Vol. 78 Thursday, No. 182 September 19, 2013

Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Determination of Endangered Species Status for Blue Butterfly; Final Rule

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57750 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

DEPARTMENT OF THE INTERIOR Executive Summary D, and E), as discussed below. Threats This document consists of a final rule facing the Mount Charleston blue Fish and Wildlife Service to list the Mount Charleston blue butterfly increase the risk of extinction butterfly (Plebejus shasta of the subspecies, given its few 50 CFR Part 17 charlestonensis) (formerly in genus occurrences in a small area. The loss and degradation of habitat due to [Docket No. FWS–R8–ES–2012–0069; MO ) as an endangered species. 92210–0–0008 B2] Why we need to publish a rule. Under changes in natural fire regimes and the Act, a species may warrant succession, the implementation of RIN 1018–AY52 protection through listing if it is recreational development projects and endangered or threatened throughout all fuels reduction projects, and the Endangered and Threatened Wildlife or a significant portion of its range. increases in nonnative plants (see Factor and Plants; Determination of Listing a species as an endangered or A discussion) will increase the inherent Endangered Species Status for Mount threatened species can only be risk of extinction of the remaining few Charleston Blue Butterfly completed by issuing a rule. If a species occurrences of the Mount Charleston blue butterfly. Unpermitted and AGENCY: Fish and Wildlife Service, is determined to be an endangered or unlawful collection is a threat to the Interior. threatened species throughout all or a subspecies due to the small number of ACTION: Final rule. significant portion of its range, we are required to promptly publish a proposal discrete populations, overall small SUMMARY: We, the U.S. Fish and in the Federal Register and make a metapopulation size, close proximity to Wildlife Service (Service), determine determination on our proposal within 1 roads and trails, and restricted range endangered species status under the year. Critical habitat shall be designated, (Factor B). These threats are likely to be Endangered Species Act of 1973, as to the maximum extent prudent and exacerbated by the impact of climate amended (Act), for the Mount determinable, for any species change, which is anticipated to increase Charleston blue butterfly (Plebejus determined to be an endangered or drought and extreme precipitation shasta charlestonensis), a butterfly threatened species under the Act. We events (see Factor E). The Mount subspecies from the , will propose to designate critical habitat Charleston blue butterfly is currently in Clark County, . The effect of this for the Mount Charleston blue butterfly danger of extinction because only small regulation will be to add this subspecies under the Act in a separate Federal populations are known to occupy only to the List of Endangered and Register notice. 3 of the 17 historical locations, it may Threatened Wildlife. Based on This rule will finalize the endangered become extirpated in the near future at information gathered from peer status for the Mount Charleston blue 7 other locations presumed to be reviewers and the public during the butterfly. Based on information gathered occupied, and the threats are ongoing comment period, we have determined from peer reviewers and the public and persistent at all known and that it is prudent to designate critical during the comment period, we have presumed-occupied locations. habitat for the Mount Charleston blue determined that it is prudent to We have determined that listing the butterfly. Therefore, we will publish in designate critical habitat for the Mount lupine blue butterfly, Reakirt’s blue a separate Federal Register notice, our Charleston blue butterfly. Therefore, in butterfly, Spring Mountains icarioides proposed designation of critical habitat a separate Federal Register notice, we blue butterfly, and two Spring for the Mount Charleston blue butterfly. will propose to designate critical habitat Mountains dark blue butterflies based on similarity of appearance is no longer DATES: This rule is effective October 21, for the Mount Charleston blue butterfly. 2013. We are not finalizing the threatened advisable and unnecessary because the status for the lupine blue butterfly threat of inadvertent collection and ADDRESSES: This final rule is available (Plebejus lupini texanus), Reakirt’s blue misidentification of the Mount on the Internet at http:// butterfly (Echinargus isola), Spring Charleston blue butterfly will be www.regulations.gov and http:// Mountains icarioides blue butterfly reduced by a closure order issued by the www.fws.gov/nevada. Comments and (Plebejus icarioides austinorum), and U.S. Department of Agriculture’s Forest materials received, as well as supporting two Spring Mountains dark blue Service (Forest Service). The application documentation used in the preparation butterflies (Euphilotes ancilla cryptica processes for Service and Forest Service of this rule, are available for public and Euphilotes ancilla purpura) based collection permits associated with the inspection at http:// on similarity of appearance to the closure order require thorough review of www.regulations.gov. All of the Mount Charleston blue butterfly under applicant qualifications by agency comments, materials, and section 4(e) of the Act. personnel, and we believe only highly documentation that we considered in The basis for our action. Under the qualified individuals capable of this rulemaking are available, by Act, we can determine that a species is distinguishing between small, blue appointment, during normal business an endangered or threatened species butterfly species that occur in the hours at: U.S. Fish and Wildlife Service, based on any of five factors: (A) The Spring Mountains will be issued Nevada Ecological Services Office, 1340 present or threatened destruction, permits. As a result, we do not Financial Boulevard, Suite 234, Reno, modification, or curtailment of its anticipate that individuals with permits NV 89502–7147; (775) 861–6300 habitat or range; (B) overutilization for will misidentify the butterfly species, [phone]; (775) 861–6301 [facsimile]. commercial, recreational, scientific, or and therefore, we do not believe FOR FURTHER INFORMATION CONTACT: educational purposes; (C) disease or inadvertent collection of the Mount Edward D. Koch, Field Supervisor, predation; (D) the inadequacy of Charleston blue butterfly by authorized Nevada Ecological Services Office (see existing regulatory mechanisms; or (E) individuals will occur. In addition, any ADDRESSES). If you use a other natural or manmade factors collection without permits would be in telecommunications device for the deaf affecting its continued existence. We violation of the closure order and (TDD), call the Federal Information have determined that the Mount subject to law enforcement action so any Relay Service (FIRS) at 800–877–8339. Charleston blue butterfly is endangered purposeful, unlawful collection should SUPPLEMENTARY INFORMATION: due to four of these five factors (A, B, also be reduced.

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57751

Peer reviewers commented that ranging Shasta blue butterfly (Plebejus blue, and females are brown with some designating critical habitat would not shasta), which is a member of the blue basally (Opler 1999, p. 251). The increase the threat to the Mount family. Currently, seven subspecies has a row of submarginal Charleston blue butterfly from subspecies of Shasta blue butterflies are black spots on the dorsal side of the collection because those individuals recognized: P. s. shasta, P. s. calchas, P. hind wing and a discal black spot on the interested in collecting Mount s. pallidissima, P. s. minnehaha, P. s. dorsal side of the forewing and hind Charleston blue butterflies would be charlestonensis, P. s. pitkinensis, and P. wing, which when viewed up close able to obtain occurrence locations from s. platazul (Pelham 2008, pp. 25–26, distinguishes it from other small, blue other sources, such as the Internet. 379–380). The Mount Charleston blue butterflies occurring in the Spring Based on these comments, we have butterfly is known only to occur in the Mountains (Austin 1980, pp. 20, 23; determined that designation of critical high elevations of the Spring Boyd and Austin 1999, p. 44). The habitat for the Mount Charleston blue Mountains, located approximately 25 butterfly is prudent. Therefore, miles (mi) (40 kilometers (km)) west of underside of the wings is gray, with a elsewhere in a separate Federal Register Las Vegas in Clark County, Nevada pattern of black spots, brown blotches, notice, we will propose to designate (Austin 1980, p. 20; Scott 1986, p. 410). and pale wing veins, giving it a mottled critical habitat for the Mount Charleston The first mention of the Mount appearance (Opler 1999, p. 251). The blue butterfly. Charleston blue butterfly as a unique underside of the hind wing has an Peer review and public comment. We taxon was in 1928 by Garth (p. 93), who inconspicuous band of submarginal sought comments from knowledgeable recognized it as distinct from the metallic spots (Opler 1999, p. 251). individuals with scientific expertise to species Shasta blue butterfly (Austin Based on morphology, the Mount ensure that our designation is based on 1980, p. 20). Howe (in 1975, Plate 59) Charleston blue butterfly is most closely scientifically sound data, assumptions, described specimens from the Spring related to the Great Basin populations of and analyses. We invited these peer Mountains as the P. s. shasta form the Minnehaha blue butterfly (Austin reviewers to comment on our listing comstocki. However, in 1976, Ferris (p. 1980, p. 23), and it can be distinguished proposal. We also considered all 14) placed the Mount Charleston blue from other Shasta blue butterfly comments and information we received butterfly with the wider ranging subspecies by the presence of a clearer, during the comment period. We Minnehaha blue subspecies. Finally, sharper, and blacker post-median spot received five peer review responses. Austin asserted that Ferris had not row on the underside of the hind wing These peer reviewers generally included specimens from the Sierra (Austin 1980, p. 23; Scott 1986, p. 410). concurred with listing the Mount Nevada Mountains of extreme western Charleston blue butterfly. We also Nevada in his study, and in light of the Distribution received 10 comments from the general geographic isolation and distinctiveness public, including one from a Federal of the Shasta blue butterfly population Based on current and historical agency. All responses provided in the Spring Mountains and the occurrences or locations (Austin 1980, additional information, clarifications, presence of at least three other well- pp. 20–24; Weiss et al. 1997, Map 3.1; and suggestions to improve this final defined races (subspecies) of butterflies Boyd and Murphy 2008, p. 4; Pinyon listing determination. endemic to the area, it was appropriate 2011, Figure 9–11; Thompson et al. 2012, pp. 75–85), the geographic range Background to name this population as a subspecies, P. s. charlestonensis (Austin 1980, p. of the Mount Charleston blue butterfly Previous Federal Actions 20). is in the upper elevations of the Spring On September 27, 2012, we published Our use of the genus name Plebejus, Mountains, centered on lands managed a proposed rule (77 FR 59518) to list the rather than the synonym Icaricia, by the Forest Service in the Spring Mount Charleston blue butterfly as reflects recent treatments of butterfly Mountains National Recreation Area endangered, and the lupine blue (Opler and Warren 2003, p. (SMNRA) of the Humboldt-Toiyabe butterfly, Reakirt’s blue butterfly, Spring 30; Pelham 2008, p. 265). The Integrated National Forest within Upper Kyle and Mountains icarioides blue butterfly, and Taxonomic Information System (ITIS) Lee Canyons, Clark County, Nevada. recognizes the Mount Charleston blue two Spring Mountains dark blue The majority of the occurrences or butterfly as a valid subspecies based on butterflies as threatened due to locations are along the upper ridges in similarity of appearance to the Mount Austin (1980) (Retrieved May 1, 2013, from the Integrated Taxonomic the Mount Charleston Wilderness and in Charleston blue butterfly. Please refer to the Upper Lee Canyon area, while a few that proposed rule for a synopsis of Information System online database, http://www.itis.gov). The ITIS is hosted are in Upper Kyle Canyon. Table 1 lists previous Federal actions concerning the the various locations of the Mount Mount Charleston blue butterfly. A 60- by the U.S. Geological Survey (USGS) Charleston blue butterfly that constitute day comment period following Center for Biological Informatics (CBI) the subspecies’ current and historical publication of the proposed rule closed and is the result of a partnership of on November 26, 2012. Federal agencies formed to satisfy their range. Estimates of population size for mutual needs for scientifically credible the Mount Charleston blue butterfly are Species Information taxonomic information. not available. Although surveys have It is our intent to discuss below only As a subspecies, the Mount varied in methodology, effort, those topics directly relevant to the Charleston blue butterfly is similar to frequency, time of year conducted, and listing of the Mount Charleston blue other Shasta blue butterflies, with a sites visited, the occurrence data butterfly as an endangered species in wingspan of 0.75 to 1 inch (in) (19 to 26 summarized in Table 1 represent the this final rule. millimeters (mm)) (Opler 1999, p. 251). best scientific information on the The Mount Charleston blue butterfly is Taxonomy and Subspecies Description distribution of Mount Charleston blue sexually dimorphic; males and females butterfly and how that distribution has The Mount Charleston blue butterfly occur in two distinct forms. The upper changed over time. is a distinct subspecies of the wider side of males is dark to dull iridescent

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57752 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

TABLE 1—LOCATIONS WHERE THE MOUNT CHARLESTON BLUE BUTTERFLY HAS BEEN DETECTED SINCE 1928, AND THE STATUS OF THE BUTTERFLY AT THOSE LOCATIONS

Most recent First/last survey year(s) Location name time (y = detected, Status Primary references detected n = not detected)

1. South Loop Trail, Upper Kyle Canyon 1928/2012 ... 2007 (y), 2008 (n), Known occupied; adults con- Weiss et al. 1997; Boyd 2006; Weiss et al. 1997. 2010 (y), 2011 sistently observed. Kingsley 2007; SWCA (y), 2012 (y). 2008; Pinyon 2011; Andrew et al. 2013; Thompson et al. 2013. 2. Las Vegas Ski and Snowboard Resort 1963/2012 ... 2007 (n), 2008 (n), Known occupied; adults con- Weiss et al. 1994; Weiss et al. (LVSSR), Upper Lee Canyon. 2010 (y), 2011 sistently observed. 1997; Boyd and Austin (n), 2012 (y). 2002; Boyd 2006; Newfields 2006; Datasmiths 2007; Boyd and Murphy 2008; An- drew et al. 2013; Thompson et al. 2013. 3. Foxtail, Upper Lee Canyon ...... 1995/1998 ... 2006 (n), 2007 (n), Presumed occupied; adults Boyd and Austin 1999; Boyd 2008 (n), 2012 (n). observed less than 20 years 2006; Datasmiths 2007; ago. Boyd and Murphy 2008; An- drew et al. 2013; Thompson et al. 2013. 4. Youth Camp, Upper Lee Canyon ...... 1995/1995 ... 2006 (n), 2007 (n), Presumed occupied; adults Weiss et al. 1997; Boyd 2006; 2008 (n), 2012 (n). observed less than 20 years Datasmiths 2007; Boyd and ago. Murphy 2008; Andrew et al. 2013. 5. Gary Abbott, Upper Lee Canyon ...... 1995/1995 ... 2006 (n), 2007 (n), Presumed occupied; adults Weiss et al. 1997; Boyd 2006; 2008 (n), 2012 (n). observed less than 20 years Datasmiths 2007; Boyd and ago. Murphy 2008; Andrew et al. 2013; Thompson et al. 2013. 6. Lower LVSSR Parking, Upper Lee 1995/2002 ... 2007 (n), 2008 (n), Presumed occupied; adults Weiss et al. 1997; Boyd 2006; Canyon. 2012 (n). observed less than 20 years Datasmiths 2007; Boyd and ago. Murphy 2008; Andrew et al. 2013; Thompson et al. 2013. 7. Mummy Spring, Upper Kyle Canyon .. 1995/1995 ... 2006 (n), 2012 (n) .. Presumed occupied; adults Weiss et al. 1997; Boyd 2006; observed less than 20 years Andrew et al. 2013; Thomp- ago. son et al. 2013. 8. Lee Meadows, Upper Lee Canyon ..... 1965/1965 ... 2006 (n), 2007 (n), Presumed extirpated ...... Weiss et al. 1997; Boyd 2006; 2008 (n), 2012 2 Datasmiths 2007; Boyd and (n). Murphy 2008; Andrew et al. 2013; Thompson et al. 2013. 9. Bristlecone Trail ...... 1990/1995 ... 2007 (n), 2011 (n), Presumed occupied; adults Weiss et al. 1995; Weiss et al. 2012 (n). intermittently observed. 1997; Kingsley 2007; Thompson et al. 2013 An- drew et al. 2013. 10. Bonanza Trail ...... 1995/2012 ... 2006 (n), 2007 (n), Known occupied; adults con- Weiss et al. 1997; Boyd 2006; 2011 (y), 2012 (y). sistently observed. Kingsley 2007; Andrew et al. 2013; Thompson et al. 2013. 11. Upper Lee Canyon holotype ...... 1963/1976 ... 2006 (n), 2007 (n), Presumed extirpated ...... Weiss et al. 1997; Boyd 2006; 2012 1 (n). Datasmiths 2007; Andrew et al. 2013. 12. Cathedral Rock, Kyle Canyon ...... 1972/1972 ... 2007 (n), 2012 1 (n) Presumed extirpated...... Weiss et al. 1997; Datasmiths 2007; Andrew et al. 2013. 13. Upper Kyle Canyon Ski Area ...... 1965/1972 ... 1995 (n), 2012 1 (n) Presumed extirpated...... Weiss et al. 1997; Andrew et al. 2013. 14. Old Town, Kyle Canyon ...... 1970s/1970s 1995 (n), 2012 1 (n) Presumed extirpated ...... The Urban Wildlands Group, Inc. 2005. 15. Deer Creek, Kyle Canyon ...... 1950/1950 ... Unknown, 2012 1 (n) Presumed extirpated ...... Howe 1975; Andrew et al. 2013. 16. Willow Creek ...... 1928/1928 ... 2010 (n),2012 2 ...... Presumed extirpated ...... Weiss et al. 1997; Thompson et al. 2010; Andrew et al. 2013. 17. Griffith Peak ...... 1995/1995 ... 2006 (n), 2012 (n) .. Presumed occupied; adults Weiss et al. 1997; Boyd 2006; observed less than 20 years Andrew et al. 2013. ago. 1 Site was visited in 2012, but was not surveyed due to absence of larval host plants and lack of habitat suitability for Mount Charleston blue butterfly (Andrew et al. 2013, pp. 29–35, 56–57).

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57753

2 Site does not have habitat to support Mount Charleston blue butterfly, but it was surveyed in 2012 because blue butterflies from the sur- rounding area could possibly be observed (Andrew et al. 2013, pp. 51–52, 60).

