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standard, and prohibit wideband MHz commercial licensees, and whether that this further notice of proposed operations on a going forward basis. The Federal or other grant monies could be rulemaking in WT Docket No. 06–150, public safety community expressed used. In the event the Commission CC Docket No. 94–102, WT Docket No. broad support for a broadband determines to license the broadband 01–309, WT Docket No. 03–264, WT allocation to enable advanced allocation to a nationwide public safety Docket No. 06–169, WT Docket No. 96– communications capabilities. The broadband licensee, the FNPRM also 86 and PS Docket No. 06–229 IS availability of a contiguous block of invites comment on whether that ADOPTED. broadband spectrum, subject to a licensee should be assigned 119. It is further ordered that pursuant nationwide interoperability standard, responsibility for funding the to applicable procedures set forth in § § would enable partnerships with reconfiguration. 1.415 and 1.419 of the Commission’s commercial licensees in adjacent 115. Although the economic burden Rules, 47 CFR 1.415, 1.419, interested broadband spectrum. As a result, the on public safety to effectuate parties may file comments on the proposed band plan would ultimately reconfiguration is expected to be further notice of proposed rulemaking enable public safety entities to utilize relatively small, the FNPRM will on or before May 23, 2007 and reply the 700 MHz spectrum in a more cost- develop a record on the true costs that comments on or before May 30, 2007. effective and spectrally efficient manner would be implicated. The Commission 120. It is further ordered that the to address their homeland security and remains open to considering Commission’s Consumer and emergency response roles. Because the alternatives, however, should an Governmental Affairs Bureau, Reference Commission does not anticipate that the alternative be stated in comments that Information Center, SHALL SEND a proposal will impose additional would reach our objectives and copy of this further notice of proposed economic burdens on public safety, and minimize the impact on public safety rulemaking, including the Initial is in fact designed to reduce economic entities. Regulatory Flexibility Analysis, to the burdens on public safety, the 116. Frontline Proposal. In the Chief Counsel for Advocacy of the Small Commission has taken steps to FNPRM, the Commission seeks Business Administration. minimize any adverse impact of the rule comment on Frontline’s proposed 121. It is further ordered that the changes. ‘‘Public Safety Broadband Deployment Commission shall send a copy of this Plan.’’ Although Frontline proposes that further notice of proposed rulemaking 114. The FNPRM also seeks comment the Commission offer bidding credits to in a report to be sent to Congress and on its tentative conclusion to applicants based on their status as a the General Accounting Office pursuant consolidate the narrowband spectrum to small business, the Commission to the Congressional Review Act, 5 the top of the public safety band and tentatively concludes in the FNPRM U.S.C. 801(a)(1)(A). locate the broadband spectrum at the that it should not offer any bidding Federal Communications Commission. bottom of the public safety band, in preferences, such as bidding credits, to Marlene H. Dortch, light of the potentially significant applicants for the ‘‘E Block’’ license. benefits such reconfiguration would The FNPRM states, however, that the Secretary. afford the public safety community. The public interest would not appear to [FR Doc. E7–8440 Filed 5–1–07; 8:45 am] alternative would be to retain the favor giving applicants a preference BILLING CODE 6712–01–P existing band plan. The FNPRM seeks when bidding for the ‘‘E Block’’ license comment on how to implement based on their limited financial reconfiguration of the narrowband resources, as the Commission does DEPARTMENT OF THE INTERIOR channels with minimum disruption to when it offers bidding credits to small Fish and Wildlife Service incumbent operations. The FNPRM businesses in these circumstances. The invites comment on an appropriate Commission stated that its concerns 50 CFR Part 17 transition mechanism, including how to regarding the capital needed to accommodate public safety operations implement a nationwide service are in the border areas with Canada and Endangered and Threatened Wildlife especially acute in this instance, and Plants; 12-Month Finding on a Mexico, and the costs of relocation and because the ‘‘E Block’’ licensee would how such costs will be covered. The Petition to List the Sand Mountain Blue be responsible for constructing a Butterfly (Euphilotes pallescens ssp. Commission expects that the number of network to meet the needs of critical entities impacted and expected cost of arenamontana) as Threatened or public safety providers. The Endangered with Critical Habitat reconfiguration should be relatively Commission seeks comment on this minor. To assist the Commission in its tentative conclusion. AGENCY: Fish and Wildlife Service, analysis, however, commenters are Interior. F. Federal Rules That May Duplicate, requested to provide information ACTION: Notice of 12-month petition Overlap, or Conflict With the Proposed regarding the number of narrowband finding. radios that are deployed, as well as the Rules number of radios that are in active use, 117. None. SUMMARY: We, the U.S. Fish and and thus would be affected by the Wildlife Service (Service), announce our proposed changes to the 700 MHz Ordering Clauses 12-month finding on a petition to list public safety band plan as described in 118. It is further ordered pursuant to the Sand Mountain blue butterfly the FNPRM. The FNPRM recognizes Sections 1, 2, 4(i), 5(c), 7, 10, 201, 202, (Euphilotes pallescens arenamontana) that the public safety community’s 208, 214, 301, 302, 303, 307, 308, 309, as threatened or endangered under the ability to fund the reconfiguration may 310, 311, 314, 316, 319, 324, 332, 333, Endangered Species Act of 1973, as be limited. Thus, in addition to 336, 337, 614, 615, and 710 of the amended (Act). After a thorough review considering whether public safety Communications Act of 1934, as of all available scientific and should pay for its own relocation costs, amended, 47 U.S.C. 151, 152, 154(i), commercial information, we find that the FNPRM seeks comment on several 155(c), 157, 160, 201, 202, 208, 214, 301, the petitioned action is not warranted. alternatives, including whether to 302, 303, 307, 308, 309, 310, 311, 314, We ask the public to continue to submit impose funding requirements on 700 316, 319, 324, 332, 333, 336, and 337, to us any new information concerning

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the status of, and threats to, this butterfly remained a Category 2 April 26, 2007 (Center for Biological subspecies. This information will help candidate as Euphilotes rita ssp. in our Diversity et al. v. Norton, and U.S. Fish us to monitor and encourage the 1994 CNOR (November 15, 1994; 59 FR and Wildlife Service (CV–00023–LKK– ongoing management of this subspecies. 59020). In the CNOR published on GGH), (E.D. Cal)). DATES: The finding announced in this February 28, 1996 (61 FR 7596), we On August 8, 2006, we published our document was made May 2, 2007. adopted a single category of candidate 90-day finding in the Federal Register ADDRESSES: Data, information, species defined as follows: ‘‘Those (71 FR 44988), in which we concluded comments, or questions regarding this species for which the Service has on file that the petition presented substantial notice should be submitted to the Field sufficient information on biological scientific or commercial information to Supervisor, Nevada Fish and Wildlife vulnerability and threat(s) to support indicate that listing the Sand Mountain Office, U.S. Fish and Wildlife Service, issuance of a proposed rule to list but blue butterfly may be warranted, we 1340 Financial Boulevard, Suite 234, issuance of the proposed rule is initiated a status review of the taxon, and we solicited comments and Reno, NV 89502. The complete precluded.’’ In previous CNORs, species information to be provided in administrative file for this finding is matching this definition were known as connection with the status review by available for inspection, by appointment Category 1 candidates for listing. Thus October 10, 2006. This notice and during normal business hours, at the Service no longer considered constitutes our 12-month finding and is the above address. Category 2 species as candidates, and did not include them in the 1996 or any submitted in fulfillment of the April 20, FOR FURTHER INFORMATION CONTACT: subsequent CNORs. The decision to stop 2006, stipulated settlement agreement. Robert D. Williams, Field Supervisor, considering Category 2 species as On August 18, 2006, we became a Nevada Fish and Wildlife Office (see candidates was designed to reduce signatory to the multi-party Sand ADDRESSES) (telephone 775/861–6300; confusion about the status of these Mountain Blue Butterfly Conservation facsimile 775/861–6301). species, and to clarify that we no longer Plan (Conservation Plan), which became SUPPLEMENTARY INFORMATION: regarded these species as candidates for effective September 21, 2006 (Lahontan Background listing. Since the Sand Mountain blue Valley Environmental Alliance (LVEA), butterfly was a Category 2 species, we 2006). For a further discussion of the Section 4(b)(3)(B) of the Act (16 no longer recognized it as a candidate Conservation Plan, see the U.S.C. 1531 et seq.) requires that, for species as of the February 28, 1996, ‘‘Conservation Efforts’’ section below. any petition to revise the List of CNOR (61 FR 7457). Biology and Distribution Endangered and Threatened Wildlife On April 23, 2004, we received a and Plants that contains substantial formal petition, dated April 23, 2004, The genus Euphilotes, in the family scientific and commercial information from the Center for Biological Diversity, Lycaenidae, is comprised of five species