilderness Area. Elevation 

ranges approximately 2,763–3,518 

meters (9,065–11,542 feet) above mean 

sea level. 

(ii) Map of Unit 3 follows: 

Figure 4 to Pen ̃ asco least chipmunk 

(Neotamias minimus atristriatus) 

paragraph (8)(ii) 


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* * * * * 

Gary Frazer, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. 2024–28338 Filed 12–9–24; 8:45 am] 

BILLING CODE 4333–15–P 


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