We presume that the Mount the last 20 years and nectar plants are in 1995, 2002, 2007, 2010, 2011, and Charleston blue butterfly is extirpated present to support Mount Charleston 2012 (Service 2007, pp. 1–2; Kingsley from a location when it has not been blue butterflies, and where there is 2007, p. 5; Pinyon 2011, pp. 17–19; recorded at that location through formal potential for diapausing (a period of Andrew et al. 2013, pp. 20–26); and (2) and informal surveys or incidental suspended growth or development the site supports at least one of the observation for more than 20 years. We similar to hibernation) larvae to be larval host plant species, Astragalus selected a 20-year time period because present because larval host plants are calycosus var. calycosus (Torrey’s it would likely allow for local present (see ‘‘Biology’’ section, below, milkvetch) (Weiss et al. 1997, p. 31; extirpation and recolonization events to for details on Mount Charleston blue Kingsley 2007, pp. 5 and 10; Thompson occur should the Mount Charleston blue butterfly diapause). At some of these et al. 2012, pp. 75–85), and known butterfly function in a metapopulation presumed occupied locations (Locations nectar plants, including Hymenoxys dynamic, and a 20-year time period 4, 5, 7, 9, and 17 in Table 1), the Mount lemmonii (Lemmon’s bitterweed) and would be enough time for succession or Charleston blue butterfly has not been Erigeron clokeyi (Clokey fleabane) other vegetation shifts to render the recorded through formal surveys or (SWCA 2008, pp. 2 and 5; Pinyon 2011, habitat unsuitable (see discussion in informal observation since 1995 by p. 11). This area has been mapped using ‘‘Habitat’’ and ‘‘Biology’’ sections, Weiss et al. (1997, pp. 1–87). Of the a global positioning system unit and below). Using this criterion, the Mount presumed occupied locations, 3 and 6 field-verified. The total area of habitat Charleston blue butterfly is considered have had the most recent observations mapped by Pinyon in 2011 (Pinyon to be ‘‘presumed extirpated’’ from 7 of (observed in 1998 and 2002, 2011, Figure 8; Service 2013, pp. 1–6) at 17 locations (Locations 8 and 11 respectively) (Table 1). In the proposed South Loop Trail location is 190.8 acres through 16 in Table 1) (Service 2006a, rule (77 FR 59518), we did not identify (ac) (77.2 hectares (ha)). The area was pp. 8–9). In the September 27, 2012, Griffith Peak as a location for the Mount delineated into polygons and classified proposed rule (77 FR 59518), we Charleston blue butterfly, but after as poor, moderate, and good habitat identified Lee Meadows to be presumed reviewing the available data, we (Pinyon 2011, p. 11). Most observations occupied. After reviewing the available determined Mount Charleston blue in 2010 and 2011 occurred in two good data, we determined the Mount butterfly had been observed in 1995 at habitat areas totaling 60.1 ac (24.3 ha) Charleston blue butterfly has not been Griffith peak (Weiss et al. 1997, p. 10 (Pinyon 2011). In July 2013, the observed in Lee Meadows since 1965 and Map 3.1); therefore, this location Carpenter 1 Fire burned into habitat of (Weiss et al. 1997, p. 10); therefore, this should be considered presumed the Mount Charleston blue butterfly site should be considered presumed occupied. In July 2013, the Carpenter 1 along the ridgelines between Griffith extirpated. We also consider these sites Fire burned into habitat of the Mount Peak and South Loop spanning a to be historic because they no longer Charleston blue butterfly along the distance of approximately 3 miles (5 have larval host plants or nectar plants ridgelines between Griffith Peak and km). The majority of Mount Charleston to support the Mount Charleston blue South Loop spanning a distance of blue butterfly moderate- or high-quality butterfly (Andrew et al. 2013, pp. 29– approximately 3 miles (5 km). Within habitat in the South Loop Trail location 31, 34–35, 51–52, 56–57, 60). Of the this area there are low, moderate, or was classified as having a low or very remaining 10 locations, 7 locations are high quality patches of Mount low soil burn severity (Kallstrom 2013, ‘‘presumed occupied’’ by the subspecies Charleston blue butterfly habitat p. 4). Adult butterflies may have been (Locations 3 through 7, 9, and 17 in intermixed with non-habitat. The full able to escape the fire, but the full Table 1), and the other 3 are ‘‘known extent of impacts to the habitat and extent of impacts to egg, larval, pupal, occupied’’ (Locations 1, 2, and 10 in Mount Charleston blue butterflies or adult life stages from exposure to Table 1) (Service 2006a, pp. 7–8). In the occurring at the Griffith Peak location lethal levels of smoke, gases, and proposed rule (77 FR 59518), we are unknown, but the vegetation at this convection or radiant heat from the fire identified the Bonanza Trail location site may be unsuitable to support Mount will be unknown until surveys are (Location 10) as presumed occupied. Charleston blue butterflies until the performed on the ground. The areas in Detections of the Mount Charleston blue appropriate plants reestablish. the South Loop Trail location with the butterfly at Bonanza Trail were We consider the remaining three highest density of Mount Charleston confirmed during 2011 and 2012 Mount Charleston blue butterfly blue butterflies may have been surveys (Andrew et al. 2013, pp. 58–59). locations or occurrences to be ‘‘known unaffected by heat and smoke because it Based on this new information, we now occupied’’ (Locations 1, 2, and 10 in was outside the fire perimeter in an area consider the Bonanza Trail area to be a Table 1). Known occupied locations slightly lower in elevation, below a known occupied location by the Mount have had successive observations during topographic crest. Thus, Mount Charleston blue butterfly. We note that multiple years of surveys and have the Charleston blue butterflies in these areas the probability of detection of Mount nectar and larval host plants to support may have received topographic Charleston blue butterflies at a Mount Charleston blue butterflies. The protection as smoke and convective heat particular location in a given year is South Loop Trail, Las Vegas Ski and moved above the area and may have affected by factors other than the Snowboard Resort (LVSSR), and been protected if they were in the soil butterfly’s abundance, such as survey Bonanza Trail are considered to be or among the rocks; however, butterflies effort and weather, both of which are known occupied locations. may have been exposed to lethal radiant highly variable from year to year. The South Loop Trail location is in heat. Damage to larval host and adult The presumed occupied category Upper Kyle Canyon within the Mount nectar plants in unburned, very low, or (Locations 3 through 7, 9, and 17 in Charleston Wilderness. The South Loop low soil burn severity areas has not been Table 1) is defined as a location within Trail location (Location 1 in Table 1) is determined. The South Loop Trail area the known range of the subspecies considered known occupied because: (1) is considered the most important where adults have been observed within The butterfly was observed on the site remaining population area for the

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57754 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

Mount Charleston blue butterfly (Boyd Prior to 1980, the population status of nearly free of canopy cover (Andrew et and Murphy 2008, p. 21). the Mount Charleston blue butterfly was al. 2013, p. 35–37). While larval host We consider the LVSSR location in characterized as usually rare but and nectar plants were present at Youth Upper Lee Canyon (Location 2 in Table common in some years (Austin and Camp, Gary Abbott, and Mummy 1) to be ‘‘known occupied’’ because: (1) Austin 1980, p. 30). A species can be Spring, vegetation at these sites is The butterfly was first recorded at considered rare when its spatial threatened by increased understory and LVSSR in 1963 (Austin 1980, p. 22) and distribution is limited or when it occurs overstory (Andrew et al. 2013, pp. 32– has been consistently observed at in low densities but is potentially 35, 47–49, 52–55). Larval host and LVSSR every year between 1995 and widely distributed (MacKenzie et al. nectar plants are lacking at Lee 2006 (with the exception of 1997 when 2005). Based on this definition, we Meadows (Andrew et al. 2013, pp. 51– no surveys were performed (Service consider the Mount Charleston blue 52). Therefore, these sites, with the 2007, pp. 1–2)), and in 2010 (Thompson butterfly to be rare, because it occurs in exception of Griffith Peak, are or may et al. 2010, p. 5) and 2012 (Andrew et a narrow range of the Spring Mountains soon be considered unsuitable for the al. 2013, p. 41); and (2) the site supports in apparently low densities (Boyd and Mount Charleston blue butterfly. at least one of the known larval host Austin 1999, p. 2). Surveys conducted in 1995 represent plant species, Astragalus calycosus var. The number of locations where the one of the years with the highest calycosus (Weiss et al. 1997, p. 31), and Mount Charleston blue butterfly has number of Mount Charleston blue known nectar plants, including been observed during surveys has butterflies recorded at LVSSR. Two areas of LVSSR were each surveyed Hymenoxys lemmonii and Erigeron decreased in the last 20 years, and the clokeyi (Andrew et al. 2013, pp. 37–47). twice, and 121 Mount Charleston blue number of Mount Charleston blue These areas are LVSSR #1 (17.4 ac (7.0 butterflies were counted and their butterfly observations at one historically ha)) and LVSSR #2 (8.3 ac (3.3 ha)) presence detected at several other important site (i.e., LVSSR) has also (Service 2006a, p. 1; Andrew et. al. locations (i.e., Foxtail, Gary Abbott, declined. Count statistics are products 2013, pp. 79; Service 2013, pp. 1–6), Mummy Spring, Bristlecone Trail, of the detection probability and the which have been mapped using a global Bonanza Trail, South Loop, Griffith number of individuals present in a positioning system unit and field- Peak) (Weiss 1996, p. 4; Weiss et al. survey location (MacKenzie et al. 2005, verified. 1997, Table 2 and Map 3.1). One LVSSR p. 1101). While detection probabilities We consider the Bonanza Trail area was surveyed once in 2002, with an location in Upper Lee Canyon (Location ‘‘may vary with environmental equally high number of Mount 10 in Table 1) to be ‘‘known occupied’’ variables, such as weather conditions; Charleston blue butterflies as recorded because: (1) The butterfly has been different observers; or local habitats’’ in 1995 (Dewberry et al. 2002, p. 8). recorded here in several years in the last (MacKenzie and Kendall 2002, p. 2388), Such high numbers at LVSSR have not 2 decades with the first record from the decrease in observations in recent been recorded since 2002 (Boyd 2006, p. 1995 (Weiss et al. 1997, p. 10) and years is most likely attributable to 1; Datasmiths 2007, p. 18; Andrew et al. subsequent records in 2011 and 2012 decreases in distribution and numbers 2013, pp. 38–47; Thompson et al. 2012, (Andrew et al. 2013, 57–59); and (2) the of Mount Charleston blue butterflies. pp. 76, 77). site supports the larval host plant Year-to-year fluctuations in population In 2006, Boyd (2006, pp. 1–2) species, Astragalus calycosus var. numbers can also occur due to surveyed for Mount Charleston blue calycosus (Weiss et al. 1997, p. 31; variations in precipitation and butterflies at nearly all previously Andrew et al. 2013, p. 57–59), and temperature, which affect both the known locations and within potential known nectar plants, including Erigeron Mount Charleston blue butterfly and its habitat along Griffith Peak, North Loop clokeyi, Hymenoxys lemmonii and larval host plant (Weiss et al. 1997, pp. Trail, Bristlecone Trail, and South Eriogonum umbellatum var. subaridum 2–3 and 31–32). However, the failure to Bonanza Trail, but did not observe the (sulphur-flower buckwheat) (Weiss et detect Mount Charleston blue butterflies butterfly at any of these locations. One al. 1997, p. 11; Andrew et al. 2013, p. at many of the known historical individual butterfly was observed at 57–59). The total area of habitat at the locations during the past 20 years, LVSSR adjacent to a pond that holds Bonanza Trail area that has been especially in light of increased survey water for snowmaking (Newfields 2006, mapped is 50.7 ac (20.5 ha) (Andrew et efforts since 2006, indicates a reduction pp. 10, 13, and C5), but in a later report, al. 2013, p. 87 and 89; Service 2013, pp. in the butterfly’s distribution and a the accuracy of this observation was 1–6). likely decrease in total population size. questioned and considered erroneous Currently, the Mount Charleston blue Furthermore, four additional locations (Newfields 2008, p. 27). In 2007, butterfly is known to persistently may be presumed to be extirpated in the surveys were again conducted in occupy less than 267.1 ac (108.1 ha) of near future, if surveys continue to fail to previously known locations in Upper habitat, and its known current detect Mount Charleston blue Lee Canyon and LVSSR, but no distribution has decreased to a narrower butterflies. These include Youth Camp, butterflies were recorded (Datasmiths range than it historically occupied. Gary Abbott, Mummy Spring, and 2007, p. 1; Newfields 2008, pp. 21–24). Griffith Peak (Table 1). Mount While LVSSR had relatively high Status and Trends Charleston blue butterflies were last counts of Mount Charleston blue Surveys over the years have varied in observed at these sites in 1995 (Weiss et butterflies in the mid-1990s and early methodology, effort, frequency, time of al. 1997), which was considered a good 2000s (121 in 1995 (Weiss 1996, p. 4); year conducted, and sites visited; year (Boyd and Murphy 2008, p. 22) for 67 in 2002 (Dewberry et al. 2002, p. 8)), therefore, we cannot statistically Mount Charleston blue butterflies. Each recent surveys have not yielded such determine population size, dynamics, or of these four sites was surveyed in 2012, high counts, suggesting a decline of trends for the Mount Charleston blue and no Mount Charleston blue Mount Charleston blue butterflies in butterfly. While there is no population butterflies were detected (Andrew et al. this area. In 2010, the Mount Charleston size estimate for the Mount Charleston 2013, pp. 32–37, 47–49, and 52–55). At blue butterfly was observed during blue butterfly, the best available Griffith Peak, larval host and nectar surveys at LVSSR and the South Loop information indicates a declining trend plants are present, and tree and shrub Trail area. One adult was observed in for this subspecies, as discussed below. densities are minimal so that the site is Lee Canyon at LVSSR on July 23, 2010,

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57755

but no other adults were detected at with similar effort, surveyors, and between 1,520 to 3,290 m (5,000 to LVSSR during surveys of two areas methodology. 10,800 ft) (Andrew et al. 2013, pp. 3–4) conducted on August 2, 9, and 18, 2010 in subalpine, bristlecone, and mixed- Habitat (Thompson et al. 2010, pp. 4–5). Mount conifer vegetation communities of the Charleston blue butterflies were not Weiss et al. (1997, pp. 10–11) describe Spring Mountains (Provencher 2008, observed at LVSSR in 2011, and three the natural habitat for the Mount Appendix II). Within the alpine and adults were observed at one of two Charleston blue butterfly as relatively subalpine range of the Mount surveyed areas in 2012 (female on June flat ridgelines above 2,500 meters (m) Charleston blue butterfly, Weiss et al. 27, one female on July 3, and one male (8,200 feet (ft)), but isolated individuals (1997, p. 10) observed the highest on July 11) (Andrew et al. 2013, p. 41). have been observed as low as 2,000 m densities of Astragalus calycosus var. Until 2010, only incidental (6,600 ft). Boyd and Murphy (2008, p. calycosus in exposed areas and within observations of the Mount Charleston 19) indicate that areas occupied by the canopy openings and lower densities in blue butterfly had been recorded at the subspecies featured exposed soil and forested areas. Because the Mount South Loop Trail area, so it is unknown rock substrates with limited or no Charleston blue butterfly’s use of if there have been changes in occupancy canopy cover or shading and flat to mild Astragalus lentiginosus var. kernensis here. However, surveys in recent years slopes. Like most butterfly species, the and Astragalus platytropis as larval host indicate that the South Loop Trail area Mount Charleston blue butterfly is plants is recent, little focus and is an important area for the Mount dependent on plants both during larval documentation of these species in the Charleston blue butterfly. In 2007, two development (larval host plants) and the Spring Mountains have been made. Mount Charleston blue butterflies were adult butterfly flight period (nectar During 2012 surveys, Thompson et al. sighted on two different dates at the plants). The Mount Charleston blue (2013b, presentation) qualitatively same location on the South Loop Trail butterfly requires areas that support observed that Astragalus platytropis is in Upper Kyle Canyon (Kingsley 2007, Astragalus calycosus var. calycosus, fairly rare in the Spring Mountains and p. 5). In 2008, butterflies were not which until recently was thought to be co-occurs with Astragalus lentiginosus, observed during surveys of Upper Lee the only known larval host plant for the while Astragalus calycosus var. Canyon and the South Loop Trail (Boyd subspecies (Weiss et al. 1994, p. 3; calycosus and Astragalus lentiginosus and Murphy 2008, pp. 1–3; Boyd 2008, Weiss et al. 1997, p. 10; Datasmiths var. kernensis are more abundant. p. 1; SWCA 2008, p. 6), although it is 2007, p. 21), as well as primary nectar More information regarding the possible that adult butterflies may have plants, Astragalus calycosus var. been missed on the South Loop Trail calycosus and Erigeron clokeyi; occurrence of Astragalus calycosus var. because the surveys were performed however, butterflies have also been calycosus in the Spring Mountains very late in the season. No formal observed using Hymenoxys lemmonii exists than for Astragalus lentiginosus surveys were conducted in 2009, and and Aster sp. as nectar plants (Boyd var. kernensis and Astragalus during the few informal attempts made 2005, p. 1; Boyd and Murphy 2008, lentiginosus. In 1995, Astragalus to observe the subspecies by Forest p. 9). calycosus var. calycosus plant densities Service biologists, no Mount Charleston The best available habitat information at Mount Charleston blue butterfly sites blue butterflies were observed (Service relates mostly to the Mount Charleston were on the order of 1 to 5 plants per 2009). A total of 63 Mount Charleston blue butterfly’s larval host plant, with square meter (Weiss et al. 1997, p. 10). blue butterflies were counted in this little information available Weiss et al. (1997, p. 31) stated that area in 2010, with the highest count of characterizing the butterfly’s plant densities in favorable habitat for 17 occurring on July 28 (Pinyon 2011, interactions with its known nectar the Mount Charleston blue butterfly p. 17). In 2011, a total of 55 Mount plants or other elements of its habitat. could exceed more than 10 plants per Charleston blue butterflies were The Mount Charleston blue butterfly has square meter of Astragalus calycosus documented at the South Loop Trail most frequently been documented using var. calycosus. Thompson et al. (2012, area, with the highest count of 25 Astragalus calycosus var. calycosus as p. 84) documented an average of 41 occurring on August 11 (Thompson et its larval host plant (Weiss et al. 1997, Astragalus calycosus var. calycosus al. 2012, pp. 77, 80). In 2012, 94 Mount p. 10). In 2011 and 2012, researchers plants per square meter at the South Charleston blue butterflies were counted from the University of Nevada Las Vegas Loop Trail location where the majority during all surveys, with a high count of observed female Mount Charleston blue of recent Mount Charleston blue 34 recorded on July 9 (Andrew et al. butterflies landing on and exhibiting butterflies has been documented. Weiss 2013, p. 22). pre-oviposition behavior on Astragalus et al. (1995, p. 5) and Datasmiths (2007, Based on the available survey calycosus var. calycosus, Astragalus p. 21) indicate that, in some areas, information, multiple Mount Charleston lentiginosus var. kernensis, and butterfly habitat may be dependent on blue butterfly locations are currently Astragalus platytropis (Andrew et al. old or infrequent disturbances that considered extirpated, and several more 2012, p. 3). Andrew et al. (2013, p. 5) create open understory and overstory. locations may be considered extirpated also documented Mount Charleston blue Overstory canopy within patches if sightings are not made in upcoming butterfly eggs on all three of these plant naturally becomes higher over time surveys. Currently, three sites are species and state that, unless it can be through succession, increasing shade known to be occupied, with LVSSR demonstrated that larvae are unable to and gradually becoming less favorable having much lower counts in recent develop and survive on the latter two to the butterfly. Therefore, we conclude years than prior to 2003. At the majority species, these field observations that open areas with visible mineral soil of the presumed occupied locations, the indicate that the Mount Charleston blue and relatively little grass cover and high Mount Charleston blue butterfly has not butterfly utilizes a minimum of three densities of larval host plants support been observed since the mid- to late- larval host plants. the highest densities of butterflies (Boyd 1990s. These trends likely reflect a Astragalus calycosus var. calycosus, 2005, p. 1; Service 2006b, p. 1). During decrease in the distribution and Astragalus lentiginosus var. kernensis, 1995, an especially high-population population size of the Mount Charleston and Astragalus platytropis are small, year (a total of 121 butterflies were blue butterfly and may be confirmed low-growing, perennial herbs that have counted during surveys of two areas at with repeated surveys of the same sites been observed growing in open areas LVSSR on two separate dates (Weiss