that listing may be warranted, we make Xerces Society, Public Employees for of small, pale blue butterflies from a finding within 12 months of the date Environmental Responsibility, and the western North America that are of our receipt of the petition on whether Nevada Outdoor Recreation Association, distinguished by discrete differences in the petitioned action is: (a) Not requesting that the Sand Mountain blue genitalia (Pratt 1994, p. 388). The genus warranted, (b) warranted, or (c) butterfly, currently recognized as is noteworthy for its close relationship warranted, but the immediate proposal Euphilotes pallescens ssp. with the plant genus Eriogonum (wild of a regulation implementing the arenamontana taxonomically, known buckwheat), a genus of about 250 petitioned action is precluded by other only from Sand Mountain, Nevada, be species of shrubs, subshrubs, and herbs pending proposals to determine whether listed as threatened or endangered in largely from western North America any species is threatened or endangered, accordance with section 4 of the Act, (Reveal 2005). Euphilotes taxa are and expeditious progress is being made and that critical habitat be designated among the most specialized of the North to add or remove qualified species from for the species concurrent with the American butterflies in host plant the List of Endangered and Threatened listing. The petition is available on the adaptations (Pratt 1988, p. 63). They Wildlife and Plants. Such 12-month Nevada Fish and Wildlife Office Web typically utilize species of Eriogonum findings are to be published promptly in site (go to http://www.fws.gov/nevada/ for mating, obtaining nectar, host the Federal Register. Section 4(b)(3)(C) and click on the Nevada Species link, searching, and egg laying (Pratt 1994, p. of the Act requires that a petition for then on Sand Mountain blue butterfly 388). Many of the species and which the requested action is found to link). subspecies within the genus have highly be warranted but precluded shall be Action on this petition was precluded restricted ranges, in part because of this treated as though resubmitted on the by court orders and settlement specialized relationship with date of such finding (that is, requiring agreements for other listing actions that Eriogonum. The larvae (and to some a subsequent finding to be made within required nearly all of our listing funds degree the adults) of Euphilotes 12 months). for fiscal years 2004 and 2005. On subspecies are known to specialize on September 26, 2005, we received a 60- the flowers and seeds of specific Previous Federal Action day notice of intent to sue, and on Eriogonum (Pratt 1988, p. 104). This We included the Sand Mountain blue January 5, 2006, we received a relationship has been the subject of butterfly under the name Euphilotes rita complaint regarding our failure to carry several studies on evolution (Shields ssp. as a Category 2 candidate species in out the 90-day finding on the petition to and Reveal 1988, pp. 51–93; Pratt 1988, our November 21, 1991 Candidate list the Sand Mountain blue butterfly. pp. 1–653; Pratt 1994, pp. 387–416). Notice of Review (CNOR) (56 FR 58829). On April 20, 2006, we reached an The pale blue butterfly, Euphilotes Category 2 included taxa for which agreement with the plaintiffs to submit pallescens, was first described by Tilden information in our possession indicated to the Federal Register a completed 90- and Downey in 1955 under the name that a proposed listing rule was possibly day finding by July 28, 2006. The Philotes pallescens based on specimens appropriate, but for which sufficient agreement specified that if our 90-day collected in Tooele County, Utah (Pratt data on biological vulnerability and finding concluded that the petition 1988, p. 18; Mattoni 1965, pp. 81, 94). threats were not available to support a contained substantial information, we Mattoni (1965, p. 94) reduced the taxon proposed rule. The Sand Mountain blue would complete a 12-month finding by to a subspecies which he called Philotes

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(=Euphilotes) rita ssp. pallescens, but he (patches of different coloration) are (Peterson 1996, p. 1990). Dispersal of only examined a pair of specimens small, often nearly obsolete on the the Sand Mountain blue butterfly has collected at the same time as the hindwing. Females have a wingspan not been studied, but in another species original collection by Tilden and that ranges from 10.0 to 11.9 mm (0.39 in the same genus, Euphilotes enoptes, Downey. Mattoni based his taxonomic to 0.46 in), with an average of 10.9 mm most adults were found to move less conclusion on the configuration of the (0.43 in). The female dorsum (back) is than 1,640 feet (ft) (500 meters (m)) and male genitalia, which was thought to be brown to tan, and usually pale bluish- their dispersal distance rarely exceeded the primary characteristic gray basally on both wings. The 0.6 mi (1 km) (Arnold 1983 and distinguishing P. rita from all other forewing has a faint brown cell-end bar, Peterson 1994, as cited in Peterson members of the genus (Mattoni 1965, p. while the hindwing has marginal dots. 1996, p. 1990). 81; Shields 1977, p. 2), and his opinion The forewing apex is usually whitish. Isolated sand dunes are common that ‘‘greater biological meaning arises The hindwing aurora is pale orange to throughout the Great Basin, often from a classification based upon pale pink, usually grading to nearly associated with depositional areas for relationship rather than difference’’ white distally and not strongly windborne sediments derived from the (Mattoni 1965, p. 99). contrasting (Austin 1998, p. 556). now dry beds of Pleistocene Epoch In the first modern biosystematic The Sand Mountain blue butterfly is lakes; these geologic features are analysis of the genus, Pratt (1988, 1994) the palest of all Euphilotes. The ground referred to as pluvial lakes, indicating used cladistic analysis, a method of color of both sexes is considerably paler their origins during the periods of examining taxonomic relationships than that of E. pallescens ssp. greater precipitation and lower among species using shared derived pallescens. The pinkish aurora is unlike evaporation typical of the Pleistocene characteristics (features possessed by that of any other Euphilotes. The pale climate of the Great Basin. Studies of two or more taxa in common), to assess bluish-gray wing bases of the female do dispersal of the sand dune-obligate its members of the genus Euphilotes. He not contrast with the distal area of the beetle, Eusattus muricatus, widely compared 79 morphological characters wing as they do on E. pallescens ssp. distributed throughout the Great Basin and analyzed enzymes (proteins), allelic pallescens. The black macules of E. and Mojave Deserts, have shown that variation (variation in genes coding for pallescens ssp. arenamontana tend to be populations on dunes separated by same trait), and diapause (period of smaller than those of E. pallescens ssp. approximately 60 mi (100 km) generally suspended growth or development pallescens (Austin 1998, p. 557). exchange very few migrants, even similar to hibernation) intensity among The species Euphilotes pallescens is among dunes within the same pluvial 36 taxa of Euphilotes from western distributed discontinuously from basin (Britten and Rust 1996, p. 651). North America (Pratt 1988, 1994). Based southern and central California (east of Based on these data, the authors of this on these analyses, he concluded that the Sierra Nevada) through the Great study recommended that all dune- Euphilotes pallescens should be Basin of central Nevada and across obligate populations in the Great Basin recognized as a full species (Pratt 1994, central and southern Utah (Pratt 1994, separated by 60 mi (100 km) or more pp. 401–402; Pratt and Emmel 1998, p. p. 402; Shields 1977). The subspecies from the nearest dune within the same 209). The Sand Mountain blue butterfly known as the Sand Mountain blue pluvial lake basin be considered was first described as Euphilotes butterfly is known only from Sand genetically isolated (Britten and Rust pallescens ssp. arenamontana by Austin Mountain, Churchill County, Nevada, 1996, p. 651). In fact, taxonomic in 1998 (1998, pp. 556–557); it is one of where it is dependent on its host plant, distinctions made within Euphilotes seven named subspecies of the pallid Eriogonum nummulare (Kearney pallescens are generally consistent with blue butterfly in Nevada (Murphy et al. buckwheat) (Austin 1998, p. 557; this approach, with E. p. ssp. calneva 2006, p. 2). Prior to the 1998 publication Shields 1977, p. 3), a long-lived, described from sand dunes in the Honey of this name, the Sand Mountain blue perennial shrub with numerous Lake area of northeastern California and butterfly had been considered a branches (Reveal 2002, p. 1), that occurs near Sand Pass, in adjacent Nevada potentially distinct subspecies of in scattered sandy locations in several (Emmel and Emmel, pp. 277–282; Euphilotes rita (Austin 1985, p. 105), western States (Welsh et al. 1993, p. Brussard 2006, p. 1; Murphy 2006a), the name under which it was previously 547). Searches have been conducted and E. p. ssp. ricei, known only from the assigned a Federal Category 2 candidate within 60 miles (mi) (100 kilometers Silver State Sand Dunes, which are status (see Previous Federal Action (km)) of Sand Mountain in an effort to north of Winnemucca, Nevada (Austin section). determine the presence or absence of et al. 2000, p. 3; Brussard 2006, p. 1; The Sand Mountain blue butterfly is Kearney buckwheat occurrences on Murphy 2006a); each of these sand dune small with pale blue coloration. Males sand dunes that might be able to sustain areas lies within the Lahontan pluvial have a wingspan that ranges from 10.0 occurrences of Sand Mountain blue basin at a minimum distance of about to 11.8 millimeters (mm) (0.39 to 0.46 butterflies; to date, no additional 120 mi (192 km) from Sand Mountain. inches (in)), with an average of 11.1 mm populations of Kearney buckwheat have We conclude that it is highly unlikely (0.44 in). The dorsum (back) is pale been found (Funari 2004; Caicco 2006a, that the Sand Mountain blue butterfly bluish violet, often whitish distally, 2006b). Kearney buckwheat was occurs at other sites within 60 mi (100 with a narrow (0.5 mm (0.002 in)) black reported in 1981 to occur in small km). Areas within 60 mi (100 km) have outer margin. There is usually a series numbers along the eastern edge of been surveyed to various extents with of dots on the hindwing, but sometimes Blowsand Mountain, which lies about no reported observations of the no more than a terminal line on the 12 mi (19.2 km) southwest of Sand butterfly’s host plant, Kearney forewing. There is generally an Mountain (The Nature Conservancy buckwheat. We also conclude that the indistinct pinkish to pale orange aurora 2004), but no plants were observed subspecies is unlikely to be found at of moderate width on the posterior during three reconnaissance surveys in sites located more than 60 mi (100 km) hindwing. At the vein tips on the 2003 and 2004 (Funari 2004). Many from Sand Mountain. Any population of posterior of both wings, there are fringes butterflies in the family Lycaenidae Euphilotes pallescens found at any sites of white with indistinct gray checkering. have very limited dispersal distances at distances greater than 60 mi (100 km) The bottom surface of the male that revolve intimately around their is most likely to be another subspecies abdomen is chalky white. Macules patchily distributed host plants of Euphilotes pallescens, based on the

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current accepted taxonomy of the the initial bloom, both seeds and Kearney buckwheat was the most species and the likely genetic isolation flowers are present for extended periods abundant shrub in the dune shrub of E. pallescens ssp. arenamontana due (Caicco 2006c). community (Murphy et al. 2006, p. 6 to its life history, ecology, and limited The Sand Mountain blue butterfly has and Figure 5). The buckwheat was dispersal ability. Based on satellite one brood from mid July to mid- usually among the dominant shrub imagery used to identify dune shrub September (Austin 1998, p. 557; Shields species both along the transect itself and habitat (BLM 2003, 2004), we estimate 1977, p. 5), a period that coincides with within individual plots (Murphy et al. that the current range of the subspecies the flowering/fruiting period of Kearney 2006, p. 6 and Figure 6). is approximately 1000 acres (405 ha), buckwheat. During the summer of 2006, The scientists made three conclusions within which Kearney buckwheat is scientists from the University of Nevada from the data they collected during the scattered in patches and is a dominant initiated a research effort to determine 2006 flight season of the Sand Mountain or co-dominant shrub on approximately the distributional relationship between blue butterfly. First, there was a large 500–600 ac (202–243 ha) (BLM 2006b). the butterfly, its host plant, and the number of Sand Mountain blue Thus, while Sand Mountain blue dune shrub community. Sand Mountain butterflies—‘‘perhaps hundreds of butterflies may be present anywhere blue butterflies were counted along a thousands’’—a number ‘‘substantially within their entire 1,000 ac (405 ha) 17,061 ft (5,200 m) transect, with five above a level that would indicate a need range, only 50 to 60 percent of this surveys made between July 15 and to carry out in situ or other actions to range is thought to have the Kearney August 9, 2006 (Murphy et al. 2006, p. enhance population size above a critical buckwheat shrubs on which they 4). The number of Sand Mountain blue minimum’’ (Murphy et al. 2006, p. 7). depend. butterflies counted along the transects Second, the butterfly appears to co- All Euphilotes larvae are believed to increased over the duration of the occur with its host plant across the diapause by burying into the soil 12.7 to sampling period; because no decline entirety of the shrub’s range at Sand 38.1 inches (in) (5 to 15 centimeters was detected in the number of Mountain, and the habitat quality for (cm)) prior to pupation, which may be butterflies counted over that time the butterfly increases in parallel with delayed for up to 6 years depending on period, researchers were unable to the shrub density from southwest to climatic conditions (Pratt 1988, p. 319). determine the precise length of the 2006 northeast across the site (Murphy et al. When this period of diapause is broken, flight season (Murphy et al. 2006, p. 5 2006, pp. 7–8). Third, the Kearney the pupae begin development and and Figure 2). buckwheat occurs in a dune shrub eventually emerge as adults from The researchers found that butterflies community with abundant Atriplex beneath the soil. The ability of larvae to occurred across the entire extent of their canescens (four-wing saltbush) at lower suspend growth for varying periods of study area, although, regardless of the elevations that transitions into a time may be part of the reason that the sampling date, butterflies were always community with a more diverse genus Euphilotes has high genetic more abundant in the northeastern assemblage of shrub species at higher diversity (Pratt 1988, pp. 427–428), portions of the study than in the elevations (Murphy et al. 2006, Figure presumably because it increases the southwestern areas (Murphy et al. 2006, 5). Along this gradient, the abundance likelihood for random mating. Figure 2). The researchers reported that of the Kearney buckwheat and, Because of the small size of the Sand ‘‘as the season matured, multiple [Sand therefore, the density of butterflies Mountain blue butterfly and the Mountain blue] butterflies were varied in parallel (Murphy et al. 2006, frequent high winds typical of the Sand observed flying around nearly every p. 8). Mountain area, it is likely that adult buckwheat plant at nearly every site on butterflies spend most of their life nearly every site visit. Even individual Conservation Efforts sheltered within the canopy of Kearney buckwheat shrubs, which were isolated On August 18, 2004, the Lahontan buckwheat plants (Murphy 2006a). from others by as many as hundreds of Valley Environmental Alliance (LVEA), Males of the genus exhibit a type of meters due to devegetation from vehicle at the request of its board of directors, mate-searching behavior known as activities, were visited by [Sand initiated a public planning effort to patrolling, which involves active Mountain] blue butterflies’’ (Murphy et develop a conservation plan for the searching for potential mates (Pratt al. 2006, pp. 5–6). Sand Mountain blue butterfly. The 1988, p. 371). The abundance of the butterfly was LVEA was created in 1993 by an Kearney buckwheat typically occurs closely correlated with Kearney agreement among local governments at Sand Mountain as a dominant or co- buckwheat flower phenology and and agencies to educate the public and dominant with other shrubs on less abundance. Early in the flight season, coordinate efforts to protect the natural active, smaller vegetated dunes around many flowers were unopened; flowers resources and agricultural-based the periphery of the main dune (The sequentially opened as the sampling economy of the communities in Nature Conservancy 2004, pp. 24–26). period progressed toward August, Churchill County. Over the past 13 Kearney buckwheat flowers and seeds although some unopened buds years, the LVEA has worked with are the sole food source for the larvae remained after sampling was terminated various interests to build knowledge (Pratt 1988, p. 64) and an important (Murphy et al. 2006, p. 6). Butterfly and to improve communications among nectar source for adults during their abundance was strongly correlated with the communities, stakeholder groups, flight period (Murphy et al. 2006, p. 1). both the number of buckwheat local governments, and State and The flowering period of the Kearney inflorescences (flowers) and the Federal agencies involved in, or affected buckwheat at Sand Mountain begins in abundance of the Kearney buckwheat by, the natural resources issues of the late June to early July and continues itself (Murphy et al. 2006, p. 6 and region (LVEA 2006, p. 1). through September (Reveal 2002, p. 2). Figure 6). Through the public planning effort Like many species of wild buckwheat The researchers also found that the described above, the LVEA organized (Meyer 2006), individual Kearney abundance of Kearney buckwheat varies and facilitated a working group to buckwheat plants may be in continuous considerably throughout the dune shrub identify and address the needs of the flower for well over a month (Caicco habitat, with higher host plant and Sand Mountain blue butterfly. This 2006c). Individual flowers within a butterfly densities in some areas. At a working group met regularly over the cluster bloom in succession so that after number of their sample locations, subsequent 21 months. In accordance