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57756 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

1996, p. 4)), Mount Charleston blue factor for the Mount Charleston blue diapause at the base of its larval host butterflies were observed in small butterfly. Both host and nectar plants for plant or in the surrounding substrate habitat patches and with open the Mount Charleston blue butterfly are (Emmel and Shields 1978, p. 132). The understory and overstory where present at the locations we consider Shasta blue butterfly diapauses as an Astragalus calycosus var. calycosus was presumed occupied (Table 1), whereas egg the first winter and as a larvae near present in low densities, on the order of the vegetation at the presumed maturity the second winter (Ferris and 1 to 5 plants per square meter (Weiss et extirpated locations no longer includes Brown 1981, pp. 203–204; Scott 1986, p. al. 1997, p. 10; Newfields 2006, pp. 10 host or nectar plants sufficient to 411); however, Emmel and Shields and C5). Therefore, areas with lower support the subspecies (Andrew et al. (1978, p. 132) suggested that diapause densities of the larval host plant may 2013, pp. 5–65). While host and nectar was passed as partly grown larvae, also be important to the subspecies, as plants are relatively abundant at the because freshly hatched eggshells were these areas may be intermittently presumed occupied locations of Foxtail, found near newly laid eggs (indicating occupied or may be important for Youth Camp, Gary Abbott, and LVSSR, that the eggs do not overwinter). dispersal. these locations are threatened by forest Prolonged or multiple years of diapause Lack of fire and management practices canopy growth and encroachment has been documented for several have likely limited the formation of new (Andrew et al. 2012, p. 45 Andrew et al. butterfly families, including Lycaenidae habitat for the Mount Charleston blue 2013, pp. 47–54). Lee Meadows, (Pratt and Emmel 2010, p. 108). For butterfly, as discussed below. The Cathedral Rock, Upper Lee Canyon example, the pupae of the variable Forest Service began suppressing fires holotype, Upper Kyle Canyon Ski Area, checkerspot butterfly (Euphydryas on the Spring Mountains in 1910 (Entrix Old Town, Deer Creek, and Willow chalcedona, which is in the Nymphalid 2008, p. 113). Throughout the Spring Creek are presumed extirpated (Table 1) family) are known to persist in diapause Mountains, the less-open areas, and and have limited or entirely lack Mount up to 5 to 7 years (Scott 1986, p. 28). higher density of trees and shrubs that Charleston blue butterfly host or nectar The number of years the Mount are currently present, are likely due to plants (Andrew et al. 2013, pp. 29–60). Charleston blue butterfly can remain in a lack of fire, which has been While vegetation conditions in the past diapause is unknown. Boyd and documented in a proximate mountain at these sites are not well-documented, Murphy (2008, p. 21) suggest the Mount range (Amell 2006, pp. 2–3). Other we presume that they contained host Charleston blue butterfly may be able to successional changes that have been and nectar plants for the Mount delay maturation during drought or the documented include increased forest Charleston blue butterfly because shortened growing seasons that follow area and forest structure (higher canopy individuals of the subspecies were winters with heavy snowfall and late cover, more young trees, and expansion observed at these locations. The snowmelt by remaining as eggs. Experts of species less tolerant of fire) vegetation at the majority of these sites have hypothesized and demonstrated (Nachlinger and Reese 1996, p. 37; is not likely to be suitable for the Mount that, in some species of , a Amell 2006, pp. 6–9; Boyd and Murphy Charleston blue butterfly without prolonged diapause period may be 2008, pp. 22–28; Denton et al. 2008, p. substantial changes (Andrew et al. 2013, possible in response to unfavorable 21; Abella et al. 2012, pp. 128, 130). All pp. 29–60), and therefore, restoration of environmental conditions (Scott 1986, of these changes result in an increase in these sites may be cost-prohibitive. pp. 26–30; Murphy 2006, p. 1; vegetative cover that is generally less Astragalus calycosus var. calycosus has Datasmiths 2007, p. 6; Boyd and suitable for the Mount Charleston blue been successfully germinated during lab Murphy 2008, p. 22), and this has been butterfly. Boyd and Murphy (2008, pp. experiments (Thompson et al. 2013a, hypothesized for the Mount Charleston 23, 25) hypothesized that the loss of pp. 244–265); however, we currently do blue butterfly as well (Thompson et al. presettlement vegetation structure over not have information on whether or not 2013b, presentation). Little has been time has caused the Mount Charleston germinated plants can successfully be confirmed regarding the length of time blue butterfly’s metapopulation transplanted to restoration sites. or life stage in which the Mount dynamics to collapse in Upper Lee Therefore, we do not consider Charleston blue butterfly diapauses. Canyon. Similar losses of suitable substantial restoration of sites to be a The typical flight and breeding period butterfly habitat in woodlands and their feasible option. The vegetation at Upper for the butterfly is early July to mid- negative effect on butterfly populations Lee Canyon holotype does have diffuse August with a peak in late July, have been documented (Thomas 1984, Astragalus calycosus var. calycosus although the subspecies has been pp. 337–338). The disturbed landscape present (Andrew et al. 2013, p. 56–57) observed as early as mid-June and as at LVSSR provides important habitat for and could be suitable for restoration late as mid-September (Austin 1980, p. the Mount Charleston blue butterfly with nectar plant species. Overall, the 22; Boyd and Austin 1999, p. 17; Forest (Weiss et al. 1995, p. 5; Weiss et al. number of locations with suitable Service 2006, p. 9). As with most 1997, p. 26). Periodic maintenance vegetation to support Mount Charleston butterflies, the Mount Charleston blue (removal of trees and shrubs) of the ski blue butterflies is limited and appears to butterfly typically flies during sunny runs has effectively arrested forest be declining due to a lack of disturbance conditions, which are particularly succession on the ski slopes and serves to set back succession. important for this subspecies given the to maintain conditions favorable to the cooler air temperatures at high Mount Charleston blue butterfly, and to Biology elevations (Weiss et al. 1997, p. 31). its host and nectar plants. However, the Specific information regarding Excessive winds also deter flight of most ski runs are not specifically managed to diapause of the Mount Charleston blue butterflies, although Weiss et al. (1997, benefit habitat for this subspecies, and butterfly is lacking, and while p. 31) speculate that this may not be a operational activities regularly modify geographic and subspecific variation in significant factor for the Mount Mount Charleston blue butterfly habitat life histories can vary, we present Charleston blue butterfly given its low- or prevent larval host plants from information on the diapause of the to-the-ground flight pattern. reestablishing in disturbed areas. closely related Shasta blue butterfly, as Like all butterfly species, both the An increase in forest canopy growth it may be similar to the Mount phenology (timing) and number of and encroachment, and lack of host or Charleston blue butterfly. The Shasta Mount Charleston blue butterfly nectar plants, seems to be a limiting blue butterfly is generally thought to individuals that emerge and fly to

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57757

reproduce during a particular year are reproduction. This could account for 34270), we solicited expert opinion reliant on the combination of many periodic high numbers of butterflies from five knowledgeable individuals environmental factors that may observed at more sites, as was with scientific expertise that included constitute a successful (‘‘favorable’’) or documented by Weiss et al. in 1995, familiarity with butterflies of the Spring unsuccessful (‘‘poor’’) year for the than years with unfavorable conditions. Mountains, including the Mount subspecies. Other than observations by This would also suggest that Mount Charleston blue butterfly, and their surveyors, little information is known Charleston blue butterfly locations habitat, biological needs, and threats. regarding these aspects of the function as fairly isolated We received responses from all five of subspecies’ biology, since the key metapopulations and are not dependent the peer reviewers. determinants for the interactions among on recolonization to persist. Additional We reviewed all comments we the Mount Charleston blue butterfly’s future research regarding diapause received from the peer reviewers for flight and breeding period, larval host patterns of the Mount Charleston blue substantive issues and new information plant, and environmental conditions butterfly is needed to further our regarding the listing of the Mount have not been specifically studied. understanding of this subspecies. Charleston blue butterfly as endangered Observations indicate that above- or Summary of Comments and and the lupine blue, Reakirt’s blue, below-average precipitation, coupled Recommendations Spring Mountains icarioides blue, and with above- or below-average the two Spring Mountains dark blue temperatures, influence the phenology In the proposed rule published on butterflies as threatened due to of this subspecies (Weiss et al. 1997, pp. September 27, 2012 (77 FR 59518), we similarity of appearance to the Mount 2–3 and 32; Boyd and Austin 1999, p. requested that all interested parties Charleston blue butterfly. Generally, the 8) and are likely responsible for the submit written comments on the reviewers agreed with the need for fluctuation in population numbers from proposal by November 26, 2012. We listing the Mount Charleston blue year to year (Weiss et al. 1997, pp. 2– also contacted appropriate Federal and butterfly, but disagreed with certain 3 and 31–32). State agencies, scientific experts and aspects of the threats assessment. Two organizations, and other interested of the peer reviewers were in opposition Most butterfly populations exist as parties and invited them to comment on regional metapopulations (Murphy et al. to the proposed listing of the five other the proposal. Newspaper notices butterflies due to similarity of 1990, p. 44). Boyd and Austin (1999, pp. inviting general public comment were 17, 53) suggest this is true of the Mount appearance; one peer reviewer was in published in the Las Vegas Review- support; and two peer reviewers were Charleston blue butterfly. Small habitat Journal and the Las Vegas Business patches tend to support smaller neutral on this topic. All reviewers Press on October 13, 2012. We did not offered additional information, butterfly populations that are frequently receive any requests for a public extirpated by events that are part of clarifications, and suggestions to hearing. improve the final rule. We also received normal variation (Murphy et al. 1990, p. During the comment period for the 10 comments from the general public, 44). According to Boyd and Austin proposed rule, we received 15 comment including one from a Federal agency. (1999, p. 17), smaller colonies of the letters directly addressing the proposed Peer reviewer and public comments are Mount Charleston blue butterfly may be listing of Mount Charleston blue addressed in the following summary ephemeral in the long term, with the butterfly with endangered status and the and incorporated into the final rule as larger colonies of the subspecies more lupine blue butterfly, Reakirt’s blue likely than smaller populations to butterfly, Spring Mountains icarioides appropriate. persist in ‘‘poor’’ years, when blue butterfly, and the two Spring Peer Reviewer and Public Comments environmental conditions do not Mountains dark blue butterflies with support the emergence, flight, and threatened status due to similarity of Comments Related to the Background reproduction of individuals. The ability appearance to the Mount Charleston Section of the Mount Charleston blue butterfly blue butterfly, with a section 4(d) (1) Comment: Two peer reviewers and to move between habitat patches has not special rule, under section 4(e) of the five commenters stated that the been studied; however, field Act (16 U.S.C. 1531 et seq.). We methodology, effort, surveyor abilities, observations indicate the subspecies has received 5 individual peer review and time of year of the butterfly surveys low vagility (capacity or tendency of a responses and 10 comment letters from have been variable over the years, and, species to move about or disperse in a the public, including one Federal therefore, the results from these surveys given environment), on the order of 10 agency. With general regard to listing cannot be used to determine population to 100 m (33 to 330 ft) (Weiss et al. the Mount Charleston blue butterfly, 10 trends and abundance of the Mount 1995, p. 9), and nearly sedentary comment letters were in support of the Charleston blue butterfly. behavior (Datasmiths 2007, p. 21; Boyd listing, with 4 fully supporting the basis Our Response: We agree that the and Murphy 2008, pp. 3, 9). for the listing, and 6 supporting only survey methodology, effort, surveyor Furthermore, dispersal of lycaenid certain aspects related to the listing. ability, and time of year when surveys butterflies, in general, is limited and on Five comment letters did not support were conducted have been variable over the order of hundreds of meters listing the Mount Charleston blue the years and do not allow us to (Cushman and Murphy 1993, p. 40). butterfly. With regard to listing the five quantitatively estimate changes in the Based on this information, the butterflies due to the similarity of population size of the Mount Charleston likelihood of long-distance dispersal is appearance, 3 letters were in support, 10 blue butterfly. We agree that improving low for the Mount Charleston blue letters were in opposition, and 2 letters the consistency of these surveys would butterfly. Thompson et al. (2013b, were neutral. All substantive increase our understanding of the presentation) have hypothesized that information provided during the dynamics and population trends of the the Mount Charleston blue butterfly comment period has either been subspecies. Because of these could diapause for multiple years (more incorporated directly into this final shortcomings in the data collection, we than 2) as larvae and pupae until determination or is addressed below. place more importance on the vegetation conditions are favorable to In accordance with our peer review occupancy status and vegetation support emergence, flight, and policy published on July 1, 1994 (59 FR suitability at Mount Charleston blue

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57758 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

butterfly locations, both of which have subspecies and its distribution. We agreement and 2004 memorandum of decreased, in determining its overall agree that much larger fires could understanding between the Forest status than the number of butterflies increase the spread of invasive species Service and the Service have not been that were observed. We maintain that and that fuel and fire management fully implemented and adhered to, and, because several historical Mount strategies must be considered carefully further, how listing the butterflies will Charleston blue butterfly locations are prior to implementation. rectify future coordination between the no longer suitable and no new locations (4) Comment: One commenter Forest Service and the Service. have been identified, it is likely the suggested that too little information is Our Response: More than half of the Mount Charleston blue butterfly available to determine what the actual past projects that impacted Mount population has decreased. threats to the Mount Charleston blue Charleston blue butterfly habitat were (2) Comment: One peer reviewer butterfly are and that more research is reviewed by the Service and Forest suggested that the South Loop Trail area needed. Service under a process that was is the only location that should be Our Response: We agree that more developed and agreed to in the SMNRA considered occupied by the Mount research on the Mount Charleston blue conservation agreement; however, the Charleston blue butterfly, but that other butterfly would provide further insight review process on several projects was areas may be important for recovery of into how particular threats affect the never initiated. Listing the Mount the subspecies. subspecies and its habitat. Although Charleston blue butterfly as an Our Response: We agree that other many of the threats are interrelated and endangered species requires the Forest areas will be important for the recovery confounding, the threats presented in Service to consult on all projects that of the subspecies, but we disagree that this rule, as demonstrated by the best they authorize, fund, or carry out that the South Loop Trail area is the only available scientific and commercial data may affect the subspecies. location that should be considered available, have contributed to the occupied by the Mount Charleston blue decreasing distribution and likely Comments Related to Factor B butterfly. The Mount Charleston blue population decline of the Mount (8) Comment: Three peer reviewers butterfly has been repeatedly observed Charleston blue butterfly. and several commenters did not agree in three areas in recent years, including (5) Comment: One peer reviewer that the evidence in the proposed rule the South Loop Trail, Bonanza Trail, stated that personnel coordination indicated that collection, commercial or and the LVSSR (see ‘‘Distribution’’ and between the Service and the Forest noncommercial, has or will be a threat ‘‘Status and Trends’’ sections, above, for Service seems to be inadequate and to the Mount Charleston blue butterfly more details). Additionally, Mount could be improved by engaging an or its long-term survival. Charleston blue butterflies have been independent, impartial group [to Our Response: We provided a observed over the last several decades at mediate future discussions]. thorough and detailed description of the both the Bonanza Trail and LVSSR Our Response: Overall, the Service best available scientific and commercial areas. These repeated detections over and Forest Service coordinate closely, information available regarding the multiple years indicate the sites are and this coordination has improved in threat posed by collection in the occupied by the Mount Charleston blue recent years. While there have been proposed rule. In addition, we believe butterfly. lapses in coordination (see Factor A that it is necessary to fully discuss the discussion, below), these incidents have many activities that go beyond Comments Related to Factor A been exceptions. We appreciate the collection for scientific research. (3) Comment: We received many suggestion, and although we do not Because the evidence of collection of comments regarding threats to the anticipate it being necessary, we will the Mount Charleston blue butterfly is Mount Charleston blue butterfly from consider seeking an independent, limited, we compare to other listed or peer reviewers and commenters. Two impartial group if future coordination imperiled butterflies, including those on peer reviewers stated that general loss of should require this. protected lands, to evaluate the impact habitat is the greatest threat to the (6) Comment: One peer reviewer of illegal and illicit activities, and the Mount Charleston blue butterfly. One suggested that future Forest Service establishment of markets for specimens, peer reviewer suggested that listing the projects could be modified in order to on those species and subspecies. We Mount Charleston blue butterfly would avoid negatively affecting the Mount have determined that poaching is a not alleviate the most significant threats Charleston blue butterfly. This reviewer potential and significant threat that to the butterfly. Other threats to the also stated that interagency consultation could occur at any time. We recognize Mount Charleston blue butterfly and its could improve the implementation of that listing may inadvertently increase habitat that were identified by peer fire suppression efforts by the Forest the threat of collection and trade (i.e., reviewers and commenters included fire Service. raise value, create demand). However, management or the lack of fire; the Our Response: With the listing of the we acknowledge that most individuals presence and spread of nonnative Mount Charleston blue butterfly as who are interested in butterflies would plants; development, including roads, endangered, the Forest Service will be follow guidelines and procedures to recreation projects, the LVSSR, and required to consult with the Service ensure responsible collecting of commercial and residential buildings; under section 7(a)(2) of the Act to sensitive species. and wild horses. One peer reviewer was ensure that activities it authorizes, (9) Comment: One peer reviewer concerned that, given the current forest funds, or carries out are not likely to stated that, given where the Mount conditions, small, ‘‘controlled’’ fires jeopardize the continued existence of Charleston blue butterfly tends to occur, could result in much larger fires and the subspecies. Additionally, we will it is unlikely that it would be collected lead to more widespread effects than continue to coordinate with the Forest by individuals with little experience fire suppression and fuels management. Service on future projects, including who do not know what they are Our Response: We agree that the fuels and fire management projects, as is catching, and that inexperienced threats to the Mount Charleston blue provided under the current SMNRA individuals typically are not effective at butterfly and its habitat identified by the conservation agreement. capturing butterflies and would be peer reviewers and commenters have (7) Comment: One commenter wanted unable to collect so intensively that a contributed to the decline of the to know why the 1998 conservation population-level effect was plausible.

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57759

Our Response: Mount Charleston blue Beyond this, we are unaware of Comments Related to Listing Because of butterflies do occur in easily accessible additional outreach the Forest Service Similarity of Appearance Under Section locations, including areas at the LVSSR made. We agree this lack of outreach 4(e) of the Act and the Associated and Bonanza Trail. Staff of the LVSSR likely led to unknowing, unpermitted Section 4(d) Special Rule have anecdotally relayed to the Service collection of butterflies, including the (14) Comment: Four peer reviewers that they have seen people apparently Mount Charleston blue butterfly. We and eight commenters opposed listing collecting butterflies on the ski slopes anticipate the outreach for the new the five other butterflies due to and have been asked on which ski runs Forest Service closure order will be similarity of appearance, as proposed, the Mount Charleston blue butterfly much wider and more available. Per for a variety of reasons. The proposed occurs. We acknowledge that a less Code of Federal Regulations (CFR) action was generally opposed because it experienced butterfly collector may regulations at 36 CFR 261.51, the Forest was thought that the species can be have more difficulty capturing a Mount Service is required to: (1) Post a copy of readily discerned by differences in Charleston blue butterfly than an the closure order in the offices of the coloration and markings, size, and flight experienced person, but these less Forest Supervisor and District Ranger pattern, and because they are not fully experienced individuals may also more who have jurisdiction of the lands sympatric, or overlapping in their easily mistake the Mount Charleston affected by the order, and (2) display ranges (they occur in distinct habitats, blue butterfly for another butterfly each prohibition imposed by an order in they occur in close association with species. We maintain that because the such locations and manner as to different plant species, and they occur Mount Charleston blue butterfly occurs reasonably bring the prohibition to the at different mean elevations). In general, in low numbers and so little is known attention of the public. In addition to those in opposition to the similarity of about its population dynamics, fulfilling these requirements, the Forest appearance proposed listings believed collection at low levels could pose a Service intends to post information on that people with even moderate threat to the subspecies. the closure order on its Web site (http:// (10) Comment: One peer reviewer experience with butterflies would be www.fs.usda.gov/alerts/htnf/alerts- able to distinguish between the species. thought Table 2 in the proposed rule, notices), at kiosks and trailheads in the which summarized the numbers of Those in opposition also generally Spring Mountains, and on the Internet believed that listing similar butterflies Mount Charleston blue butterfly at Lepidopterist message boards, such as specimens collected by area, year, and would be overly restrictive and http://pets.groups.yahoo.com/group/ prohibitive, impede research, and sex, did not support the argument that DesertLeps/ and http:// collection has negatively impacted the discourage scientific support that could pet.groups.yahoo.com/group/ inform future management decisions or subspecies, because the commenter SoWestLep/. thought it underrepresented the number listing actions. One comment letter of Mount Charleston blue butterflies Comments Related to Factor E included photographs of the five that have been collected. butterflies proposed for listing with Our Response: We acknowledge the (12) Comment: Two peer reviewers detailed descriptions of characteristics information presented in the proposed identified a need to provide more site- that may be used to distinguish the five rule’s Table 2 may under-represent the specific evidence of how climate change butterflies from each other. Others total number of Mount Charleston blue is affecting Mount Charleston blue provided textual descriptions of the butterflies that have been collected; not butterfly habitat. diagnostic characteristics of the all collectors document all collected Our Response: We agree that site- butterflies. butterflies in records that are available specific information about climate Our Response: We carefully to the Service. We presented the best change and its effects on Mount considered all of the comments we scientific and commercial information Charleston blue butterfly should be received, reviewed the information and on collection that was available to the included if it is available. However, site- data provided by reviewers and Service. We maintain that unregulated specific information on climate change commenters, and evaluated recent collection has contributed to the decline and its effects on the Mount Charleston research and data we have acquired of multiple butterfly species (see Factor blue butterfly and its habitat is not since the proposed rule was published. B discussion, below, for more details), available at this time. Any information We used data on the historical range of and could contribute to the decline of that is available that would improve our the five species proposed for listing the Mount Charleston blue butterfly analyses of the effects of climate change under similarity of appearance, and when coupled with habitat loss and on the Mount Charleston blue butterfly reported this information in our other threats. may be sent to the Nevada Ecological proposed rule (77 FR 59518; September (11) Comment: One peer reviewer and Services Office (see ADDRESSES, above). 27, 2012). Since then, we have one commenter stated that there needs evaluated more current range to be better publicity regarding the need (13) Comment: One commenter information on these five species, and for permits to collect butterflies in the suggested that climate change or global we find that the current known ranges Spring Mountains, and many people warming will extirpate the Mount of some of the species previously who may be collecting may be unaware Charleston blue butterfly in the Spring proposed for listing under similarity of of the permit requirement. Mountains (this would imply appearance do not overlap or do not Our Response: We agree that the extinction). significantly overlap with the range of outreach regarding the Forest Service’s Our Response: We agree that the the Mount Charleston blue butterfly, so requirement for a permit to collect Mount Charleston blue butterfly is at it would not be advisable to list these butterflies in the Lee Canyon, Kyle greater risk of extinction because of species under section 4(e) of the Act. In Canyon, Willow Creek, and Cold Creek climate change, but there is no addition, since the closure order closes areas of SMNRA has generally been information to suggest that extinction is most of the known range of the Mount lacking. This requirement is stated in imminent only because of climate Charleston blue butterfly to all butterfly the Forest Service’s Humboldt-Toiyabe change. Threats related to climate collection, it is closed to the collection General Management Plan, which is not change are discussed under Factor E, of all five of these species as well. widely available to the general public. below. Therefore, listing the additional

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57760 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

similarity of appearance species is no because they are USFS sensitive species. application processes for a Service- longer necessary because collection of It provides additional protection to the issued section 10(a)(1)(A) permit and a these species will not take place in the Mount Charleston blue butterfly by Forest Service collection permit require range of the Mount Charleston blue prohibiting possession and storage of thorough review of applicant butterfly without a permit. Permitted Mount Charleston blue butterfly qualifications by agency personnel, we individuals will have the qualifications throughout the SMNRA, allowing Forest believe only highly qualified that enable them to differentiate Service law enforcement officers to individuals capable of distinguishing between the species. enforce this prohibition within the between small, blue butterfly species Further, as one peer reviewer stated, SMNRA. The second part of the closure that occur in the Spring Mountains will whether the taxa are similar in order closes the vast majority of the be issued permits. As a result, we do not appearance is highly subjective. We habitat where the Mount Charleston anticipate that individuals with permits agree with this statement. We agree that blue butterfly occurs to the possession, will misidentify the butterfly species, individuals who are more experienced storing and transport of all butterfly and therefore, no inadvertent collection with butterflies would be able to species in any life stage. This effectively by authorized individuals will occur. differentiate between the butterfly eliminates the risk of unintentional Any collection without permits would species. As described in the proposed collection of the Mount Charleston blue be in violation of the closure order and rule, there are morphological differences butterfly in two ways: (1) the Forest subject to law enforcement action. In between the species, but the Service cannot issue a permit for addition, any purposeful collection of a distinguishing characteristics may not collection of the Mount Charleston blue listed species, such as Mt Charleston be obvious to all individuals who are butterfly without the Service’s blue butterfly, without a section 10 collecting butterflies; thus, the concurrence (which we will not do permit authorizing this activity, would similarity between the species is relative unless we know the researcher and the be a violation of the Act. Therefore, the to the experience level and abilities of work is authorized by the Service), and threat from incidental, accidental, or the observer. (2) anyone wanting to collect any purposeful, unlawful collection of the We believe that the threat of the butterfly species in this area (including Mount Charleston blue butterfly will be mistaken capture and collection of any of the species proposed for listing reduced (see Factor B discussion, below, Mount Charleston blue butterfly has under similarity of appearance) would for more details). been reduced by a closure order and need to demonstrate their credentials, The main goal of proposing other administrative permitting process including the ability to clearly butterfly species for listing under recently issued by the Forest Service. distinguish blue butterfly species, to the similarity of appearance was to afford This closure order (Order Number 04– Forest Service, before they would issue regulatory protection to the Mount 17–13–20) closes all areas within the a permit. In summary, these Charleston blue butterfly in potential Spring Mountain National Recreation requirements should effectively situations of misidentification of the Area to the collection, possession, eliminate the unintentional collection of Mount Charleston blue butterfly as one storage, or transport of the Mount the Mount Charleston blue butterfly, of the other five species, in order to Charleston blue butterfly and four other because only those individuals with the prevent the subspecies from going sensitive butterfly species (Morand’s demonstrated ability to identify and extinct. We recognize and acknowledge checkerspot [Euphydryas anicia distinguish butterfly species (including that amateurs and professionals morandi], Spring Mountains acastus interested in butterflies have made two of the butterfly species similar in checkerspot [Chlosyne acastus robusta], significant contributions to our appearance originally proposed to be and the two subspecies of Spring knowledge of the Mount Charleston listed) would be eligible for a permit to Mountains dark blue butterflies blue butterfly and other butterfly collect butterflies within most of the of [Euphilotes ancilla cryptica and species that occur in the Spring the known range of the Mount Euphilotes ancilla purpura]). The Mountains. We do not want to Charleston blue butterfly. closure order provides additional discourage research or scientific support protections by closing most of the The Forest Service permit does not for the Mount Charleston blue butterfly known range of the Mount Charleston allow the collection of any species listed or other butterfly species that occur in blue butterfly to the collection of all under the Act, including the Mount the Spring Mountains. As described butterfly species, except under a Charleston blue butterfly being added to above, listing does not prohibit specific permit. Permits to collect non- the Lists of Endangered and Threatened conducting research on the Mount listed butterflies in these areas may be Species by this rule. Permits to collect Charleston blue butterfly; the section issued by the Forest Service through the the Mount Charleston blue butterfly, as 10(a)(1)(A) permit process ensures that administrative permit process. This well as any other endangered or those that are interested in conducting process requires applicants to provide threatened species, requires a section research are qualified to work with this information regarding their 10(a)(1)(A) permit issued by the Service; butterfly subspecies and have research qualifications and experience with the section 10(a)(1)(A) permit process objectives that will enhance the survival butterflies and intended uses of the ensures that those that are interested in of the subspecies. permit, including the specific purpose conducting research, which may (15) Comment: One commenter stated of collection; a list of which species will include collection for scientific that these subspecies occur in disjunct be collected; the number of each sex and purposes, are qualified to work with this areas away from the Mount Charleston life stage for each species that will be butterfly subspecies and have research blue butterfly, and one peer reviewer collected; a list of locations where objectives that will enhance the survival and one commenter suggested that the collection would occur; the time period of the subspecies. Individuals who are only two taxa that realistically might be in which collection would occur; and issued a section 10(a)(1)(A) permit to difficult to distinguish from the Mount how the information and knowledge research the Mount Charleston blue Charleston blue butterfly are the two gained from the collection will be butterfly may then apply for a collection subspecies of Euphilotes ancilla. disseminated (Ramirez, 2013). The permit from the Forest Service if such Our Response: We considered this entire SMNRA is closed to possession, research activities will be conducted on comment, and we reviewed historical storing or transport of these five species, Forest Service lands. Because the and recent sightings of the two Spring

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57761

Mountains dark blue butterfly prohibit their collection, and not extend detail could be obtained from other subspecies (Euphilotes ancilla cryptica to otherwise lawful activities. sources for potential poachers to locate and Euphilotes ancilla purpura) and the Our Response: We agree that, had we remaining populations. Mount Charleston blue butterfly. finalized the proposed listing of five Our Response: We have considered Historical data indicate that these butterfly species based on their the peer review and public comments. subspecies co-occurred at the South similarity of appearance to the Mount Based on these comments, and further Loop Trail and Willow Creek areas. In Charleston blue butterfly, the rule consideration of the best scientific 2011, researchers documented both the should have only prohibited their information available, we have Mount Charleston blue butterfly and the collection and not extended to determined that it is prudent to Spring Mountains dark blue butterfly otherwise lawful activities. However, designate critical habitat for the Mount (Euphilotes ancilla purpura) at the based on comments and further Charleston blue butterfly. Therefore, Bonanza Trail area, and noted that evaluation, we are not listing the lupine elsewhere in a separate Federal Register plants with which each subspecies is blue butterfly, Reakirt’s blue butterfly, notice, we will propose to designate closely associated were present Spring Mountains icarioides blue critical habitat for the Mount Charleston (Thompson et al. 2012, p. 3 and 4). butterfly, and two Spring Mountains blue butterfly. dark blue butterflies based on similarity Therefore, we believe the two Comments From the State Euphilotes ancilla subspecies do of appearance to the Mount Charleston overlap with the Mount Charleston blue blue butterfly under section 4(e) of the Section 4(i) of the Act states, ‘‘the butterfly and are not disjunct. Act (see Factor B discussion, below, for Secretary shall submit to the State We agree the Mount Charleston blue more details). agency a written justification for his butterfly may be difficult to distinguish (18) Comment: One commenter failure to adopt regulations consistent from the two subspecies of Euphilotes suggested that there are many with the agency’s comments or ancilla by some individuals (see unknowns regarding blue butterflies in petition.’’ We received comments from Response to Comment 14 for more the Plebejus lupini and Plebejus acmon the State from one peer reviewer. These details). We believe the closure order complex, and it is debatable whether the comments were included under Peer issued by the Forest Service (described lupine blue butterfly (Plebejus lupini Reviewer and Public Comments. above) and the requirement for a texanus) actually occurs in the Spring Federal Agency Comments scientific collection permit from the Mountains, or if the butterfly that is Forest Service for collection of the two identified as this subspecies is actually (20) Comment: The Forest Service subspecies of Euphilotes ancilla and a the Acmon blue butterfly (Plebejus noted that the baseline population that section 10(a)(1)(A) permit from the acmon). was chosen to determine the status of Service for collection of any listed Our Response: We agree that further the Mount Charleston blue butterfly was butterflies for research on the Mount taxonomic work may be needed for the the highest recorded in at least 20 years, Charleston blue butterfly reduces the Plebejus lupini and Plebejus acmon and, therefore, the distribution and threat from incidental or accidental complex. We used the most currently occupied habitat was likely greater than collection of the Mount Charleston blue available scientific literature to identify average, and may have included butterfly when other butterflies are taxonomic entities in the Spring ecological sinks. They suggested a more being targeted (see Factor B discussion, Mountains. Recent observations of the typical year should have been used as below, and Response to Comment 14, subject butterflies occurring in the the baseline average population and that above, for more details). Spring Mountains have been identified the 20-year timeframe we used to (16) Comment: Three peer reviewers as Plebejus lupini texanus (Andrew et determine occupancy status is too long. commented that the area which we al. 2013, pp. 41 and 61). Until new Our Response: We agree that the identified in the proposed listing under taxonomic information becomes Mount Charleston blue butterfly was section 4(e) of the Act protecting five available to suggest otherwise, we rely recorded in high numbers at two areas species of butterflies similar in on the best available scientific and of LVSSR in 1995, but note that an appearance to the Mount Charleston commercial information, which states equally high number were counted at blue butterfly was too large. that the subspecies described as one of these areas (the second area was Our Response: We selected the occurring in the Spring Mountains is not visited) in 2002. We considered data SMNRA boundary in the proposed Plebejus lupini texanus. from these and subsequent years to listing under section 4(e) of the Act assess the occupancy of Mount because it is easily identified on major Comments Related to Critical Habitat Charleston blue butterfly locations. We roads accessing the area and, therefore, Prudency Determination did not choose the data from 1995 as a would be easily recognized by the (19) Comment: Four peer reviewers baseline for the Mount Charleston blue general public and law enforcement. and one commenter expressed concern butterfly; rather, we selected a 20-year However, we are not listing under over the Service’s determination that timeframe to assess the Mount section 4(e) of the Act the lupine blue critical habitat is not prudent, disagreed Charleston blue butterfly’s status, based butterfly, Reakirt’s blue butterfly, Spring with this decision, or otherwise on the butterfly’s biology and ecological Mountains icarioides blue butterfly, and suggested we reconsider the basis for factors of its habitat as stated in the two Spring Mountains dark blue this determination. One peer reviewer ‘‘Distribution’’ section, above. At this butterflies based on similarity of and one commenter supported, or time, not enough information is known appearance to the Mount Charleston agreed to some extent with, the basis of about the diapause period or the blue butterfly (see Factor B discussion our determination. Comments in population dynamics of the Mount for more details); therefore, this opposition to our not prudent Charleston blue butterfly to determine comment no longer applies to our determination were largely based on the how metapopulations of this subspecies rulemaking. potential benefits of designating critical may or may not be connected. We can (17) Comment: One commenter stated habitat, and skepticism that increased make inferences using information from that the listing of the five additional risk and harm from collection to the other closely related species, but until butterfly species on the basis of the Mount Charleston blue butterfly would further research is conducted on the similarity of appearance should only occur with designation, because ample Mount Charleston blue butterfly, there