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with the Nevada Open Meeting Law Part 424 set forth procedures for adding (162 ha) of the total of 1,000 ac (405 ha), (Nevada Revised Statute, Chapter 241), species to the Federal List of of the Kearney buckwheat habitat occurs all meetings were open to the public Endangered and Threatened Wildlife. In within the designated boundary of the and noticed in advance with agendas making this finding, we summarize SMRA (BLM 2006a, Map 1). The posted in public facilities (Nevada Open below information regarding the status remaining estimated 60 percent of the Meeting Law Manual 2005). Meeting of this species in relation to the five Kearney buckwheat habitat occurs on notes are posted on the LVEA Web site factors provided in section 4(a)(1) of the BLM land outside of the eastern SMRA (go to http://www.lvea.org/workgrp.htm Act. In making our 12-month finding, boundary. Until recently, off-road and click on the link for this species and we have considered and evaluated all vehicle use was limited on only about then click on the link for meeting notes). scientific and commercial information 40 ac (16 ha) of the SMRA; no Kearney Participants in the working group in our files, including relevant buckwheat plants occur in this limited- included representatives from the information received during the use area. The rest of the SMRA was LVEA, the Bureau of Land Management comment period that ended October 10, open to unrestricted off-road vehicle (BLM), the Service, the City of Fallon, 2006 (71 FR 44988). use, as were all adjacent areas of the Churchill County, the Fallon Paiute dune system. Factor A: The Present or Threatened Shoshone Tribe (Tribe), the Friends of As early as 1985, motorized recreation Destruction, Modification, or Sand Mountain (FOSM), the California by motorcycles, four-wheel drive Curtailment of the Species’ Habitat or Off-Road Vehicle Association (CORVA), vehicles, three wheelers, and dune Range the United States Naval Air Station buggies, accounted for over 90 percent Fallon, and private citizens (LVEA 2006, The Sand Mountain blue butterfly is of the total visits to the SMRA (BLM pp. 1–2). known only from Sand Mountain in 1985). Annual visitor use at the SMRA The purpose of this effort was to Churchill County, Nevada, where it is increased from about 16,000 persons in develop a Conservation Plan to provide dependent on its larval host plant, 1981 to about 65,000 persons in 2005 long term protection for the Sand Kearney buckwheat (Austin 1998). The and was expected to increase again in Mountain blue butterfly and its habitat, entire Sand Mountain dune system is 2006 (BLM 2006c). Visitation tends to particularly, its host plant, Kearney estimated to extend over 2,581 ac (1,044 peak on holiday weekends; for example, buckwheat (Eriogonum nummulare). ha), but Kearney buckwheat is not more than 5,000 people were present Final agreement on the Conservation evenly distributed throughout this over the Labor Day weekend in 2006 Plan was reached on May 3, 2006, and entire area; Kearney buckwheat plants (Nevada Appeal 2006, p. 1). In recent it was signed by representatives of the are typically found on peripheral, more years, however, there has been a pattern BLM, the Service, the Tribe, CORVA, vegetated dunes, and are particularly of increased use on non-holiday FOSM, and Churchill County in August common on the smaller dunes to the weekends (BLM 2006c). and September, 2006. The Conservation northeast of the main dune (BLM 2006a, The BLM’s Carson City Field Office Plan identifies specific actions that are Map 1). In most areas, Kearney has documented the expansion of an off- necessary to: (1) Eliminate or reduce buckwheat is a component of a diverse road vehicle route system based on an known threats, (2) incorporate species dune shrub habitat comprised of up to analysis of satellite imagery from 1978, conservation measures into planning 13 shrub species (BLM 2004). An 1994, 1999, and 2002; the route system and management activities, (3) educate estimated 1,000 ac (405 ha) of dune has grown from about 20 mi (32 km) of permittees and recreation users, and (4) shrub habitat with varying amounts of off-road vehicle trails in 1981 to about monitor species status trends and Kearney buckwheat existed in 2003 200 mi (320 km) in 2003 (BLM 2003). habitat quality and requirements. (BLM 2006b, p. 2). The current In addition to documenting the overall A designated route system, a distribution of the shrubs, as described proliferation of off-road vehicle routes, conservation action identified in the above, reflects both their natural the imagery clearly shows an increase in Conservation Plan (LVEA 2006, pp. 14– adaptation to specific site conditions the amount of habitat fragmentation and 19), has been implemented by the BLM and the cumulative effect of 25 years of an expansion of the off-road vehicle at Sand Mountain to protect the habitat off-road vehicle use. route system from the more accessible of the Sand Mountain blue butterfly A portion of the Sand Mountain dune southern end of the main dune into from further damage and destruction by system lies within the Sand Mountain dune shrub habitat adjacent to the off-road vehicles (72 FR 12187, March Recreation Area (SMRA), a BLM SMRA toward the north and east that 15, 2007). We used criteria specified in designation that encompasses 4,795 ac had been relatively undisturbed as our Policy for Evaluation of (1,940 ha), and is about 1.0 mi (1.6 km) recently as 1994 (BLM 2003). Conservation Efforts When Making wide and 3.5 mi (5.6 km) long. The Based on the trail proliferation visible Listing Decisions (PECE) (68 FR 15100– specific BLM designation of the SMRA in the satellite imagery from 1978 to 15115, March 28, 2003) to evaluate the for recreational use does not limit off- 2003 (BLM 2003, 2004), we estimate certainty of effectiveness of this road or other forms of recreation only to that the shrub habitat on which the designated route system and determined this area. Furthermore, the BLM Sand Mountain blue butterfly depends there is a high level of certainty of designation restricts non-recreation type may have been reduced by as much as effectiveness of the designated route activities, such as mineral mining, from 50 percent over the past 25 years. At system; consequently, we can consider occurring within the boundary of the most, 1,000 ac (405 ha) of dune shrub this action in making a determination as designation. habitat remains, and within that area to whether the Sand Mountain blue The recreational use designation for 500 ac (202 ha) to 600 ac (243 ha) may butterfly meets the Service’s definition the SMRA was first established in 1968 have Kearney buckwheat as a dominant of a threatened or endangered species (BLM 1985, p. 4). By 1973, recreational or co-dominant shrub (BLM 2006c). We (Service 2007). use had reached 32,254 visitors consider the entire 1,000 ac (405 ha) of annually (BLM 1985, p. 5). The first dune shrub habitat to be the current Summary of Factors Affecting the approved management plan for the area range of the Sand Mountain blue Species was developed more than a decade later butterfly; this includes non-Kearney Section 4 of the Act (16 U.S.C. 1533) (BLM 1985). Based on BLM information, buckwheat habitat through which the and implementing regulations at 50 CFR we estimate that 40 percent, or 400 ac species passes, including areas devoid

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of vegetation such as trails, as well as road vehicle use, which was of expanded from 20 mi (32 km) to over areas that support the Kearney particular concern because of the small 200 mi (320 km) over this time period buckwheat shrubs on which the overall size of the area and the (BLM 2003); an estimate that 1,000 to butterfly depends for completion of its likelihood of increasing use levels at the 1,600 ac (405 to 647 ha) of dune shrub life cycle. Because the amount of SMRA (The Nature Conservancy 2004, habitat remained in which Kearney Kearney buckwheat within a patch of p. 36). It should be emphasized that this buckwheat is a component (BLM 2004, dune shrub habitat varies, no precise ranking was for the Sand Mountain p. 4); and our estimate, based on data on the total number of individual dune ecosystem as a whole and none of satellite imagery prepared by BLM Kearney buckwheat shrubs is available. the viability criteria evaluated (2003), that about 50 percent of the dune We also have no reliable estimate of the specifically addressed either the status shrub habitat within the species current historical distribution of the Kearney of the Sand Mountain blue butterfly or range may have been destroyed or buckwheat at Sand Mountain other than the Kearney buckwheat. The relevance altered over this 25-year time span. an anecdotal report of a minor amount of this report to the dune shrub habitat The scientific literature documents of vegetation having been lost along the lies in its assessment that the process the effects of off-road vehicles on periphery of the dune (Guiliani 1977); that supplies the source of sand to the terrestrial habitats in arid environments, therefore, we consider the existing ecosystem remains intact, and the including sand dunes. Effects include estimate of 1,000 ac (405 ha) of dune corroboration that it provides of the significant reductions in the number, shrub habitat to approximate the threats posed by off-road vehicles and density, and cover of plants, including historic range of the Sand Mountain invasive weeds. shrubby perennials (Bury and blue butterfly. There have been several observations Luckenbach 1983) and direct impacts on over the past 25 years on the effects of desert vegetation (Stebbins 1995; The Sand Mountain dune system was off-road vehicles on the Sand Mountain Lathrop 1983; Lathrop and Rowlands included in an initial conservation dune shrub habitat, on the Kearney 1983). While none of these citations assessment of blowing sand mountains buckwheat, and on the relationship provides specific evidence of a direct prepared by The Nature Conservancy between the buckwheat habitat and the significant threat to the Sand Mountain (2004). This conservation assessment Sand Mountain blue butterfly. These blue butterfly, the papers by Bury and ranked the long-term (defined as greater include: (1) A letter documenting the Luckenbach (1983, pp. 211–213), than 100 years) viability of the Sand extirpation of all plant life from an area Lathrop (1983, pp. 157–164), Lathrop Mountain dune ecosystem based on 150 ft (46 m) wide along the edge of the and Rowlands (1983, pp. 138–141, 144– size, condition, and landscape context, main dune over a period of several years 146), and Stebbins (1995, pp. 471–472) using information from the existing (Giuliani 1977); (2) a memorandum from do provide documentation that off-road literature and expert opinion (The the Service to the BLM reporting that up vehicles can damage and destroy plants Nature Conservancy 2004, p. 29). Each to half of 58 individual Kearney and result in significant decreases in of these factors had the potential to be buckwheat plants inspected on the plant numbers, density, and cover, ranked as very good, good, fair, or poor south side of the