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57762 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

is a great deal that is unknown. We do benefits the Mount Charleston blue butterfly species that occur in the know that the Mount Charleston blue butterfly and its habitat. Spring Mountains will be issued butterfly has not been detected at Our Response: We agree and look permits. As a result, we do not several sites since 1995. We attribute forward to working with the Forest anticipate that individuals with this, in large part, to a lack of habitat, Service to further the conservation of authorized collection permits will resulting from human disturbances and the Mount Charleston blue butterfly. misidentify the butterfly species, and vegetation succession (see discussions (23) Comment: The Forest Service therefore, inadvertent collection should under Factors A, B, D, and E, below) stated that ‘‘if climate change be greatly reduced. In addition, persons that have occurred in the last 20 years. predictions hold true in southern found collecting any butterfly species Some of these vegetation shifts may Nevada, low-elevation sites are likely to without permits within most of the the have occurred in short time periods become less suitable for occupation by Mount Charleston blue butterfly’s (e.g., 2 years for a LVSSR ski run to shift the butterfly.’’ known range, or found to be possessing, from low-growing species to shrub Our Response: We do not agree that storing, or transporting the Mount cover), but the vegetation at sites where it can be stated at this time with a Charleston blue butterfly anywhere trees are encroaching (e.g., Gary Abbott) reasonable degree of certainty that there within the Spring Mountains National are shifting over longer time periods. will be a unidirectional shift or decrease Recreation Area, would be in violation Thus, we used a 20-year timeframe to in the importance of sites in lower of the closure order and subject to law determine site occupancy status because elevations. There is currently enforcement action. inadequate site-specific information it takes into account: (1) The variable Comparing the potential protections time periods in which vegetation shifts from climate change models, combined with topographic variability at each site, from our proposal of listing the can occur at Mount Charleston blue remaining two similar butterfly species butterfly locations, and (2) population to predict the relative importance of various sites. We agree that there may be whose ranges overlap that of the Mount dynamics that may affect the presence Charleston blue butterfly under section of the Mount Charleston blue butterfly some correlation with elevation, but we are unaware of any analysis identifying 4(e) of the Act (similarity of appearance) at a particular location. to the protections that will be afforded (21) Comment: The Forest Service the magnitude of shifts in climate as by the Forest Service’s closure order, the stated that it has complied with the they relate to the Mount Charleston blue closure order provides equal or greater regulations required by the National butterfly and its habitat. protections. As stated in the proposed Environmental Policy Act (NEPA; 42 Summary of Changes From Proposed rule (77 FR 59518; September 27, 2012), U.S.C. 4321 et seq.) and the Act. The Rule commenter stated that the Forest the special 4(d) rule would have Service has taken conservation of the After consideration of the comments established ‘‘prohibitions on collection Mount Charleston blue butterfly into we received during the public comment of the lupine blue butterfly (Plebejus consideration and consulted with the period (see above), we made several lupini texanus), Reakirt’s blue butterfly Service on the implementation of plans changes to the final listing rule. Many (Echinargus isola), Spring Mountains and projects, including the LVSSR small, nonsubstantive changes and icarioides blue butterfly (Plebejus Master Plan. The commenter went on to corrections not affecting the icarioides austinorum), and two Spring state that many unknowns exist determination (for example, updating Mountains dark blue butterflies regarding the Mount Charleston blue the Background section in response to (Euphilotes ancilla cryptica and E. a. butterfly; therefore, the Forest Service’s comments and minor clarifications) purpura), or their immature stages, land management practices are not were made throughout the document. where their ranges overlap with the Mt. responsible for potential declines, All substantial changes relate to the Charleston blue butterfly, in order to especially because the Forest Service proposed similarity of appearance protect the Mt. Charleston blue butterfly has incorporated the Service’s listings under section 4(e) of the Act and from collection, possession, and trade.’’ minimization measures. the prudency of designating critical Further, ‘‘Capture of the lupine blue Our Response: We are confident the habitat. butterfly, Reakirt’s blue butterfly, Spring Forest Service has complied with NEPA Based on comments and further Mountains icarioides blue butterfly, and and the Act. Overall, the Forest Service evaluation, we are not listing the lupine the two Spring Mountains dark blue has closely coordinated with the blue butterfly, Reakirt’s blue butterfly, butterflies, or their immature stages, is Service, and this coordination has Spring Mountains icarioides blue not prohibited if it is accidental, such as improved in recent years. While there butterfly, and two Spring Mountains during research, provided the is have been lapses in coordination (see dark blue butterflies based on similarity released immediately upon discovery at Factor A discussion, below), these of appearance to the Mount Charleston the point of capture,’’ and ‘‘Scientific incidents have been exceptions. We blue butterfly under section 4(e) of the activities involving collection or agree that many unknowns exist Act. The protection that would have propagation of these similarity-of- regarding the Mount Charleston blue been provided to the Mount Charleston appearance butterflies are not butterfly and its ecology, but we blue butterfly through these listings (see prohibited provided there is prior conclude (see information under the discussion in response to Comment 14, written authorization from the Service. discussions of Factors A and C, below) above) is no longer advisable, as similar All otherwise legal activities that may that some of the Forest Service’s land or greater protection will be provided by involve what we would normally define management practices may have the closure order issued by the Forest as incidental take (take that results from, contributed to the loss of Mount Service. Specifically, the application but is not the purpose of, carrying out Charleston blue butterfly habitat. processes for Service and Forest Service an otherwise lawful activity) of these (22) Comment: The Forest Service collection permits associated with the similar butterflies, and which are stated that no fuel reduction funds are closure order require thorough review of conducted in accordance with currently in place, but should fuel applicant qualifications by agency applicable State, Federal, Tribal, and reduction activities be planned in the personnel, and we believe only highly local laws and regulations, will not be future, they can be done in a manner qualified individuals capable of considered take under this regulation.’’ that minimizes impacts to and actually distinguishing between small, blue For example, the special 4(d) rule would

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57763

have exempted ‘‘legal application of occupied location for the Mount Fire Suppression, Succession, and pesticides, grounds maintenance, Charleston blue butterfly. After Nonnative Species recreational facilities maintenance, reviewing the available data, we Butterflies have extremely specialized vehicle use, vegetation management, determined that Lee Meadows is a habitat requirements (Thomas 1984, p. exotic plant removal, and burning. presumed extirpated location for the 337). Cushman and Murphy (1993, p. 4) These actions will not be considered as Mount Charleston blue butterfly because determined 28 at-risk lycaenid butterfly violations of section 9 of the Act if they no detections of Mount Charleston blue species, including the Mount Charleston result in incidental take of any of the butterflies have occurred there since blue butterfly, to be dependent on one similarity of appearance butterflies.’’ 1965 (Weiss et al. 1997, p. 10). As or two closely related larval host plants. The Forest Service closure order and discussed earlier, we presume that the Many of these larval host plants are permitting requirement goes farther by Mount Charleston blue butterfly is dependent on early successional prohibiting not only intentional or environments. Butterflies that specialize inadvertent capture, but even the extirpated from a location when it has on such plants must track an ephemeral attempt to collect any butterfly species not been recorded at that location resource base that itself depends on within most of the known range of the through formal and informal surveys or unpredictable and perhaps infrequent Mount Charleston blue butterfly, incidental observation for more than 20 ecosystem disturbances. For such without a specific permit. The closure years. butterfly species, local extinction events order establishes broader take and In addition, based on information are both frequent and inevitable possession prohibitions against the five gathered from peer reviewers and the (Cushman and Murphy 1993, p. 4). The butterfly species specifically listed in public during the comment period, we Mount Charleston blue butterfly may, in the closure order, which includes the have determined that it is prudent to Mount Charleston blue butterfly, and part, depend on disturbances that open designate critical habitat for the Mount up the subalpine canopy and create establishes a permitting requirement for Charleston blue butterfly. Therefore, any collection of these species within conditions more favorable to the larval elsewhere in a separate Federal Register host plant, Astragalus calycosus var. the entire Spring Mountains Natural notice, we will propose to designate Resource Area. Additionally, collection calycosus, and nectar resources (Weiss critical habitat for the Mount Charleston of all butterflies within most of the et al. 1995, p. 5; Boyd and Murphy known range of the Mount Charleston blue butterfly. 2008, pp. 22–28) (see ‘‘Habitat’’ section, blue butterfly is prohibited unless a above). Summary of Factors Affecting the A lack of disturbances, such as fire or special permit is obtained from the Species Regional Forester. This will likely have mechanical alteration, may prevent the desirable effect of reducing Section 4 of the Act and its open understory and overstory canopy collection even more than would our implementing regulations (50 CFR 424) conditions needed for Astragalus proposed 4(d) rule. set forth the procedures for adding calycosus var. calycosus to grow, thereby decreasing the amount of Based on the more recent information species to the Federal Lists of potential Mount Charleston blue that some of the species proposed for Endangered and Threatened Wildlife listing under similarity of appearance butterfly habitat. Datasmiths (2007, p. and Plants. A species may be 21) suggests that Mount Charleston blue do not in fact overlap the range of the determined to be an endangered or Mount Charleston blue butterfly, and butterfly habitat consisting of patches of threatened species due to one or more Astragalus calycosus var. calycosus are the greater protections that will be of the five factors described in section afforded by the Forest Service closure often, but not exclusively, associated 4(a)(1) of the Act: (A) The present or order, we are not listing the lupine blue with older or infrequent disturbance. threatened destruction, modification, or butterfly, Reakirt’s blue butterfly, Spring Weiss et al. (1995, p. 5) note that a Mountains icarioides blue butterfly, or curtailment of its habitat or range; (B) colony once existed on the Upper Kyle the two Spring Mountains dark blue overutilization for commercial, Canyon Ski Area (Location 13 in Table butterflies, based on similarity of recreational, scientific, or educational 1), but, since the ski run was appearance to the Mount Charleston purposes; (C) disease or predation; (D) abandoned, no butterflies have been blue butterfly under section 4(e) of the the inadequacy of existing regulatory collected there since 1965; presumably, Act (see Factor B discussion, below, for mechanisms; or (E) other natural or the lack of disturbance at this site more details). manmade factors affecting its continued diminished the habitat quality for the In the proposed rule, we did not existence. Listing actions may be Mount Charleston blue butterfly. Boyd include Griffith Peak as a Mount warranted based on any of the above and Austin (2002, p. 13) observed that Charleston blue butterfly location. After threat factors, singly or in combination. the butterfly was common at Lee reviewing the available data, we Each of these factors is discussed below. Meadows (Location 8 in Table 1) in the determined that Griffith Peak should be 1960s, but became uncommon at the site considered a presumed occupied Factor A. The Present or Threatened because of succession and a lack of location for the Mount Charleston blue Destruction, Modification, or disturbance. Weiss et al. (1995, p. 5) butterfly because the most recent Curtailment of Its Habitat or Range concluded that most of Lee Meadows observation was in 1995, and the did not support any larval host plants in appropriate larval host plants and nectar Below, we evaluate several factors the mid-1990s and would not support a plants are present to support Mount that negatively impact the Mount Mount Charleston blue butterfly Charleston blue butterflies. As defined Charleston blue butterfly’s habitat, population over the long term; in 2012, earlier, we presume a location to be including fire suppression, fuels Andrew et al. (2013, p. 51–52) assessed occupied if adults have been observed reduction, succession, introduction of the site similarly. within the last 20 years and nectar nonnative species, recreation, and Although no published fire histories plants are present to support Mount development. We also examine current for the Spring Mountains are known Charleston blue butterflies. conservation agreements and plans, and (Abella et al. 2012, p. 128), the Forest In the proposed rule we considered the extent to which they address the Service’s policy regarding fire exclusion Lee Meadows to be a presumed threats to the butterfly. in the early and mid-1900s is well-

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57764 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

documented (Interagency Federal Changes in forest structure and Charleston blue butterfly. However, the Wildland Fire Policy Review Working understory plant communities result in ski runs are not specifically managed to Group 2001, p. 1) and presumably habitat loss, degradation, and benefit habitat for this subspecies and affected fire management practices in fragmentation for the Mount Charleston its habitat requirements, and operational the Spring Mountains. The current blue butterfly across a broad spatial activities (including seeding of dominance of certain tree species scale. Boyd and Murphy (2008, p. 23) nonnative species) regularly modify indicate a recent lack of fire due to fire note that important habitat Mount Charleston blue butterfly habitat exclusion or reduction in natural fire characteristics required by Mount or prevent larval host plants from cycles in the Spring Mountains (Abella Charleston blue butterfly—Astragalus reestablishing in disturbed areas. Weiss et al. 2012, pp. 129–130), which has calycosus var. calycosus and preferred et al. (1995, pp. 5–6) recognized that a resulted in long-term successional nectar plants occurring together in open positive management action for the changes, including increased forest area sites not shaded by tree canopies— Mount Charleston blue butterfly would and forest structure (higher canopy would have occurred more frequently be to establish more Astragalus on cover, more young trees, and more trees across a more open forested landscape. additional ski runs at LVSSR, especially intolerant of fire) (Nachlinger and Reese Comparatively, the current, more in areas of thin soils where grasses and 1996, p. 37; Amell 2006, pp. 6–9; Boyd densely forested landscape reduces the Melilotus (sweetclover) are difficult to and Murphy 2008, pp. 22–28; Denton et connectivity of existing or potential establish. Titus and Landau (2003, p. 1) al. 2008, p. 21; Abella et al. 2012, pp. Mount Charleston blue butterfly observed that vegetation on highly and 128, 130). Frequent low-severity fires, as locations. These more densely forested moderately disturbed areas of the historically occurred in Pinus landscapes decrease the likelihood that LVSSR ski runs are floristically very ponderosa (ponderosa pine)-dominated the butterfly will expand to unoccupied different from natural openings in the forests, would have maintained an open locations. Although the butterfly’s adjacent forested areas that support this forest structure characterized by population dynamics are unknown, if subspecies. Seeding nonnative species uneven-aged stands of fire-resistant the Mount Charleston blue butterfly for erosion control was discontinued in Pinus ponderosa trees in Lee and Kyle functions in a metapopulation dynamic, 2005; however, because of erosion Canyons (Amell 2006, p. 5). Because of vegetation shifts to a denser forest problems during 2006 and 2007, and the changes to historic fire regimes, there structure could impact key lack of native seed, LVSSR resumed has been an increase in area covered by metapopulation processes by reducing using a nonnative seed mix, particularly forest canopy and an increase in stem the probability of recolonization in the lower portions of the ski runs (not densities with more smaller trees following local population extirpations adjacent to Mount Charleston blue intolerant of fire within the lower- in remaining patches of Mount butterfly habitat) where erosion elevation Mount Charleston blue Charleston blue butterfly habitat (Boyd problems persist. butterfly habitat. and Murphy 2008, p. 25). The best available information The introduction of forbs, shrubs, and indicates that, in at least five of the Large-diameter Pinus ponderosa trees nonnative grasses can be a threat to the seven locations where the Mount with multiple fire scars in Upper Lee butterfly’s habitat because these species Charleston blue butterfly has been and Kyle Canyons indicate that low- can compete with, and decrease, the extirpated, habitat is no longer present severity fires historically burned quality and abundance of larval host due to vegetation changes attributed to through mixed-conifer forests within the plant and adult nectar sources. This has changes in the natural fire regime, range of the Mount Charleston blue been observed for many butterfly vegetation succession, the introduction butterfly (Amell 2006, p. 3). There are species, including the Quino of nonnative species, or a combination no empirical estimates of fire intervals checkerspot butterfly (Euphydryas of these. or frequencies in the Spring Mountains, editha quino) (62 FR 2313; January 16, Recreation, Development, and Other but extensive research in the Southwest 1997) and Fender’s blue butterfly Projects indicates that return intervals prior to (Plebejus (= Icaricia) icarioides fenderi) the fire exclusion policy were generally (65 FR 3875; January 25, 2000). As discussed in the ‘‘Distribution’’ less than 10 years in Pinus ponderosa Succession, coupled with the section, above, the Mount Charleston forests (Abella et al. 2012, p. 130), and introduction of nonnative species, is blue butterfly is a narrow endemic return intervals in the proximate San also believed to be the reason the Mount subspecies that is currently known to Bernardino Mountains have been Charleston blue butterfly is no longer occupy three locations and presumed to reported to be 4 to 20, or 2 to 39, years, present at the Old Town site in Kyle occupy seven others. One of the three prior to fire exclusion in the 20th Canyon (Location 14 in Table 1) and at areas where Mount Charleston blue century (Minnich et al. 1995, p. 903; the Mount Charleston blue butterfly butterflies have been detected in recent Denton et al. 2008, p. 23). Open mixed- holotype (the type specimen used in the years is the LVSSR. Several ground- conifer forests in the Spring Mountains original description of a species or disturbing projects occurred within were likely characterized by more subspecies) site in Upper Lee Canyon Mount Charleston blue butterfly habitat abundant and diverse understory plant (Location 11 in Table 1) (Urban at LVSSR between 2000 and 2011 (see communities compared to current Wildlands Group, Inc. 2005, p. 3; Boyd 76 FR 12667, March 8, 2011, pp. 12672, conditions (Entrix 2008, pp. 73–78). and Austin 1999, p. 17). 12673). These projects were of small These successional changes have been Introduction of nonnative species spatial scale (ground disturbance was hypothesized to have contributed to the within its habitat negatively impacts the less than about 10 ac each) but are decline of the Mount Charleston blue quality of the Mount Charleston blue known to have impacted habitat and butterfly because of reduced densities of butterfly’s habitat. As mentioned possibly impacted individual Mount larval and nectar plants, decreased solar previously (see ‘‘Habitat’’ section, Charleston blue butterflies (eggs, larvae, insolation, and inhibited butterfly above), periodic maintenance (removal pupae, or adults). In addition to these movements that subsequently determine of trees and shrubs) of the ski runs has recreation development projects at colonization or recolonization processes effectively arrested succession on the LVSSR, a small area of habitat and (Weiss et al. 1997, p. 26; Boyd and ski slopes and maintains conditions that possibly individual Mount Charleston Murphy 2008, pp. 22–28). can be favorable to the Mount blue butterflies were impacted by a