mountain had been including shrubby perennials at various based on specific viability criteria (The crushed and broken off at the ground sites in the western North American Nature Conservancy 2004, p. 35). Size surface and were either dead or in the deserts. Specific observations of such was ranked as good if there was 1,236 process of resprouting from the impacts at Sand Mountain have been ac-2,471 ac (500–1,000 ha) of connected rootstocks (Service 1994); (3) a mid- reported previously (Guiliani 1977; habitat outside of the area heavily 1990’s report to the Service from a Service 1994; The Nature Conservancy affected by off-road vehicle use (The research scientist at the University of 2004, p. 36; BLM 2006e). Nature Conservancy 2004, p. 35). The Nevada, Reno, stating that ‘‘as long as The scientific literature provides condition rank was based on three the foodplant remains as abundant as it documentation that natural recovery criteria: (1) Whether invasive plants is now in the overall dune area, we saw rates of perennial vegetative cover were present that could artificially no particular threat to the continued damaged by off-road vehicles in arid stabilize dune dynamics; (2) whether existence of the butterfly’’ (Brussard environments can take decades and, in other alterations affecting dune 1995). some cases, may require centuries mobility, such as vegetation mortality or In our 90-day finding on the petition (Lathrop and Rowlands 1983; artificial mobilization of stable sands, to list the Sand Mountain blue butterfly Kockelman 1983; Webb and Wilshire were occurring; and (3), whether there (71 FR 44988, August 8, 2006), we 1983). The papers by Lathrop and was natural recruitment by key plant concluded that the petition provided Rowlands (1983, p. 143) and Kockelman species. The condition was assigned a substantial information to support the (1983, p. 3) provide a timeframe for fair rank based on the fact that only the assertion that off-road vehicle use at understanding natural recovery rates of criterion regarding the presence of Sand Mountain presents direct and habitats damaged by off-road vehicle invasive plants was met (The Nature indirect threats to the dune shrub use in arid environments. We Conservancy 2004, p. 35). The habitat with Kearney buckwheat on previously found that these studies landscape context was ranked very good which the Sand Mountain blue butterfly provided reliable documentation that based on the fact that the connection to depends. In particular, we based our even if off-road vehicle use were to be the current sand source remained intact conclusion on the following—data eliminated from Sand Mountain, natural (The Nature Conservancy 2004, p. 35). provided by the petitioners that reliably recovery of the Kearney buckwheat Overall, the long-term viability of the documented a progressive loss of dune habitat may take decades, a timeframe Sand Mountain dune system was ranked shrub habitat within the past 25 years, that might pose an indirect threat to the marginally good, but it was noted that continuing fragmentation of dune shrub long-term viability of an obligate the ‘‘rapid trend towards an increasingly habitat, and an ongoing expansion of the butterfly species that must reproduce degraded condition of this area is of route system into dune shrub habitat annually and relies on the buckwheat as considerable concern’’ (The Nature previously considered secure for the a host plant. We now have evidence, Conservancy 2004, p. 35). The butterfly (BLM 2003); data that however, from the first comprehensive assessment noted that the condition of documents annual visitor use has more assessment of the status of the Sand the area was primarily affected by off- than doubled and the route system has Mountain blue butterfly to indicate that

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a large viable population of the species Kearney buckwheat, on December 12, local law enforcement staff will be used exists despite the past loss of habitat; 2006, the BLM implemented an in the camping areas to allow BLM Park moreover, the presence of butterflies at emergency restriction on motorized use Rangers to patrol the route system and even small, relatively isolated patches of on 3,985 ac (1,612 ha) of land to prevent other areas (LVEA 2006, p. 20). Further, Kearney buckwheat suggests that the further adverse effects on the habitat of any person who fails to comply with the butterfly is not particularly sensitive to the Sand Mountain blue butterfly (BLM BLM restriction order may be subject to habitat fragmentation (Murphy et al. 2006b); the closure notice was imprisonment for not more than 12 2006, pp. 5–6). published in the Federal Register on months or a fine in accordance with the Furthermore, as noted in the Biology March 15, 2007 (72 FR 12187). This applicable provisions of 18 U.S.C. 3571, and Distribution section, since the action, which reduces the route system or both (BLM 2006b, p. 3; 72 FR 12187, publication of the 90-day finding, we both within and outside of the SMRA March 15, 2007). A handout was given have obtained new information on the from an estimated 200 mi (320 km) to to recreational users over Labor Day abundance and status of the Sand 21.5 mi (34.4 km), has returned the weekend, 2006, informing them of the Mountain blue butterfly and the route mileage to about the 1980 level. completion and approval of the potential threats of habitat loss and The route designation system adopted Conservation Plan, the upcoming fragmentation to the species. by BLM is consistent with the mandatory route system, and the Researchers collected data along several Conservation Plan (LVEA 2006) and the importance of demonstrating success in permanent transects installed restrictions are described by BLM as protecting the habitat for the Sand throughout the distribution of the dune necessary to prevent further adverse Mountain blue butterfly (BLM 2006d). A shrub habitat at Sand Mountain from effects to the habitat of the Sand variety of additional public education July 15 through August 9, 2006 (Murphy Mountain blue butterfly (72 FR 12187). activities are provided for in the et al. 2006, pp. 4–5). The scientists The route designation system is Conservation Plan, including estimated that hundreds of thousands of specifically designed to reduce threats interpretive, cautionary and regulatory adult Sand Mountain blue butterflies from recreational use, weed infestation, signage throughout the SMRA and dune may have emerged during the 2006 fire, and the reduction of site potential, system, as well as education pamphlets, flight season (Murphy et al. 2006, p. 7). thereby furthering the objectives of brochures, and information available on Adult butterflies were associated with eliminating off-road vehicle incursions Web sites and other forms of media nearly all Kearney buckwheat shrubs into dune shrub and butterfly habitat; (LVEA 2006, p. 21–24). along the transects and butterflies were preventing route increases in dune Implementation of the limited off- distributed across the entire available shrub habitat; minimizing shrub damage road vehicle route system is already habitat area, even with individual and loss; and allowing for habitat occurring. We have evaluated the buckwheat shrubs isolated from others regeneration and restoration (LVEA certainty of effectiveness of the by hundreds of meters (Murphy et al. 2006, p. 15). The emergency restriction designated route system using criteria 2006, p. 6). will remain in effect until the Resource specified in PECE (68 FR 15115, March The scientists concluded the Sand Management Plan (RMP) has been 28, 2003). Based on our evaluation, we Mountain blue butterfly numbers were updated to address the long-term have determined that this conservation ‘‘substantially above a level that would management of the wildlife, cultural, action satisfies all of the PECE criteria indicate a need to carry out in situ or vegetation, and recreational resources in for the certainty of effectiveness (Service other actions to enhance population size 2007). We conclude that the off-road the area or until the Field Office above a critical minimum’’ (Murphy et vehicle route system is sufficiently Manager determines it is no longer al. 2006, p. 7). Annual population certain to be implemented and effective needed (BLM 2006b, p. 1; 72 FR 12187, numbers may vary considerably so as to have reduced the present and March 15, 2007). Every indication we depending on local weather conditions, future threat of destruction, have from the BLM at both the field and the researchers note that the large modification, or curtailment of the office and state office level is that the population in 2006 may represent an habitat or range of the Sand Mountain emergency restriction will remain in atypical spike in the butterfly blue butterfly to a level such that off- place until made permanent through an population (Murphy et al. 2006, p. 9). road vehicle impacts to habitat are not amendment to the RMP. The RMP must However, even if this number represents a basis for finding that listing is an upper population estimate, we be updated in compliance with the warranted. believe that the very large number of Federal Land Management and Policy Other components of the butterflies observed during the recent Act, the National Environmental Policy Conservation Plan have also been survey clearly shows that the remaining Act, and other applicable laws and initiated related to research (LVEA Kearney buckwheat habitat is currently policies which have, among other 2006, pp. 27–28). These include sufficient to support a viable population requirements, opportunity for public mapping of current Kearney buckwheat of the Sand Mountain blue butterfly. and agency review and comment. Under and invasive weeds distribution; remote Although sufficient habitat remains to the terms of the Conservation Plan sensing of habitat characteristics, trends, support a robust population of the Sand monitoring of compliance with the and route analyses; studies of the Sand Mountain blue butterfly (Murphy et al. designated route system will continue Mountain blue butterfly population 2006, p. 7), researchers have cautioned and results will be reviewed every six status and habitat requirements; that ‘‘the sizable Sand Mountain blue months; areas in which non-compliance population dynamics of the Kearney population notwithstanding, continued exceeds a specified threshold will be buckwheat; and Kearney buckwheat degradation of the shrub community fenced (LVEA 2006, p. 60). propagation and transplantation studies. and losses of Kearney buckwheat will The Conservation Plan also includes Kearney buckwheat habitat and invasive ultimately lead to the elimination of the increased law enforcement to ensure weeds mapping and remote sensing butterfly’’ (Murphy et al. 2006, p. 9). To compliance in the use of the designated analysis of habitat characteristics, reduce the significance of the threat route system, especially on heavy use trends, and route analyses have been in posed to the Sand Mountain blue weekends and randomly at other times. progress for several years. The BLM has butterfly by continued degradation of Through an agreement with Churchill secured funding through grants to the shrub community and losses of County, which is a party to the Plan, purchase additional imagery to continue

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the trend analysis in 2006, 2009, and sufficient habitat remains at Sand restrictions was published in the 2012 (LVEA 2006, p. 28). Research on Mountain to support a large population Federal Register on March 15, 2007 (72 the population status of the butterfly of the Sand Mountain blue butterfly, FR 12187). The implementation of this was initiated during the 2006 adult and the reduction in the level of threat emergency restriction, and the high flight season by scientists from the due to the designated route system, over level of certainty of its effectiveness, has University of Nevada, Reno, with the long-term, ensures that natural substantially reduced the magnitude funding through the Nevada shrub regeneration and/or active and significance of any long-term threat Biodiversity Initiative; these data restoration will maintain sufficient posed by off-road vehicles to the habitat provide a baseline against which future habitat to ensure the viability of the and viability of the Sand Mountain blue fluctuations in the butterfly population Sand Mountain blue butterfly. butterfly. Therefore, we conclude that can be compared (Murphy et al. 2006). Although not identified as a threat by the Sand Mountain blue butterfly is not Pilot studies of the population dynamics the petitioners, trampling or grazing of now, or in the foreseeable future, of the Kearney buckwheat have been buckwheat plants and/or seedlings by threatened by destruction, modification, initiated (LVEA 2006, p. 27), and seed livestock was identified by the working or curtailment of its habitat or range. group as a potential threat to the habitat of the Kearney buckwheat has Factor B: Overutilization for previously been collected through the of the butterfly, although it was acknowledged that more information Commercial, Recreational, Scientific, or BLM Seeds of Success program. Educational Purposes Propagation studies using these seeds, was needed to determine the level of and other seeds to be collected on site, threat (LVEA 2006, pp. 11–12). Dune We are not aware of any scientific or are to be conducted by the Natural shrub habitat with and without Kearney commercial data that indicate Resource Conservation Service’s newly buckwheat occurs within portions of overutilization for commercial, established Fallon Plant Materials two range allotments, where it recreational, scientific, or educational Center, which will also conduct comprises 1,357 ac (549 ha), or 2 purposes poses a threat to the species. percent, of the Salt Wells Allotment, transplantation studies of propagated Factor C: Disease or Predation seedlings into disturbed habitats at Sand and 331 ac (134 ha), or 0.5 percent, of We are not aware of any scientific or Mountain (Tonenna 2006). While we the Frenchmen Flat Allotment. The commercial data that indicates either did not rely on them making this stocking values are set at 270 cattle and disease or predation poses a threat to finding, we recognized that these 1,626 animal unit months (AUMS) from the species. research components will both inform October 15 through April 15 for Salt and facilitate efforts to recover damaged Wells and 403 cattle and 2,001 AUMS Factor D: Inadequacy of Existing butterfly habitat at Sand Mountain as from October 15 through April 15 for Regulatory Mechanisms Frenchmen Flat. We are not aware of well as contribute to sound scientific In our 90-day finding on the petition data for future management actions. any evidence that supports trampling or grazing as a significant threat to the to list the Sand Mountain blue butterfly, In our 90-day finding, we addressed Kearney buckwheat. we found that the petitioners had the claim by the petitioners that the provided substantial information that constant disruption of the soil surface Summary of Factor A existing regulatory mechanisms may be makes it difficult or impossible for seeds Biological data on the Sand Mountain inadequate to prevent the progressive of the Kearney buckwheat to germinate blue butterfly collected by researchers decline of the habitat on which the and for seedlings to establish and document that hundreds of thousands butterfly depends (page 44991 of 71 FR concluded that the petitioners had may have been present during the 2006 44988, August 8, 2006). We based our provided no documentation for this adult flight season. These data show determination on evidence that the claim (71 FR 44991). The Service has that a large, robust population of the public had raised the issue of the since made field visits to Sand Sand Mountain blue butterfly remains potential impacts of off-road Mountain and, while we have no despite the estimated loss of as much as recreational use on the invertebrate quantitative data on this matter, we 50 percent of its habitat. The only fauna of the dune system over 25 years observed an absence of Kearney known threat of potential significance in ago (Hardy 1978); the inactivity of a buckwheat seedlings in areas of high the foreseeable future is the destruction monitoring plan initiated in the mid- off-road vehicle use. We also observed by off-road vehicles of the dune shrub 1990’s after personnel changes in both numerous Kearney buckwheat seedlings habitat containing the Kearney the BLM and Service; the lack of action in areas that received little, if any, off- buckwheat, upon which the butterfly on a 2002 proposed closure of 1,000 ac road vehicle use (Caicco 2006c). These depends for its survival. Habitat (405 ha) of dune shrub habitat by a observations are consistent with destruction is a gradual and cumulative group comprised of BLM and Service previous reports (Tonenna 2003 as cited process that affects not only mature staff, representatives from conservation in The Nature Conservancy 2004, p. 37). shrubs, but also likely disrupts their and off-road vehicle groups, and We believe, based on these observations, reproductive capacity by constant representatives of the Fallon-Paiute that the constant disruption of the sand disturbance of the sand surface, thereby Shoshone Tribe; and the lack of surface in heavily used areas may preventing seedling establishment. The compliance with a voluntary route interfere with the establishment of shrubs, however, are long-lived and the system implemented by the BLM in Kearney buckwheat and could habitat remains sufficiently extensive 2004 that was intended to protect and potentially pose a long-term threat to such that the threat to the butterfly does restore the sand dune ecosystem. shrub regeneration and, therefore, to the not cause it to be in danger of extinction The inadequacy of the voluntary off- long-term viability of the butterfly itself. nor likely to become in danger of road vehicle route system is well However, the restriction of off-road extinction in the foreseeable future. documented in a monitoring report on vehicle recreation to the designated Further, an emergency restriction on compliance with the encouraged route route system substantially reduces the motorized use on 3,985 ac (1,613 ha) to system for the period 2003–2006 (BLM magnitude and imminence of the threat protect the habitat of the butterfly went 2006e). High levels of noncompliance to the regeneration of Kearney into effect on December 12, 2006 and a occurred from the onset of buckwheat. As described above, closure notice regarding these implementation of the voluntary system,