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57765

water system replacement project in and evaluated under NEPA. The Service work is completed, we will not be able Upper Lee Canyon in 2003, and a small coordinated with and provided to tell whether the design criteria that area of habitat (less than 1 acre) was recommendations to the Forest Service were implemented will be effective at impacted by a stream restoration project to prevent impacts to Mount Charleston avoiding or minimizing impacts to the at Lee Meadows in 2011. It is difficult blue butterflies and their habitat Mount Charleston blue butterfly. to know the full extent of impacts and (Service 2012a, p. 2). In January 2013, (4) The Ski Lift 2 Replacement Project whether the impacts were negative or the Forest Service issued a decision is being planned and evaluated under positive to the Mount Charleston blue notice and finding of no significant NEPA. The proposed action includes butterfly’s habitat as a result of these impact for the project, which removing and replacing chair lift projects because Mount Charleston blue incorporated design criteria to avoid number 2 and moving the base terminal butterfly habitat was not mapped, nor impacts to Mount Charleston blue down slope to the elevation of the base were some project areas surveyed, prior butterfly habitat and individuals (Forest lodge deck. In order to accomplish this, to implementation. Service 2013a, p. 1). Design criteria chair lift number 1 will have to be Four ongoing and future projects also included early coordination between moved to the south to accommodate may impact Mount Charleston blue work crews and specialists familiar with both loading terminals. Construction butterfly habitat in Upper Lee Canyon. the Mount Charleston blue butterfly and activities would include removing and These projects are summarized below: its habitat, temporary fencing around replacing all terminals, lift towers, (1) A March 2011 master development potential habitat areas, weed tower footings, lift lines, metal rope, plan for LVSSR proposes to improve, prevention, restoration of disturbed chairs, communication equipment, and upgrade, and expand the existing areas, and avoidance of potential habitat backup power generation. This facilities to provide year-round areas during construction boundary and proposed action is consistent with the recreational activities. The plan trail layout (Forest Service 2013a, p. 17– LVSSR master development plan proposes to increase snow trails, 19). The Forest Service began accepted by the Forest Service in 2011. beginner terrain, and snowmaking implementing this project in November We met with the Forest Service and reservoir capacity and coverage; widen 2012, and the project is expected to be provided recommendations regarding existing ski trails; replace and add lifts; completed in May 2015 (Forest Service potential direct and indirect impacts of and develop ‘‘gladed’’ areas for sliding 2013b). These projects are ongoing with these activities to the Mount Charleston that would remove deadfall timber to the design criteria being implemented to blue butterfly and its potential habitat reduce fire hazards (Ecosign 2011, pp. I– minimize the likelihood of impacts. within or in close proximity to the 3–I–4, IV–5–IV–7). The plan proposes to Until the work is completed, we will not project area. The recommendations add summer activities including lift- be able to tell whether the design provided by the Service will assist with accessed sightseeing and hiking, nature criteria that were implemented will be the development of the proposed action interpretive hikes, evening stargazing, effective at avoiding or minimizing in order to avoid or minimize adverse mountain biking, conference retreats impacts to the Mount Charleston blue effects to the Mount Charleston blue and seminars, weddings, family butterfly. butterfly and its potential habitat. The reunions, mountain music concerts, Forest Service expects to issue a festivals, climbing walls, bungee (3) In the proposed rule, we reported decision notice on this project in August trampoline, beach and grass volleyball, that the Foxtail Group Picnic Area 2013, and begin implementation a car rally, and other activities (Ecosign Reconstruction Project in Upper Lee immediately after that time (Forest 2011, pp. I–3–I–4). Widening existing Canyon was being planned and Service 2013b). ski trails and increasing snowmaking evaluated under NEPA. The Service reservoir capacity (Ecosign 2011, p. IV– coordinated with and provided Fuels Reduction Projects 5, Figure 21a) would impact the Mount recommendations to the Forest Service In December 2007, the Forest Service Charleston blue butterfly at a known to prevent impacts to Mount Charleston approved the SMNRA Hazardous Fuels occupied and at a presumed occupied blue butterflies or their habitat (Service Reduction Project (Forest Service 2007a, location (Locations 2 and 5 in Table 1). 2012b, p. 2). In December 2012, the pp. 1–127). This project resulted in tree Summer activities would impact the Forest Service issued a decision notice removals and vegetation thinning in Mount Charleston blue butterfly and its and finding of no significant impact for three presumed occupied Mount known occupied and presumed the project, which incorporated design Charleston blue butterfly locations in occupied habitat by attracting visitors in criteria to avoid impacts to Mount Upper Lee Canyon, including Foxtail higher numbers during the time of year Charleston blue butterfly habitat and Ridge and Lee Canyon Youth Camp, and when larvae and larval host plants are individuals (Forest Service 2012, p. 1). impacted approximately 32 ac (13 ha) of especially vulnerable to trampling Design criteria included early presumed occupied habitat that has (Location 2 in Table 1). The LVSSR coordination between work crews and been mapped in Upper Lee Canyon master development plan, which has specialists familiar with the Mount (Locations 3 and 4 in Table 1) (Forest been accepted by the Forest Service, Charleston blue butterfly and its habitat, Service 2007a, Appendix A-Map 2; considered Mount Charleston blue temporary fencing around potential Datasmiths 2007, p. 26). Manual and butterfly habitat during development of habitat areas, weed prevention, mechanical clearing of shrubs and trees the plan. Impacts to Mount Charleston restoration of disturbed areas, and will be repeated on a 5- to 10-year blue butterfly habitat from the LVSSR avoidance of potential habitat areas rotating basis and will result in direct master development plan will be during construction boundary and trail impacts to the Mount Charleston blue addressed further during its NEPA layout (Forest Service 2012, pp. 12–15). butterfly and its habitat, including process (discussed further under Factor The Forest Service began implementing crushing or removal of larval host plants D, below) (Forest Service 2011, p. 3). this project in November 2012, and the and diapausing larvae (if present). (2) In the proposed rule, we reported project is expected to be completed in Implementation of this project began in that the Old Mill, Dolomite, and May 2015 (Forest Service 2013b). These the spring of 2008 throughout the McWilliams Reconstruction Projects to projects are ongoing with the design Spring Mountains National Recreation improve camping and picnic areas in criteria being implemented to minimize Area, including Lee Canyon, and the Upper Lee Canyon were being planned the likelihood of impacts. Until the project is nearly complete for its initial

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57766 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

implementation (Forest Service 2011, p. Natural Resources in providing long- conservation agreement is currently 2). term protection for the rare and being developed for the SMNRA. Although Boyd and Murphy (2008, p. sensitive flora and fauna of the Spring The loss or modification of known 26) recommended increased forest Mountains, including the Mount occupied and presumed occupied thinning to improve habitat quality for Charleston blue butterfly (Forest Service Mount Charleston blue butterfly habitat the Mount Charleston blue butterfly, the 1998a, pp. 1–50). The conservation in Upper Lee Canyon, as discussed primary goal of this project was to agreement was in effect for a period of above, has occurred in the past. reduce wildfire risk to life and property 10 years after it was signed on April 13, However, more recently, the Forest in the SMNRA wildland urban interface 1998 (Forest Service et al. 1998, pp. 44, Service has suspended decisions on (Forest Service 2007a, p. 6), not to 49), and was renewed in 2008 (Forest certain projects that would potentially improve Mount Charleston blue Service 2008). Coordination between the impact Mount Charleston blue butterfly butterfly habitat. Mount Charleston blue Forest Service and Service has habitat (see discussion of lower parking butterflies require larval host plants and continued. Many of the conservation lot expansion and new snowmaking nectar plants that are flowering actions described in the conservation lines projects in the 12-month status concurrent with the butterfly’s flight agreement have been implemented; finding ‘‘Recreation, Development period and that occur in areas without however, several important Projects,’’ (76 FR 12673)). forest canopy cover, which can reduce conservation actions that may have In addition, the Forest Service has solar exposure during critical larval directly benefited the Mount Charleston reaffirmed its commitment to feeding periods (Boyd and Murphy blue butterfly have not been collaborate with the Service in order to 2008, p. 23; Fleishman 2012, peer implemented. Regardless, many of the avoid implementation of projects or review comment). Although the fuel conservation actions in the conservation actions that would impact the viability reduction project incorporated measures agreement (for example, inventory and of the Mount Charleston blue butterfly to minimize impacts to the Mount monitoring) would not directly reduce (Forest Service 2010). This commitment Charleston blue butterfly and its habitat, threats to the Mount Charleston blue includes: (1) Developing a mutually shaded fuel breaks created for this butterfly or its habitat. agreeable process to review future project may not result in open areas to proposed projects to ensure that In 2004, the Service and Forest create or significantly improve Mount implementation of these actions will not Service signed a memorandum of Charleston blue butterfly habitat. lead to loss of population viability; (2) Although this project may result in agreement that provides a process for reviewing proposed projects that may increased understory herbaceous plant review of activities that involve species pose a threat to the continued viability productivity and diversity, there are covered under the 1998 conservation of the subspecies; and (3) jointly short-term risks to the Mount Charleston agreement (Forest Service and Service developing a conservation agreement blue butterfly’s habitat associated with 2004, pp. 1–9). Formal coordination (strategy) that identifies actions that will project implementation. In through this memorandum of agreement be taken to ensure the conservation of recommending increased forest thinning was established to: (1) Jointly develop the subspecies (Forest Service 2010). to improve Mount Charleston blue projects that avoid or minimize impacts The Forest Service and the Service are butterfly habitat, Boyd and Murphy to species that are listed, candidate currently in the process of cooperatively (2008, p. 26) cautioned that thinning species, and species that are proposed developing the conservation agreement. treatments would need to be for listing, and species under the 1998 The Mount Charleston blue butterfly implemented carefully to minimize conservation agreement; and (2) to is a covered subspecies under the 2000 short-term disturbance impacts to the ensure consistency with commitments Clark County Multiple Species Habitat Mount Charleston blue butterfly and its and direction provided for in recovery Conservation Plan (MSHCP). The Clark habitat. Individual butterflies (larvae, planning efforts and in conservation County MSHCP identifies two goals for pupae, and adults), and larval host agreement efforts. More than half of the the Mount Charleston blue butterfly: (a) plants and nectar plants, may be past projects that impacted Mount ‘‘Maintain stable or increasing crushed during project implementation. Charleston blue butterfly habitat were population numbers and host and larval In areas where thinned trees are reviewed by the Service and Forest plant species’’; and (b) ‘‘No net chipped (mastication), layers of wood Service under this review process, but unmitigated loss of larval host plant or chips may become too deep and impact the review process on several projects nectar plant species habitat’’ (RECON survival of Mount Charleston blue was never initiated. Some efforts under 2000a, Table 2.5, pp. 2–154; RECON butterfly larvae and pupae, as well as this memorandum of agreement have 2000b, pp. B158–B161). The Forest larval host plants and nectar plants. Soil been successful in reducing or avoiding Service is one of several signatories to and vegetation disturbance during project impacts to the Mount Charleston the implementing agreement for the project implementation would increase blue butterfly, while other efforts have Clark County MSHCP, because many of the probability of colonization and not. Recent examples of projects that the activities from the 1998 establishment of weeds and have been planned to reduce or avoid conservation agreement were disturbance-adapted species, such as impacts to the Mount Charleston blue incorporated into the MSHCP. Chrysothamnus spp. (rabbitbrush); these butterfly include the Lee Meadows Primarily, activities undertaken by the plants would compete with Mount Restoration Project (discussed above in Forest Service focused on conducting Charleston blue butterfly larval host and ‘‘Recreation, Development, and Other surveying and monitoring for butterflies. nectar plants. Projects’’ under Factor A) and the Although some surveying and Bristlecone Trail Habitat Improvement monitoring occurred through contracts Conservation Agreement and Plans That Project (Forest Service 2007b, pp. 1–7; by the Forest Service, Clark County, and May Offset Habitat Threats Forest Service 2007c, pp. 1–14; Service the Service, a butterfly monitoring plan A conservation agreement was 2007, p. 1–2). However, the projects are was not fully implemented. developed in 1998, to facilitate currently under implementation so Recently, the Forest Service has been voluntary cooperation among the Forest effectiveness of the avoidance and implementing the LVSSR Adaptive Service, the Service, and the State of minimization measures cannot be Vegetation Management Plan (Forest Nevada Department of Conservation and evaluated at this time. A new Service 2005, pp. 1–24) to provide

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57767

mitigation for approximately 11 ac (4.45 habitat would further impair the long- in habitat loss, we find that the present ha) of impacts to presumed-occupied term population viability of the Mount and future destruction, modification, Mount Charleston blue butterfly habitat Charleston blue butterfly in Upper Lee and curtailment of its habitat or range is (and other sensitive wildlife and plant Canyon by removing diapausing larvae a threat to the Mount Charleston blue species habitat) resulting from projects and, potentially, pupae (if present), and butterfly. that the Forest Service implemented in by reducing the ability of the Mount Factor B. Overutilization for 2005 and 2006. Under the plan, LVSSR Charleston blue butterfly to disperse Commercial, Recreational, Scientific, or will revegetate impacted areas using during favorable years. The successional Educational Purposes native plant species, including advance of trees, shrubs, and grasses, Astragalus calycosus var. calycosus. along with the spread of nonnative Rare butterflies and moths are highly However, this program is experimental species, are continuing threats to the prized by collectors, and an and has experienced difficulties due to subspecies in Upper Lee Canyon. While international trade exists in specimens the challenges of native seed availability host and nectar plants are relatively for both live and decorative markets, as and propagation. Under the plan, abundant at the presumed-occupied well as the specialist trade that supplies Astragalus calycosus var. calycosus is locations of Foxtail, Youth Camp, Gary hobbyists, collectors, and researchers being brought into horticultural Abbott, and the known occupied (Collins and Morris 1985, pp. 155–179; propagation. Several methods have been location of LVSSR, these locations are Morris et al. 1991, pp. 332–334; used to propagate Astragalus calycosus threatened by forest canopy growth and Williams 1996, pp. 30–37). The var. calycosus, including germination encroachment (Andrew et al. 2013, p. specialist trade differs from both the live from seed and salvaging plants to grow 47–54). The Mount Charleston blue and decorative market in that it in pots (Thiell 2011, pp. 4–6). Overall butterfly is presumed extirpated from concentrates on rare and threatened survival of plants to the time of planting seven historical locations (Lee species (U.S. Department of Justice with either method was low, although Meadows, Cathedral Rock, Upper Lee [USDOJ] 1993, pp. 1–3; United States v. many variables may have factored into Canyon holotype, Upper Kyle Canyon Skalski et al., Case No. CR9320137, U.S. this success rate (Thiell 2011, pp. 4–6, Ski Area, Old Town, Deer Creek, and District Court for the Northern District 14–15). Thus, additional methods to Willow Creek), likely due to of California [U.S. Attorney’s Office] propagate Astragalus calycosus var. successional changes and the 1993, pp. 1–86). In general, the rarer the calycosus and other larval host plants introduction of nonnative plants. species, the more valuable it is; prices can exceed $25,000 for exceedingly rare and nectar plants will need to be tested Nonnative forbs and grasses are a threat specimens. For example, during a 4-year in order to establish successful to the subspecies and its habitat at investigation, special agents of the methodology for restoration of Mount LVSSR. Charleston blue butterfly habitat. Service’s Office of Law Enforcement There are agreements and plans in executed warrants and seized over Summary of Factor A place (including the 2008 Spring 30,000 endangered and protected The Mount Charleston blue butterfly Mountains conservation agreement and butterflies and beetles, with a total is currently known to occur in three the 2000 Clark County MSHCP) or in wholesale commercial market value of locations: the South Loop Trail area in development that are intended to about $90,000 in the United States upper Kyle Canyon, LVSSR in Upper conserve the Mount Charleston blue (USDJ 1995, pp. 1–4). In another case, Lee Canyon, and Bonanza Trail. In butterfly and its habitat. Future special agents found at least 13 species addition, the Mount Charleston blue voluntary conservation actions could be protected under the Act, and another butterfly is presumed to occupy seven implemented in accordance with the 130 species illegally taken from lands locations: Foxtail, Youth Camp, Gary terms of these agreements and plans, but administered by the Department of the Abbott, Lower LVSSR Parking, are largely dependent on the level of Interior and other State lands (USDC Bristlecone Trail, Mummy Spring, and funding available to the Forest Service 1993, pp. 1–86; Service 1995, pp. 1–2). Griffith Peak. Habitat loss and for such work. If all of these projects Several listings of butterflies as modification, as a result of changes in were able to be implemented, the threat endangered or threatened species under fire regimes and long-term successional to the Mount Charleston blue butterfly the Act have been based, at least changes in forest structure, and its habitat could be reduced. partially, on intense collection pressure. implementation of recreational Conservation actions (for example, Notably, the Saint Francis’ satyr development projects and fuels mechanical thinning of timber stands (Neonympha mitchellii francisci) was reduction projects, and nonnative and prescribed burns to create openings emergency-listed as an endangered species, are continuing threats to the in the forest canopy suitable for the species on April 18, 1994 (59 FR 18324). butterfly’s habitat in Upper Lee Canyon. Mount Charleston blue butterfly and its The Saint Francis’ satyr was Recreational area reconstruction host and nectar plants) could reduce to demonstrated to have been significantly projects currently planned also may some degree the ongoing adverse effects impacted by collectors in just a 3-year negatively impact Mount Charleston to the butterfly of vegetative succession period (59 FR 18324). The Callippe and blue butterfly habitat in Upper Lee promoted by alteration of the natural Behren’s silverspot butterflies (Speyeria Canyon. In addition, proposed future fire regime in the Spring Mountains. callippe callippe and Speyeria zerene activities under a draft master The Forest Service’s commitment to behrensii) were listed as endangered development plan at LVSSR may impact collaboratively review proposed projects species on December 5, 1997 (62 FR the Mount Charleston blue butterfly and to minimize impacts to the Mount 64306), partially due to overcollection. its habitat in Upper Lee Canyon. Charleston blue butterfly may reduce Most recently, the Miami blue butterfly Because of its likely small population the threat posed by activities under the (Cyclargus thomasi bethunebakeri) was size, projects that impact even relatively Forest Service’s control, although we are emergency-listed as an endangered small areas of occupied habitat could unable to determine the potential species (76 FR 49542; August 10, 2011), threaten the long-term population effectiveness of this new strategy at this with collection being one of the primary viability of the Mount Charleston blue time. Therefore, based on the current threats. butterfly. The continued loss or distribution of suitable habitat and Butterflies in small populations may modification of presumed occupied recent, existing, and likely future trends be vulnerable to harm from collection

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57768 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

(Gall 1984, p. 133). A population may be (Alexander 1996, p. 2). In particular, 55, 61). Therefore, while we do not reduced to below sustainable numbers small colonies and populations are at know to what extent the Mount by removal of females, reducing the the highest risk. Overcollection or Charleston blue butterfly is specifically probability that new colonies will be repeated handling and marking of targeted for collection, we do know the founded. Collectors can pose threats to females in years of low abundance can inadvertent or unpermitted collection of butterflies, notably when populations seriously damage populations through Mount Charleston blue butterflies has are already severely reduced by other loss of reproductive individuals and occurred in the past and is anticipated factors, because they may be unable to genetic variability (65 FR 3875; January to continue in the future to some degree. recognize when they are depleting 25, 2000). In areas of the southwestern When Austin first described the colonies below the thresholds of United States surrounding the range of Mount Charleston blue butterfly in 1980 survival or recovery (Collins and Morris the Mount Charleston blue butterfly, (Austin 1980, p. 22), he indicated that 1985, pp. 162–165). There is ample other diminutive lycaenid butterflies collectors regularly visited areas close to evidence of collectors impacting other such as Western-tailed blue butterfly imperiled and endangered butterflies the known collection sites of the Mount (Everes amyntula), Pygmy blue butterfly Charleston blue butterfly. Records (Gochfeld and Burger 1997, pp. 208– (Brephidium exilis), Ceraunus blue 209), impacting larval host plants (Cech indicate collection has occurred in butterfly (Hemiargus ceraunus), and and Tudor 2005, p. 55), and even several locations within the Spring Boisduval’s blue butterfly (Plebejus contributing to extirpations (Duffey Mountains, with Lee Canyon being icarioides ssp.) have been confiscated 1968, p. 94). For example, the federally among the most popular areas for endangered Mitchell’s satyr from commercial traders who illegally butterfly collecting (Table 2; Austin (Neonympha mitchellii mitchellii) is collected them (U.S. Attorney’s Office 1980, p. 22; Service 2012, p. 2). believed to have been extirpated from 1993, pp. 4, 8, 16; Alexander 1996, pp. Butterfly collectors may sometimes New Jersey due to overcollection 1–6). Since the publication of the 12- remove the only individual of a coupled with habitat loss (57 FR 21564, month finding (76 FR 12667) on March subspecies observed during collecting May 20, 1992; Gochfeld and Burger 8, 2011, we have discovered additional trips, even if it is known to be a unique 1997, p. 209). information that indicates butterfly specimen (Service 2012, p. 3). In many Rare butterflies can be highly prized collecting occurs at some level in the instances, a collector may not know he by collectors, and collection is a Spring Mountains (Service 2012c, pp. has a particularly rare or scarce species known threat to some butterfly species, 1–4), and the Mount Charleston blue until after collection and subsequent such as the Fender’s blue butterfly (65 butterfly and other small, blue identification takes place. The best FR 3875; January 25, 2000). In some butterflies that co-occur with the Mount available information indicates that cases, private collectors have more Charleston blue butterfly have been Mount Charleston blue butterflies have extensive collections of particular collected (Service 2012c, pp. 1–4; been collected for personal use (Service butterfly species than museums Andrew et al. 2013, pp. 22, 28, 41, 49, 2012c, p. 2).