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and the number of incursions into updated to address the long-term management plan will be triggered, if habitat outside of the encouraged routes management of the wildlife, cultural, appropriate. At annual meetings, the increased in 2006 (BLM 2006e, pp. 3– vegetation, and recreational resources in long-term monitoring will be analyzed 4). Multiple incursions into habitat the area or until the Field Office and continuation or modification of the outside of the encouraged route system Manager determines it is no longer plan will be determined, based on the typically occurred at any given point, so needed (BLM 2006b, p. 1; 72 FR 12187, triggers for overall plan success. We that the cumulative impacts were March 15, 2007). Every indication we note also that BLM has demonstrated considered to be four times greater than have from the BLM at both the field their commitment to monitor the the number of noncompliance points office and state office level is that the situation and to take appropriate action, (BLM 2006e, p. 6.). BLM’s information emergency restriction will remain in as illustrated by BLM’s adoption of the also indicates a strong relationship place until made permanent through an mandatory route system based on between the number of visitors and the amendment to the RMP. monitoring of the voluntary route number of noncompliance points (BLM The Conservation Plan also provides system that previously was in place. 2006e, p. 7). Moreover, about 50 percent for increased law enforcement, As described above (see discussion of of all noncompliance points occurred at especially on heavy use weekends and Factor A), we reviewed the route system or near red carsonite posts installed to randomly at other times; through an in accordance with PECE and found that alert riders that travel was discouraged agreement with Churchill County, all of the criteria for certainty of in areas behind the posts (BLM 2006e, which is a party to the Plan, local law effectiveness are met, and concluded p. 8). Overall, under the voluntary enforcement staff will be used in the there is a high level of certainty of system 98 percent of all existing routes camping areas to allow BLM Park effectiveness of the route system continued to be used and new routes Rangers to patrol the route system and (Service 2007). We conclude that the were created, indicating an ongoing other areas (LVEA 2006, p. 20). In emergency restriction on motorized expansion of habitat degradation with addition, any person who fails to vehicle use has established an adequate little or no restoration of previously comply with this restriction order may regulatory mechanism to protect the degraded areas (BLM 2006e, p. 13). be subject to imprisonment for not more existing Kearney buckwheat habitat than 12 months or a fine in accordance which, as noted above, remains On December 12, 2006, the BLM with the applicable provisions of 18 sufficient to support a large, viable implemented an emergency restriction U.S.C. 3571, or both (BLM 2006b, p. 3; population of the Sand Mountain blue on motorized use on 3,985 ac (1,613 ha) 72 FR 12187, March 15, 2007). A butterfly (Murphy et al. 2007, p. 7). of land to prevent further adverse effects handout was given to recreational users Summary of Factor D on the habitat of the Sand Mountain over Labor Day weekend, 2006, blue butterfly (BLM 2006b; 72 FR 12187, informing them of the completion and Unrestricted off-road vehicle March 15, 2007). This action, which approval of the Conservation Plan, the recreation at Sand Mountain has been reduced the route system from an upcoming mandatory route system, and the primary cause of the gradual process estimated 200 mi (320 km) to 21.5 mi the importance of demonstrating of destruction and modification of the (34.4 km), has returned the designated success in protecting the habitat for the dune shrub habitat of the Sand route mileage to about the 1980 level. Sand Mountain blue butterfly (BLM Mountain blue butterfly over the past The emergency restriction affects certain 2006d). two decades and remains the only threat public lands within Sections 13, 14, 16, The Conservation Plan includes of potential significance to the species 21 through 24, 28, 29, 32, and 33, of provisions for regular reporting on in the foreseeable future. However, we Township 17 North, Range 32 East (Mt. progress of implementation and have determined that the Diablo Meridian) (72 FR 12187). This effectiveness of various actions taken implementation and effectiveness of a action restricts motorized vehicle use to pursuant to the plan (LVEA 2006, p. 30). mandatory, enforceable route system selected existing routes that generally This includes provisions for regularly that restricts travel within the dune lie on the periphery of the Sand scheduled meetings of the parties to the shrub habitat adequately addresses this Mountain blue butterfly habitat, plan, at which an evaluation of the potential threat by eliminating or greatly although several existing routes remain implementation progress and reducing further habitat deterioration open to motorized use that cross effectiveness of the plan (including the and allowing for habitat recovery within between existing patches of dune shrub route system and its enforcement) will closed areas. We believe that the habitat; the designated routes were be reviewed and, if necessary, strengthened regulatory approach and selected to prevent further adverse modifications made and adaptive increased emphasis on encouraging effects to the habitat of the Sand management actions initiated. The first compliance with the mandatory route Mountain blue butterfly while meeting of the parties since the closure system has substantially reduced the maintaining recreational use at the notice was put into effect occurred on magnitude and imminence of the threat SMRA. This action is consistent with March 15, 2007. Implementation of off-road recreational use to the the Conservation Plan (LVEA 2006) and progress was reviewed, the signage and Kearney buckwheat habitat, which is specifically designed to address fencing strategy and funding currently remains sufficient to support a threats from recreational use, weed considerations were discussed, and the large, viable population of the Sand infestation, fire, and the reduction of next meeting was scheduled for May 10, Mountain blue butterfly. Therefore, we site potential, thereby furthering the 2007. The agenda for the latter meeting have determined that the inadequacy of objectives of eliminating or reducing the will include further discussion of the existing mechanisms does not currently number of off-road vehicle incursions fencing strategy and the scheduling of a constitute a threat to the Sand Mountain into dune shrub and butterfly habitat; site visit to discuss fence placement blue butterfly. eliminate route increase in dune shrub along key route segments. At every six- habitat; eliminate shrub damage and month meeting, the implementation Factor E: Other Natural or Manmade loss; and allow for habitat regeneration success of the conservation actions will Factors Affecting the Continued (LVEA 2006, p. 15). The emergency be evaluated, the success or failure of Existence of the Species restriction will remain in effect until the the objectives of each strategy will be Several other natural or manmade Resource Management Plan has been determined and an adaptive factors have been identified as potential

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threats to the Sand Mountain blue significance of off-road vehicles as a they create, and the potential for butterfly, including invasive weeds vector for weed transport because of wildfires to occur and increase in (LVEA 2006, p. 10; The Nature lack of data, although they likely frequency, thereby promoting the Conservancy 2004, pp. 49–52; Murphy facilitate weed establishment through increase and establishment of invasive et al. 2006, p. 7 and Figure 7), wildfire surface disturbance. weeds, all pose risks to at least some of (LVEA 2006, pp. 13–14; Murphy et al. Because both cheatgrass and Russian the habitat of the Sand Mountain blue 2006, p. 9); climate change (LVEA 2006, thistle are annual plants, we do not butterfly. The extent and magnitude of p. 14; Murphy et al. 2006, p. 9), camping believe that they pose a significant the risks, however, is unclear because (LVEA 2006, p. 11), hiking (LVEA 2006, direct competitive threat to the Kearney we have no quantitative information on p. 14), horseback riding (LVEA 2006, p. buckwheat, a long-lived shrub. the overall distribution and abundance 14), pollution (LVEA 2006, p. 14), and Cheatgrass and Russian thistle, of invasive weeds, nor are any data military action (LVEA 2006, p. 14). In however, do create a substantial fuel available on the response of the Kearney addition, in our 90-day petition finding, load that may increase both the buckwheat to fire. The occurrence of the we acknowledged that while large likelihood and frequency of wildfire. buckwheat in a habitat in which fire is fluctuations in size typical of insect Wildfires have not occurred over the naturally rare suggests that it is not fire- populations may make a species with an past 25 years of record at Sand tolerant; the species, however, has an extremely limited distribution, such as Mountain (LVEA 2006, p. 13), and extensive branching caudex (root the Sand Mountain blue butterfly, more wildfires likely have a low natural crown) from a deep woody taproot susceptible to extinction (Ehrlich 1992), frequency in sparsely vegetated dune (Reveal 2002, p. 1), from which it has we are aware of no information that ecosystems. The Sand Mountain been observed to resprout after physical large population fluctuations have ecosystem was rated in fair condition damage to its above-ground shoot occurred, or are likely to occur for this based on the absence of known dune- (Service 1994). It may, therefore, be species. (71 FR 44992, August 8, 2006). stabilizing invasive plants (The Nature intolerant of fire but capable of Although researchers have Conservancy 2004, p. 35). After a surviving it. At this time, therefore, we acknowledged that the large population subsequent visit by a few assessment are aware of no substantial evidence observed in 2006 may have been an team members, however, it was noted that invasive plants or fire currently anomaly, which could have obscured that the abundance of invasive plants pose a significant threat to the habitat or normal patterns of butterfly distribution was much higher than assumed by the viability of the Sand Mountain blue that might suggest a more significant team during the analysis, and it was butterfly. threat to the species than is indicated by possible that they might have Of the remaining potential threats to the 2006 field observation (Murphy et downgraded the rating to poor if they the Sand Mountain blue butterfly, al. 2006, p. 9), they also concluded that had been aware of this information (The camping was identified as such the Sand Mountain blue butterfly Nature Conservancy 2004, p. 37). primarily because it constitutes an numbers were ‘‘substantially above a Vegetation data collected along transects additional source of invasive weeds level that would indicate a need to carry by researchers during the 2006 field (LVEA 2006, p. 11) and is subject to the out in situ or other actions to enhance season, however, show that both the same considerations discussed above. In population size above a critical presence