TABLE 2—NUMBERS OF MOUNT CHARLESTON BLUE BUTTERFLY SPECIMENS COLLECTED BY AREA, YEAR, AND SEX

Collection area/year Male Female Unknown Total

Mount Charleston: 1928 ...... * ∼700 * ∼700 Willow Creek: 1928 ...... 15 19 ...... 34 Lee Canyon: 1963 ...... 8 6 8 22 1976 ...... 1 ...... 1 2002 ...... 1 ...... 1 Kyle Canyon: 1965 ...... 3 ...... 3 Cathedral Rock: 1972 ...... 1 1 Deer Creek Rd.: 1950 ...... 2 ...... 2 South Loop: 2007 ...... 1 1

Total ...... 30 25 10 65 References: Garth 1928, p. 93; Howe 1975, Plate 59; Austin 1980, p. 22; Austin and Austin 1980, p. 30; Kingsley 2007, p. 4; Service 2012c, p. 2 * = Collections by Frank Morand as reported in Garth 1928, p. 93. Not included in totals.

For most butterfly species, collecting direct mortality of individuals and may sedentary populations of those butterfly is generally thought to have less of an greatly affect the population’s viability species that fly often, fly fairly weakly, impact on butterfly populations and ability to recover. Populations and are in areas of readily accessible compared to other threats. Weiss et al. already stressed by other factors may be terrain are most likely to be at risk from (1997, p. 29) indicated that, in general, severely threatened by intensive overcollection. responsible collecting posed little harm collecting (Thomas 1984, p. 345; Miller Butterfly collecting (except those with to populations. However, when a 1994, pp. 76, 83; New et al. 1995, p. 62). protected status) for noncommercial butterfly population is very small, any Thomas 1984 (p. 345) suggested that (recreational and personal) purposes collection of butterflies results in the small (fewer than 250 adults), closed, does not require a special use

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57769

authorization (Forest Service 1998b, p. closure order has two prohibitions, the be issued permits. Therefore, the threat 1; Joslin 1998, p. 74). However, the first prohibits the collection of the from incidental or accidental collection Forest Service’s 1996 General Mount Charleston blue butterfly and of the Mount Charleston blue butterfly Management Plan identified Lee four other sensitive butterfly species will be reduced. As a result, we do not Canyon, Cold Creek, Willow Creek, and (Morand’s checkerspot [Euphydryas anticipate that individuals with permits upper Kyle Canyon in the SMNRA as anicia morandi], Spring Mountains will misidentify the butterfly species, areas where permits are required for any acastus checkerspot [Chlosyne acastus and therefore, inadvertent collection by butterfly collecting (Forest Service 1998, robusta], and the two subspecies of authorized individuals should be greatly pp. 28, E9). On Forest Service- Spring Mountains dark blue butterflies) reduced. In addition, any collection administered lands, a special use permit in all areas within the Spring Mountain without permits would be in violation has been required for commercial National Recreation Area. A second of the closure order and subject to law activities (36 CFR 251.50), which, prohibition of the order closes the enforcement action so purposeful, although not identified specifically, majority of theknown range of the unlawful collection should also be would presumably include the Mount Charleston blue butterfly to the reduced. commercial collection of butterflies. collection of all butterfly species, This closure order is expected to There are no records indicating any including those species for which the provide more protection from the threat butterfly collection permits have been Mount Charleston blue butterfly could of collection to the Mount Charleston issued under the Forest Service’s be mistaken. Permits to collect non- blue butterfly than the listing of the five general management plan (GMP) listed butterflies in these areas may be additional butterflies based on provision (although at least one issued by the Forest Service through the similarity of appearance would have application has been submitted), or that collection permit process. This process provided, for several reasons. First, the any special use permits have been requires applicants to provide recently issued Forest Service closure issued for commercial collecting of information regarding their order provides an enforcement Mount Charleston blue butterflies under qualifications and experience with mechanism for law enforcement officers 36 CFR 251.50 in the Spring Mountains butterflies and intended uses of the through the Code of Federal Regulations (S. Hinman 2011, personal permit, including the specific purpose (36 CFR 261.51), which the GMP communication). However, outreach of collection; a list of which species will provision did not provide. Law and public notification regarding this be collected; the number of each sex and enforcement officers will be able to requirement was not wide, and many life stage for each species that will be ticket or cite individuals who are out of individuals probably were not aware collected; a list of locations where compliance with the closure order. Secondly, individuals interested in that a permit was required, resulting in collection would occur; the time period collecting nonlisted butterflies in the unauthorized collection in the past. in which collection would occur; and SMNRA will have to apply for a how information and knowledge gained Collection targeting other butterfly collection permit and provide thorough from the collection will be species that are similar in appearance to justification and description of their disseminated. the Mount Charleston blue butterfly research and need for collection as may have resulted in incidental The Forest Service permit does not described above. Based on the current collection of the Mount Charleston blue allow the collection of any species listed number of known butterfly researchers butterfly or mistaken identification of under the Act, including the Mount in the Spring Mountains, the Forest the Mount Charleston blue butterfly for Charleston blue butterfly being added to Service is unlikely to issue many another similar species. Based on this, the Lists of Endangered and Threatened collection permits for any butterfly we proposed to list five additional Species by this rule. Collection of the species in Mount Charleston blue butterfly species (lupine blue, Reakirt’s Mount Charleston blue butterfly, as well butterfly habitat. Those who are issued blue butterfly, Spring Mountains as any other endangered or threatened permits will have provided information icarioides blue butterfly, and two Spring species, requires a section 10(a)(1)(A) demonstrating their qualifications and Mountains dark blue butterflies) under permit issued by the Service; the section ability to research and identify butterfly section 4(e) of the Act (77 FR 59518, 10(a)(1)(A) permit process ensures that species of the Spring Mountains; September 27, 2012). Since our those that are interested in conducting therefore, only individuals who are proposed rule, we have evaluated more research, which may include collection highly qualified and competent with recent range data for the five species, for scientific purposes, are qualified to butterflies and their identification will and find that not all of those species work with this butterfly subspecies and be issued collection permits. Further, actually overlap the known range of the have research objectives that will qualified and competent collectors will Mount Charleston blue butterfly. enhance the survival of the subspecies. be able to identify the Mount Charleston Although the butterflies species that we Individuals who are issued a section blue butterfly and know that its proposed for listing are similar in 10(a)(1)(A) permit to research the Mount collection is prohibited under the Act. appearance to the Mount Charleston Charleston blue butterfly may then Therefore, the threat from incidental or blue butterfly, we believe the protection apply for a scientific collection permit accidental collection of the Mount from misidentification and incidental from the Forest Service if such research Charleston blue butterfly while collection that their listing would have activities will be conducted on Forest collecting other butterfly species will be provided is now unnecessary because Service lands. Because the application reduced. the Forest Service has issued a closure processes for a Service-issued section Thirdly, Forest Service law order prohibiting collection, possession 10(a)(1)(A) permit and a Forest Service enforcement will be able to more readily and transportation of all butterfly scientific collection permit require and easily enforce a closure order than species without a special permit within thorough review of applicant our law enforcement would be able to the majority of the occupied range of the qualifications by agency personnel, we enforce potential violations based on Mount Charleston blue butterfly that believe only highly qualified similarity of appearance listings under will significantly reduce or eliminate individuals capable of distinguishing the Act. The areas identified in the the threat of incidental collection of the between small, blue butterfly species closure area receive the highest amount Mount Charleston blue butterfly. This that occur in the Spring Mountains will of recreation in the SMNRA, so these

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57770 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

areas often receive the greatest presence Factor C. Disease or Predation threats. In this section, we review of Forest Service law enforcement. This We are not aware of any information existing State and Federal regulatory will provide substantially more law specific to the Mount Charleston blue mechanisms to determine whether they enforcement presence to deter possible butterfly regarding impacts from either effectively reduce or remove threats to unlawful collection than if the species disease or predation. Research on these the Mount Charleston blue butterfly. Mount Charleston blue butterflies similar in appearance were listed topics and their impacts on the Mount have been detected in only three general without the closure order. Law Charleston blue butterfly is lacking. areas in recent years—the South Loop enforcement personnel will not need to Researchers have observed potential Trail area, LVSSR, and the Bonanza be able to distinguish between different predator species (for example, spiders Trail area, all of which occur primarily butterfly species during potential (class Arachnida), ambush bugs on Federal land under the jurisdiction enforcement actions, because anyone (Phymata spp.), and flycatchers of the Forest Service; therefore, the collecting or attempting to collect (Empidonax spp.)) at Mount Charleston butterflies within the closure area must discussion below focuses on Federal blue butterfly locations (Thompson et laws. There is no available information be permitted, or that person will be in al. 2013b, presentation), but we are not regarding local land use laws and violation of the closure order, and law aware of any documented predation ordinances that have been issued by enforcement may take appropriate events and cannot confirm if any of Clark County or other local government enforcement action. Because individuals these species do predate Mount entities for the protection of the Mount applying for a Forest Service collection Charleston blue butterflies. The extent Charleston blue butterfly. Nevada permit must demonstrate adequate to which parasitoids regulate butterfly Revised Statutes sections 503 and 527 qualifications and expertise in butterfly populations is not adequately offer protective measures to wildlife and identification, we believe individuals understood (Gilbert and Singer 1975, p. plants, but do not include invertebrate that are permitted will be qualified and 367), and we do not have information species such as the Mount Charleston able to distinguish the Mount specific to this regarding the Mount blue butterfly. Therefore, no regulatory Charleston blue butterfly from other Charleston blue butterfly. As a result, protection is offered under Nevada State species and will be in compliance with the best available scientific and law. Please note that actions adopted by his or her permit. Should someone be commercial information does not local groups, States, or Federal entities stopped with blue butterflies outside of indicate that disease or predation are a that are discretionary, including the closure order area, law enforcement threat to the Mount Charleston blue conservation strategies and guidance, will still be able to seize the blue butterfly. are not regulatory mechanisms and were butterflies, with probable cause, and Factor D. The Inadequacy of Existing discussed above in the ‘‘Conservation have them identified by an expert to Regulatory Mechanisms Agreement and Plans That May Offset ensure that they are not listed species. Habitat Threats’’ section under Factor A, If they are a listed species, the Under this factor, we examine above. individual would need to prove lawful whether existing regulatory mechanisms The Forest Service manages lands possession or be subject to law are inadequate to address the threats to designated as wilderness under the enforcement action, including potential the subspecies discussed under the Wilderness Act of 1964 (16 U.S.C. 1131– criminal or civil prosecution for other factors. Section 4(b)(1)(A) of the 1136). With respect to these areas, violations of the Act. Based on these Act requires the Service to take into section 4(c) of the Wilderness Act states reasons, the Forest Service closure order account ‘‘those efforts, if any, being in part that ‘‘except as specifically is expected to be more effective in made by any State or foreign nation, or provided for in this Act, . . . there shall protecting the Mount Charleston blue any political subdivision of a State or be no temporary road, no use of motor butterfly from the threat of collection foreign nation, to protect such species vehicles, motorized equipment or than the listing of species due to their . . .’’ In relation to Factor D under the motorboats, no landing of aircraft, no similarity of appearance to the Mount Act, we interpret this language to other form of mechanical transport, and Charleston blue butterfly. For more require the Service to consider relevant no structure or installation within any Federal, State, and tribal laws, information on the Forest Service such area.’’ Although the Wilderness regulations, and other such mechanisms closure order, please visit http:// Act is not specifically intended to that may minimize any of the threats we www.fs.usda.gov/alerts/htnf/alerts- protect at-risk species, such as the describe in threat analyses under the notices. Mount Charleston blue butterfly, the other four factors, or otherwise enhance Wilderness Act provides ancillary In summary, the threat to the Mount conservation of the species. We give protection to this subspecies by the Charleston blue butterfly from strongest weight to statutes and their prohibitions restricting development in collection is expected to be reduced by implementing regulations and to habitat in the South Loop Trail and the Forest Service’s closure order on management direction that stems from Bonanza Trail areas. Mount Charleston collection, and we are confident that those laws and regulations. An example blue butterfly habitat at LVSSR and most individuals will follow the Forest would be State governmental actions elsewhere in Lee Canyon and Kyle Service’s and our permitting enforced under a State statute or Canyon is located outside of the Mount regulations. However, it is possible that constitution, or Federal action under Charleston Wilderness, and thus is not unlawful collection of the Mount statute. subject to protections afforded by the Charleston blue butterfly could occur. Having evaluated the significance of Wilderness Act. Due to the small number of discrete the threat as mitigated by any such The National Environmental Policy populations, overall small conservation efforts, we analyze under Act (NEPA) of 1969, as amended (42 metapopulation size, close proximity to Factor D the extent to which existing U.S.C. 4321 et seq.), requires Federal roads and trails, and restricted range, we regulatory mechanisms are inadequate agencies, such as the Forest Service, to have determined that unpermitted and to address the specific threats to the describe proposed agency actions, unlawful collection is a threat to the species. Regulatory mechanisms, if they consider alternatives, identify and subspecies and may continue to be in exist, may reduce or eliminate the disclose potential environmental the future. impacts from one or more identified impacts of each alternative, and involve

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57771

the public in the decision-making Spring Mountains National Recreation in protecting the Mount Charleston blue process. Federal agencies are not Area GMP (Forest Service 1996). In June butterfly from most butterfly collection. required to select the NEPA alternative 2006, the Forest Service added the Summary of Factor D having the least significant Mount Charleston blue butterfly, and environmental impacts. A Federal three other endemic butterflies, to the While not the intent of the Wilderness agency may select an action that will Regional Forester’s Sensitive Species Act, the Mount Charleston blue butterfly adversely affect sensitive species List, in accordance with Forest Service receives ancillary protection from the provided that these effects are identified Manual 2670. The Forest Service’s Wilderness Act from its prohibitions on in a NEPA document. The NEPA itself objective in managing sensitive species development. We consider the recent is a disclosure law, and does not require is to prevent listing of species under the issuance of a butterfly collection closure subsequent minimization or mitigation Act, maintain viable populations of order by the Forest Service to reduce the of actions taken by Federal agencies. native species, and develop and threat of collection to the Mount Although Federal agencies may include implement management objectives for Charleston blue butterfly. conservation measures for the Mount populations and habitat of sensitive Other existing regulatory mechanisms Charleston blue butterfly as a result of species. Projects listed under the Factor have not provided effective protection the NEPA process, such measures are A discussion, above, have been guided to the Mount Charleston blue butterfly not required by the statute. The Forest by these Forest Service plans, policies, and its habitat. Forest Service plans, Service is required to analyze its and guidance. These plans, policies, and policies, and guidance notwithstanding, projects, including those listed under guidance notwithstanding, removal or removal or degradation of known the Factor A discussion, above, in degradation of known occupied and occupied and presumed-occupied accordance with the NEPA. presumed-occupied butterfly habitat has butterfly habitat has occurred as a result of projects approved by the Forest The SMNRA is one of 10 districts of occurred as a result of projects approved Service in Upper Lee Canyon, and the Humboldt–Toiyabe National Forest by the Forest Service in Upper Lee Forest Service guidance has not been and was established by Public Law 103– Canyon. Additionally, this guidance has effective in reducing other threats to the 63, dated August 4, 1993 (the Spring not been effective in reducing other Mount Charleston blue butterfly (for Mountains National Recreation Area threats to the Mount Charleston blue example, invasion of nonnative plant Act, 16 U.S.C. 460hhh et seq.). The butterfly (for example, invasion of species and commercial and personal Federal lands of the SMNRA are nonnative plant species and commercial collection activities) (Weiss et al. 1995, managed by the Forest Service in Clark and personal collection activities) pp. 5–6; Titus and Landau 2003, p. 1; and Nye Counties, Nevada, for the (Weiss et al. 1995, pp. 5–6; Titus and following purposes: Boyd and Murphy 2008, p. 6; Service Landau 2003, p. 1; Boyd and Murphy 2012c, pp. 1–4). (1) To preserve the scenic, scientific, 2008, p. 6; Service 2012c, pp. 1–4). historic, cultural, natural, wilderness, Factor E. Other Natural or Manmade watershed, riparian, wildlife, Until recently, the effectiveness of the Forest Service’s GMP provision Factors Affecting Its Continued endangered and threatened species, and Existence other values contributing to public requiring a permit in order to collect enjoyment and biological diversity in butterflies was inadequate because it Our analyses under the Act include the Spring Mountains of Nevada; was not well publicized and did not consideration of ongoing and projected (2) To ensure appropriate provide a mechanism for law changes in climate. The terms ‘‘climate’’ conservation and management of enforcement personnel to enforce it (77 and ‘‘climate change’’ are defined by the natural and recreational resources in the FR 59518, September 27, 2012). Intergovernmental Panel on Climate Spring Mountains; and However, as described in detail under Change (IPCC). ‘‘Climate’’ refers to the (3) To provide for the development of Factor B, above, the Forest Service has mean and variability of different types public recreational opportunities in the recently issued a closure order of weather conditions over time, with 30 Spring Mountains for the enjoyment of prohibiting the collection of the Mount years being a typical period for such present and future generations. Habitat Charleston blue butterfly and four other measurements, although shorter or of the Mount Charleston blue butterfly sensitive butterfly species throughout longer periods also may be used (IPCC is predominantly in the SMNRA and the SMNRA and prohibiting the 2007a, p. 78). The term ‘‘climate one of several resources considered by collection of all butterfly species in the change’’ thus refers to a change in the the Forest Service under the guidance of area where the majority of known mean or variability of one or more its land management plans. occupied and presumed occupied measures of climate (e.g., temperature or The National Forest Management Act locations of the Mount Charleston blue precipitation) that persists for an (NFMA) of 1976, as amended (16 U.S.C. butterfly occur. The Code of Federal extended period, typically decades or 1600 et seq.), provides the principal Regulations (36 CFR 261.51) requires longer, whether the change is due to guidance for the management of the Forest Service to provide natural variability, human activity, or activities on lands under Forest Service information on the closure area in both (IPCC 2007a, p. 78). Various types jurisdiction through associated land and multiple locations, and the Forest of changes in climate can have direct or resource management plans for each Service has notified the public on its indirect effects on species. These effects forest unit. Under NFMA and other Web site, at kiosks and trailheads in the may be positive, neutral, or negative and Federal laws, the Forest Service has SMNRA, and on butterfly discussion they may change over time, depending authority to regulate recreation, vehicle boards. Any violation of the on the species and other relevant travel and other human disturbance, prohibitions in the closure order issued considerations, such as the effects of livestock grazing, fire management, pursuant to 36 CFR 261.50(a) and (b) is interactions of climate with other energy development, and mining on subject to law enforcement action and variables (e.g., habitat fragmentation) lands within its jurisdiction. Current punishable as a misdemeanor offense (IPCC 2007b, pp. 8–14, 18–19). In our guidance for the management of Forest [Title 16 U.S.C. 551, 18 U.S.C. analyses, we use our expert judgment to Service lands in the SMNRA is under 3571(b)(6), Title 18 U.S.C. 3581(b)(7)]. weigh relevant information, including the Toiyabe National Forest Land and Based on this, we believe the Forest uncertainty, in our consideration of Resource Management Plan and the Service’s closure order will be effective various aspects of climate change.