and abundance of Russian addition, the only campground is minimum’’ (Murphy et al. 2006, p. 7). thistle vary spatially, and the invasive located in an area where Kearney weed is absent in many areas; buckwheat once occurred and the Based on this assessment, we believe nevertheless, the researchers found butterfly was first discovered (Austin that the population will remain viable fewer butterflies where Russian thistle 1998), but neither the buckwheat nor into the foreseeable future. was abundant (Murphy et al. 2006, p. 7, the butterfly occur there today so the Of the potential threats cited above, Figure 7). This observation clearly campground itself no longer poses a we consider the interrelated factors of derives from the strong correlation direct threat to the species. Climate invasive weeds and fire to be the most between numbers of the butterfly and change is also a potential threat to the significant. The primary invasive weeds the number of buckwheat shrubs and species (LVEA 2006, p. 14; Murphy et of concern at Sand Mountain are Salsola their inflorescences (Murphy et al. 2006, al. 2006, p. 9), but there is no available tragus (Russian thistle) and Bromus Figure 4). Transect data presented by evidence to evaluate the imminence or tectorum (cheatgrass). Large patches of the researchers appear to show that magnitude of this threat. There is also both species are present in areas along greater abundance of Russian thistle no evidence that pollution or military the periphery of the sand dunes, (and lesser abundance of Kearney action pose a significant threat to the principally in areas where livestock buckwheat) also correlates with a species or its habitat, and their level was water tanks and camping are greater abundance of several other considered so low that they were not permanently located (LVEA 2006, p. plants, including four-wing saltbush, considered in the Conservation Plan 10). Researchers did not find cheatgrass Oenothera deltoides (desert evening- (LVEA 2006, p. 14). to be a dominant species along transects primrose), Rumex venosus (winged Summary of Factor E in 2006 (Murphy et al. 2006, Figure 5). dock), and an unidentified species of The seeds of these invasive weeds can wild buckwheat (Murphy et al. 2006, Annual invasive weeds, the be spread by wind, cattle, and off-road Figure 5). None of these plants are combustible fuels they create, and the vehicle transport (LVEA 2006, p. 11). abundant in areas along the transects potential for wildfires to occur and There is no evidence that these annual where the Kearney buckwheat is increase in frequency, thereby weeds are capable of artificially abundant (Murphy et al. 2006, Figure 5), promoting the increase and stabilizing the dune systems at Sand suggesting the possibility that the establishment of invasive weeds all pose Mountain (The Nature Conservancy particular habitats where these species, a threat to at least some of the habitat 2004, p. 53), and we do not consider including Russian thistle, are dominant of the Sand Mountain blue butterfly. artificial stabilization of the dune may not provide suitable habitat for the The extent and magnitude of this threat, system to be a significant threat to the Kearney buckwheat. however, is unclear because we have no habitat of the Sand Mountain blue We conclude, therefore, that annual quantitative information on the overall butterfly. We are unable to assess the invasive weeds, the combustible fuels distribution and abundance of invasive

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weeds, nor are there any data available climate change, camping, hiking, As specified in PECE (68 FR 15114): on the response of the Kearney horseback riding, pollution, and ‘‘If we make a decision not to list a buckwheat to fire. No substantial military activities pose a significant species or to list the species based in evidence exists to support a conclusion threat to the Sand Mountain blue part on the contributions of a formalized that annual weeds or fire currently pose butterfly. conservation effort, we will track the a significant threat to the habitat or The butterfly exists in only one status of the effort including the viability of the Sand Mountain blue population, and we consider the entire progress of implementation and butterfly. 1,000 ac (405 ha) of dune shrub habitat effectiveness of the conservation effort. Finding to be the current range of the Sand If any of the following occurs: (1) A Mountain blue butterfly; this includes failure to implement the conservation We assessed the best available non-Kearney buckwheat habitat through effort in accordance with the scientific and commercial information which the species passes, including implementation schedule; (2) a failure regarding threats faced by the Sand areas devoid of vegetation such as trails, to achieve objectives; (3) a failure to Mountain blue butterfly. We have as well as areas that support the modify the conservation effort to reviewed the petition, information Kearney buckwheat shrubs on which adequately address an increase in the available in our files, and information the butterfly depends for completion of severity of a threat or to address other submitted to us during the public its life cycle. As described above, new information on threats; or (4) we comment period following our 90-day researchers have found the butterfly receive any other new information petition finding (71 FR 44988; August 8, appears to co-occur with its host plant, indicating a possible change in the 2006). We also consulted with Kearney buckwheat, across the entirety status of the species, then we will recognized butterfly experts and Federal of the shrub’s distribution at Sand reevaluate the status of the species and land managers, and arranged for Mountain, even within small, relatively consider whether initiating the listing researchers to initiate field studies to isolated patches of the shrub (Murphy et process is necessary. Initiating the assess the status of the subspecies and al. 2006, pp. 5–8). We believe, therefore, listing process may consist of establish baseline data against which that the current range of the Sand designating the species as a candidate future changes in the butterfly Mountain blue butterfly approximates species and assigning a listing priority, population can be compared. issuing a proposed rule to list, issuing Based on counts made during the its historical range, although only 50 to a proposed rule to reclassify, or issuing 2006 flight season, hundreds of 60 percent of the entire area of dune an emergency listing rule.’’ thousands of adult Sand Mountain blue shrub habitat is estimated to support butterflies may have been present, a substantial numbers of the Kearney We request that you submit any new number sufficiently large for us to find buckwheat on which the butterfly information concerning the status of, or that habitat loss to date does not pose depends for completion of its life cycle. threats to, this species to our Nevada a significant threat to the subspecies. Because the area in which the Fish and Wildlife Office (see ADDRESSES The only known threat of potential population exists is so small, and there section) whenever it becomes available. future significance to the habitat of the are no unique features of the area, there New information will help us monitor Sand Mountain blue butterfly is the are no areas within the species’ range the species and encourage its gradual destruction by off-road vehicles that are significant portions of the range. conservation. If an emergency situation of the dune shrub habitat containing In addition, the threats to the species are develops for this or any other species, Kearney buckwheat, on which the being addressed across its range, as we will act to provide immediate butterfly depends, and associated described above, such that no area protection. impacts to the reproductive success of continues to face significant threats. the shrub the constant disruption of the Therefore, we find that the Sand References Cited Mountain blue butterfly is not sand surface which interferes with A complete list of all references cited threatened or endangered in all or a seedling establishment. The magnitude herein is available, upon request, from significant portion of its range, and and imminence of the threat posed by the Nevada Fish and Wildlife Office (see listing it under the Endangered Species off-road vehicle recreation to the habitat ADDRESSES section). of the butterfly, however, has been Act is not warranted at this time. reduced by an emergency restriction We will continue to assess the status Author that limits motorized vehicles to a of the butterfly by working with the designated route system that went into BLM, other parties to the Conservation The primary author of this notice is effect on December 12, 2006. We believe Plan, research scientists, and other the Nevada Fish and Wildlife Office (see that implementation of this emergency individuals or groups interested in ADDRESSES). restriction ensures that further habitat contributing to the conservation of this Authority: The authority for this action is destruction is prevented and, over the species. We will particularly focus on section 4 of the Endangered Species Act of long-term, natural shrub regeneration the designated route system and the 1973, as amended (16 U.S.C. 1531 et seq.). and active restoration will ensure that effectiveness of this conservation action Dated: April 26, 2007. the Sand Mountain blue butterfly in eliminating and reducing the threats remains viable. There is no evidence identified to the butterfly over the Randall B. Luthi, that, based on the available information, foreseeable future. In particular, we will Acting Director, U.S. Fish and Wildlife other factors identified as potential closely follow the monitoring results of Service. threats, including large population recreational user compliance with the [FR Doc. E7–8330 Filed 5–1–07; 8:45 am] fluctuations, invasive weeds, wildfire, designated route system. BILLING CODE 4310–55–P

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