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57772 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

Global climate projections are potential to adversely impact the p. 37). Changes in local southern informative, and, in some cases, the subspecies. Nevada climatic patterns cannot be only or the best scientific information Late-season snowstorms have caused definitively tied to global climate available for us to use. However, alpine butterfly extirpations (Ehrlich et change; however, they are consistent projected changes in climate and related al. 1972, pp. 101–105), and false spring with IPCC-predicted patterns of extreme impacts can vary substantially across conditions followed by normal winter precipitation, warmer than average and within different regions of the snowstorms have caused adult and pre- temperatures, and drought (Redmond world (e.g., IPCC 2007b, pp. 8–12). diapause larvae mortality (Parmesan 2007, p. 1). Therefore, we think it likely Therefore, we use ‘‘downscaled’’ 2005, pp. 56–60). In addition, high that climate change will impact the projections when they are available and rainfall years have been associated with Mount Charleston blue butterfly and its have been developed through butterfly population declines (Dobkin et high-elevation habitat through predicted appropriate scientific procedures, al. 1987, pp. 161–176). Extended increases in extreme precipitation and because such projections provide higher periods of rainy weather can also slow drought. Based on the above evidence, resolution information that is more larval development and reduce we believe that the Mount Charleston relevant to spatial scales used for overwintering survival (Weiss et al. blue butterfly has likely been affected by analyses of a given species (see Glick et 1993, pp. 261–270). Weiss et al. (1997, unfavorable climatic changes in al. 2011, pp. 58–61, for a discussion of p. 32) suggested that heavy summer precipitation and temperature that are downscaling). IPCC models are at a monsoon thunderstorms adversely both ongoing and projected to continue landscape scale and project that impacted Mount Charleston blue into the future, and alternating extreme precipitation will decrease in the butterflies during the 1996 flight season. precipitation and drought may southwestern United States (IPCC During the 2006 and 2007 flight season, exacerbate threats already facing the 2007c, p. 8, Table SPM.2). The IPCC severe summer thunderstorms may have subspecies as a result of its small reports that temperature increases and affected the flight season at LVSSR and population size and threats to its rising air and ocean temperature is the South Loop Trail (Newfields 2006, habitat. pp. 11 and 14; Kingsley 2007, p. 8). unquestionable (IPCC 2007b, p. 4). The Summary of Factor E average annual temperature is projected Additionally, drought has been shown to increase 2.5 degrees Celsius (4.4 to lower butterfly populations (Ehrlich Small butterfly populations have a degrees Fahrenheit) from the 1961–1990 et al. 1980, pp. 101–105; Thomas 1984, higher risk of extinction due to random environmental events (Shaffer 1981, p. baseline average to the 2050s (average of p. 344). Drought can cause larval 131; Gilpin and Soule 1986, pp. 24–28; 16 general circulation models performed butterfly host plants to mature early and Shaffer 1987, pp. 69–75). Because of its with three emission scenarios) (TNC reduce larval food availability (Ehrlich presumed small population and 2011, Web site). Precipitation variability et al. 1980, pp. 101–105; Weiss 1987, p. restricted range, the Mount Charleston in the Mojave Desert region is linked 165). This has likely affected the Mount blue butterfly is vulnerable to random spatially and temporally with events in Charleston blue butterfly. Murphy environmental events; in particular, the the tropical and northern Pacific Oceans (2006, p. 3) and Boyd (2006, p. 1) both Mount Charleston blue butterfly is (El Nin˜ o and La Nin˜ a) (USGS 2004, pp. assert a series of drought years, followed threatened by extreme precipitation 2–3). In our analyses, we use our expert by a season of above-average snowfall events and drought. In the past 60 years, judgment to weigh relevant information, and then more drought, could be a reason for the lack of butterfly sightings the frequency of storms with extreme including uncertainty, in our in 2006. Continuing drought could be precipitation has increased in Nevada consideration of various aspects of responsible for the lack of sightings in by 29 percent (Madsen and Figdor 2007, climate change as it affects the Mount 2007 and 2008 (Datasmiths 2007, p. 1; p. 37), and it is predicted that altered Charleston blue butterfly. Boyd 2008, p. 2). regional patterns of temperature and The Mount Charleston blue butterfly High-elevation species like the Mount precipitation as a result of global population has declined since the last Charleston blue butterfly may be climate change will continue (IPCC high-population year in 1995 (a total of susceptible to some level of habitat loss 2007c, pp. 15–16). While we may not 121 butterflies were counted during due to global climate change have detailed, site-specific information surveys of 2 areas at LVSSR on 2 exacerbating threats already impacting on climate change and its effects on the separate dates (Weiss 1996, p. 4)). This the subspecies (Peters and Darling 1985, Mount Charleston blue butterfly and its subspecies has a limited distribution p. 714; Hill et al. 2002, p. 2170). Effects habitat at this time (see responses to within 267.1 ac (108.1 ha) of habitat at on the Mount Charleston blue butterfly Comments 12 and 13, above), altered only 3 known occupied locations, and or its habitat from climate change will climate patterns throughout the entire based on numbers of observations made vary across its range because of range of the Mount Charleston blue at these locations in a single season, the topographic heterogeneity (Luoto and butterfly could increase the potential for populations are likely small. Small Heikkinen 2008, p. 487). The IPCC has extreme precipitation events and populations have a higher risk of high confidence in predictions that drought, and may exacerbate the threats extinction due to random environmental extreme weather events, warmer the subspecies already faces given its events (Shaffer 1981, p. 131; Shaffer temperatures, and regional drought are presumed small population size and the 1987, pp. 69–75; Gilpin and Soule 1986, very likely to increase in the northern threats to the alpine environment where pp. 24–28). Weather extremes can cause hemisphere as a result of climate change it occurs. Based on this information, we severe butterfly population reductions (IPCC 2007c, pp. 15–16). Climate find that other natural or manmade or extinctions (Murphy et al. 1990, p. models show the southwestern United factors are affecting the Mount 43; Weiss et al. 1987, pp. 164–167; States has transitioned into a more arid Charleston blue butterfly such that these Thomas et al. 1996, pp. 964–969). Given climate of drought that is predicted to factors are a threat to the subspecies’ the limited distribution and likely low continue into the next century (Seager et continued existence. population numbers of the Mount al. 2007, p. 1181). In the past 60 years, Charleston blue butterfly, late-season the frequency of storms with extreme Determination snowstorms, severe summer monsoon precipitation has increased in Nevada We have carefully assessed the best thunderstorms, and drought have the by 29 percent (Madsen and Figdor 2007, scientific and commercial information

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57773

available regarding the past, present, of extinction throughout all or a required by Federal agencies and the and future threats to the Mount significant portion of its range’’ and a prohibitions against certain activities Charleston blue butterfly. The Mount threatened species as any species ‘‘that are discussed, in part, below. Charleston blue butterfly is sensitive to is likely to become endangered The primary purpose of the Act is the environmental variability with the throughout all or a significant portion of conservation of endangered and butterfly population rising and falling in its range within the foreseeable future.’’ threatened species and the ecosystems response to environmental conditions We determine that Mount Charleston upon which they depend. The ultimate (see ‘‘Status and Trends’’ section, blue butterfly is presently in danger of goal of such conservation efforts is the above). The best available information extinction throughout its entire range, recovery of these listed species, so that for the Mount Charleston blue butterfly based on the immediacy, severity, and they no longer need the protective shows that the range and population scope of the threats described above and measures of the Act. Subsection 4(f) of have been in decline over the last 20 its limited distribution of three known the Act requires the Service to develop years, and that the population is now occupied locations and seven and implement recovery plans for the likely extremely small (see ‘‘Status and presumed-occupied locations nearing conservation of endangered and Trends’’ section, above). extirpation. The Mount Charleston blue threatened species. The recovery Threats facing the Mount Charleston butterfly thus meets the definition of an planning process involves the blue butterfly, discussed above under endangered species rather than identification of actions that are listing Factors A, B, D, and E, increase threatened species because: (1) It has necessary to halt or reverse the species’ the risk of extinction of the subspecies, been extirpated from seven locations, (2) decline by addressing the threats to its given its few occurrences in a small it is limited to only three small survival and recovery. The goal of this area. The loss and degradation of habitat populations and possibly 7 other process is to restore listed species to a due to changes in natural fire regimes populations at presumed-occupied point where they are secure, self- and succession; the implementation of areas, (3) the known-occupied and sustaining, and functioning components recreational development projects and presumed-occupied populations are of their ecosystems. fuels reduction projects; and the facing severe and imminent threats, and Recovery planning includes the increases in nonnative plants (see (4) threats are ongoing and expected to development of a recovery outline Factor A discussion) will increase the continue into the future. Therefore, on shortly after a species is listed and inherent risk of extinction of the the basis of the best available scientific preparation of a draft and final recovery remaining few occurrences of the Mount and commercial information, we are plan. The recovery outline guides the Charleston blue butterfly. In addition, listing the Mount Charleston blue immediate implementation of urgent the threat to the Mount Charleston blue butterfly as endangered in accordance recovery actions and describes the butterfly from collection (see Factor B with sections 3(6) and 4(a)(1) of the Act. process to be used to develop a recovery discussion) is expected to be reduced by Under the Act and our implementing plan. Revisions of the plan may be done the Forest Service’s closure order on regulations, a species may warrant to address continuing or new threats to collection. However, due to the small listing if it is an endangered or the species, as new substantive number of discrete populations, overall threatened species throughout all or a information becomes available. The small metapopulation size, close significant portion of its range. The recovery plan identifies site-specific proximity to roads and trails, and Mount Charleston blue butterfly is management actions that set a trigger for restricted range, we have determined highly restricted in its range and the review of the five factors that control that unpermitted and unlawful threats occur throughout its range. whether a species remains endangered collection is a threat to the subspecies Therefore, we assessed the status of the or may be downlisted or delisted, and and may continue to be in the future. subspecies throughout its entire range. methods for monitoring recovery Regarding the inadequacy of existing The threats to the survival of the progress. Recovery plans also establish regulatory mechanisms (see Factor D subspecies occur throughout the a framework for agencies to coordinate discussion), we consider the recent subspecies’ range and are not restricted their recovery efforts and provide issuance of a butterfly collection closure to any particular significant portion of estimates of the cost of implementing order by the Forest Service to reduce the that range. Accordingly, our assessment recovery tasks. Recovery teams threat of collection to the Mount and determination applies to the (comprised of species experts, Federal Charleston blue butterfly. However, subspecies throughout its entire range, and State agencies, nongovernment other existing regulatory mechanisms and we did not further evaluate a organizations, and stakeholders) are have not provided effective protection significant portion of the subspecies’ often established to develop recovery to the Mount Charleston blue butterfly range. plans. When completed, the recovery and its habitat. These threats are likely outline, draft recovery plan, and the Protections and Conservation Measures to be exacerbated by the impact of final recovery plan will be available on Available Upon Listing climate change, which is anticipated to our Web site (http://www.fws.gov/ increase drought and extreme Conservation measures provided to endangered), or from our Nevada precipitation events (see Factor E species listed as endangered or Ecological Services Office (see discussion). The Mount Charleston blue threatened species under the Act ADDRESSES). butterfly is currently in danger of include recognition, recovery actions, Implementation of recovery actions extinction because only small requirements for Federal protection, and generally requires the participation of a populations are known to occupy only prohibitions against certain practices. broad range of partners, including other 3 of the 17 historical locations, it may Recognition through listing results in Federal agencies, States, Tribal, become extirpated in the near future at public awareness and conservation by nongovernmental organizations, 7 other locations presumed to be Federal, State, Tribal, and local businesses, and private landowners. occupied, and the threats are ongoing agencies, private organizations, and Examples of recovery actions include and persistent at all known and individuals. The Act encourages habitat restoration (e.g., restoration of presumed-occupied locations. cooperation with the States and requires native vegetation), research, captive The Act defines an endangered that recovery actions be carried out for propagation and reintroduction, and species as any species that is ‘‘in danger all listed species. The protection outreach and education. The recovery of

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 57774 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations

many listed species cannot be Service; issuance of section 404 Clean determination in the Federal Register accomplished solely on Federal lands Water Act (33 U.S.C. 1251 et seq.) on October 25, 1983 (48 FR 49244). because their range may occur primarily permits by the U.S. Army Corps of It is our position that, outside the or solely on non-Federal lands. To Engineers; and construction and jurisdiction of the U.S. Court of Appeals achieve recovery of these species maintenance of roads or highways by for the Tenth Circuit, we do not need to requires cooperative conservation efforts the Federal Highway Administration. prepare environmental analyses on private, State, and Tribal lands. The Act and its implementing pursuant to NEPA in connection with Once this rule is effective (see DATES regulations set forth a series of general designating critical habitat under the section, above), funding for recovery prohibitions and exceptions that apply Endangered Species Act. We published actions will be available from a variety to all endangered wildlife. The a notice outlining our reasons for this of sources, including Federal budgets, prohibitions of section 9(a)(2) of the Act, determination in the Federal Register State programs, and cost share grants for codified at 50 CFR 17.21 for endangered on October 25, 1983 (48 FR 49244). This non-Federal landowners, the academic wildlife, in part, make it illegal for any position was upheld by the U.S. Court community, and nongovernmental person subject to the jurisdiction of the of Appeals for the Ninth Circuit organizations. In addition, pursuant to United States to take (includes harass, (Douglas County v. Babbitt, 48 F.3d section 6 of the Act, the State of Nevada harm, pursue, hunt, shoot, wound, kill, 1495 (9th Cir. 1995), cert. denied 516 will be eligible for Federal funds to trap, capture, or collect; or to attempt U.S. 1042 (1996)). implement management actions that any of these), import, export, ship in References Cited promote the protection or recovery of interstate commerce in the course of the Mount Charleston blue butterfly. commercial activity, or sell or offer for A complete list of all references cited Information on our grant programs that sale in interstate or foreign commerce in this rule is available on the Internet are available to aid species recovery can any listed species. Under the Lacey Act at http://www.regulations.gov or upon be found at: http://www.fws.gov/grants. (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), request from the Nevada Ecological Section 7(a) of the Act requires it is also illegal to possess, sell, deliver, Services Office (see ADDRESSES). Federal agencies to evaluate their carry, transport, or ship any such Authors actions with respect to any species that wildlife that has been taken illegally. is proposed or listed as endangered or Certain exceptions apply to agents of the The primary authors of this document threatened and with respect to its U.S. Fish and Wildlife Service (Service) are the staff members of the Nevada critical habitat, if any is designated. and State conservation agencies. Ecological Services Office. We may issue permits to carry out Regulations implementing this List of Subjects in 50 CFR Part 17 interagency cooperation provision of the otherwise prohibited activities Act are codified at 50 CFR part 402. involving endangered and threatened Endangered and threatened species, Section 7(a)(4) of the Act requires wildlife species under certain Exports, Imports, Reporting and Federal agencies to confer with the circumstances. Regulations governing recordkeeping requirements, Service on any action that is likely to permits are codified at 50 CFR 17.22 for Transportation. endangered wildlife, and at 17.32 for jeopardize the continued existence of a Regulation Promulgation species proposed for listing or result in threatened wildlife. With regard to destruction or adverse modification of endangered wildlife, a permit must be Accordingly, we amend part 17, proposed critical habitat. If a species is issued for the following purposes: for subchapter B of chapter I, title 50 of the listed subsequently, section 7(a)(2) of scientific purposes, to enhance the Code of Federal Regulations, as follows: the Act requires Federal agencies to propagation or survival of the species, ensure that activities they authorize, and for incidental take in connection PART 17—[AMENDED] with otherwise lawful activities. fund, or carry out are not likely to ■ 1. The authority citation for part 17 jeopardize the continued existence of Required Determinations continues to read as follows: the species or destroy or adversely modify its critical habitat. If a Federal National Environmental Policy Act Authority: 16 U.S.C. 1361–1407; 1531– action may affect a listed species or its We have determined that 1544; 4201–4245, unless otherwise noted. critical habitat, the responsible Federal environmental assessments and ■ 2. Amend § 17.11(h) by adding an agency must enter into formal environmental impact statements, as entry for ‘‘Butterfly, Mount Charleston consultation with the Service. defined under the authority of the blue’’, in alphabetical order under Federal agency actions within the National Environmental Policy Act , to the List of Endangered and subspecies’ habitat that may require (NEPA; 42 U.S.C. 4321 et seq.), need not Threatened Wildlife, to read as follows: conference or consultation or both as be prepared in connection with listing described in the preceding paragraph a species as an endangered or § 17.11 Endangered and threatened include management and any other threatened species under the wildlife. landscape-altering activities on Federal Endangered Species Act. We published * * * * * lands administered by the Forest a notice outlining our reasons for this (h) * * *

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3 Federal Register / Vol. 78, No. 182 / Thursday, September 19, 2013 / Rules and Regulations 57775

Species Vertebrate population Historic range where Status When Critical Special Common name Scientific name endangered listed habitat rules or threatened

******* INSECTS

******* Butterfly, Mount Charles- Plebejus shasta Spring Mountains, Clark Entire ...... E ...... 820 NA ...... NA ton blue. charlestonensis. County, NV, U.S.A.

*******

* * * * * Dated: September 10, 2013. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. 2013–22702 Filed 9–18–13; 8:45 am] BILLING CODE 4310–55–P

VerDate Mar<15>2010 18:14 Sep 18, 2013 Jkt 229001 PO 00000 Frm 00027 Fmt 4701 Sfmt 9990 E:\FR\FM\19SER3.SGM 19SER3 tkelley on DSK3SPTVN1PROD with RULES3