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and draft EA under Docket No. FWS– also constitutes our 12-month finding Executive Summary R6–ES–2011–0111. on a petition to remove the Inyo Purpose of Regulatory Action For additional details on specific California towhee from the Federal List information we are requesting during of Endangered and Threatened Wildlife. In 2011, we received a petition from this public comment period, please see We are seeking information and The Pacific Legal Foundation to remove the Public Comments section in our comments from the public on this from the Federal List of Endangered and September 19, 2013, Federal Register proposed rule and the post-delisting Threatened Wildlife (delist) the Inyo document (78 FR 57604), which monitoring plan. The Inyo California California towhee based on the analysis reopened the previous comment period. towhee occurs only in Inyo County, and recommendations contained in our California. 2008 5-year status review of the species Authors (Service 2008, p. 20). In 2012, we The primary authors of this document DATES: The finding announced in this published a 90-day finding (77 FR are the staff members of the Regional document was made on November 4, 32922) that concluded that the petition Office and Western Colorado Field 2013. We will accept comments presented substantial scientific or Office, Mountain-Prairie Region, U.S. received or postmarked on or before commercial information indicating that Fish and Wildlife Service. January 3, 2014. Please note that if you the petitioned action may be warranted are using the Federal eRulemaking and initiated a status review. After Authority Portal (see ADDRESSES), the deadline for review of all available scientific and The authority for this action is the submitting an electronic comment is commercial information, we find that Endangered Species Act of 1973, as Eastern Standard Time on this date. We delisting the Inyo California towhee is amended (16 U.S.C. 1531 et seq.). must receive requests for public warranted due to recovery and we hearings, in writing, at the address propose to remove this taxon from the Dated: October 28, 2013. shown in the FOR FURTHER INFORMATION Federal List of Endangered and Rachel Jacobsen, CONTACT section by December 19, 2013. Threatened Wildlife. This document Principal Deputy Assistant Secretary for Fish ADDRESSES: Comment submission: You consists of: (1) A 12-month finding in and Wildlife and Parks. response to a petition to remove the [FR Doc. 2013–26332 Filed 11–1–13; 8:45 am] may submit comments on the proposed rule and the post-delisting monitoring Inyo California towhee from the Federal BILLING CODE 4310–55–P plan by one of the following methods: List of Endangered and Threatened Wildlife; (2) a proposed rule to delist (1) Electronically: Go to the Federal the Inyo California towhee; and (3) a eRulemaking Portal: http:// DEPARTMENT OF THE INTERIOR notice of availability of a draft post- www.regulations.gov. In the Search box, delisting monitoring plan. Fish and Wildlife Service enter FWS–R8–ES–2013–0113, which is the docket number for this rulemaking. Basis for Finding 50 CFR Part 17 You may submit a comment by clicking Under the Endangered Species Act [Docket No. FWS–R8–ES–2013–0113: on ‘‘Comment Now!’’ (Act), a species may be determined to be 4500030113] (2) By hard copy: Submit by U.S. mail endangered or threatened because of or hand-delivery to: Public Comments any of five factors: (A) The present or RIN 1018–AY80 Processing, Attn: FWS–R8–ES–2013– threatened destruction, modification, or Endangered and Threatened Wildlife 0113; Division of Policy and Directives curtailment of its habitat or range; (B) and Plants; 12-Month Finding on a Management; U.S. Fish and Wildlife overutilization for commercial, Petition and Proposed Rule To Service; 4401 N. Fairfax Drive, MS recreational, scientific, or educational Remove the Inyo California Towhee 2042–PDM; Arlington, VA 22203. purposes; (C) disease or predation; (D) (Pipilo crissalis eremophilus = We request that you send comments the inadequacy of existing regulatory Melozone crissalis eremophilus) From only by the methods described above. mechanisms; or (E) other natural or the Federal List of Endangered and We will post all comments on http:// manmade factors affecting its continued Threatened Wildlife www.regulations.gov. This generally existence. We must consider the same means that we will post any personal factors in delisting a species. We may AGENCY: Fish and Wildlife Service, information you provide us (see the delist a species if the best scientific and Interior. Information Requested section below for commercial data indicate the species is ACTION: Notice of petition finding; more information). neither threatened nor endangered for proposed rule; notice of availability of a Document availability: A copy of the one or more of the following reasons: (1) draft post-delisting monitoring plan. post-delisting monitoring plan can be The species is extinct; (2) the species viewed at http://www.regulations.gov has recovered and is no longer SUMMARY: We, the U.S. Fish and under Docket No. FWS–R8–ES–2013– threatened or endangered; or (3) the Wildlife Service (Service), propose to 0113, or at the Ventura Fish and original scientific data used at the time remove the Inyo California towhee Wildlife Office’s Web site at http:// the species was classified were in error. (Pipilo crissalis eremophilus = Melozone www.fws.gov/ventura/. Threats to the Inyo California towhee crissalis eremophilus) from the Federal at the time of listing included grazing by List of Endangered and Threatened FOR FURTHER INFORMATION CONTACT: feral equines, recreational activities Wildlife due to recovery. This action is Stephen P. Henry, Deputy Field (hiking, camping, hunting, and off- based on a review of the best available Supervisor, Ventura Fish and Wildlife highway vehicle (OHV) use), water scientific and commercial information, Office (see ADDRESSES); by telephone diversion, and mining. Potential threats which indicates that the species is no 805–644–1766; or by facsimile (fax) at identified since listing include energy longer threatened with extinction. This 805–644–3958. If you use a development, invasive and nonnative proposed rule, if made final, would also telecommunications device for the deaf plants, predation (including nest remove the currently designated critical (TDD), call the Federal Information parasitism), and climate change. We habitat for the Inyo California towhee Relay Service (FIRS) at 800–877–8339. consider the Inyo California towhee to throughout its range. This document SUPPLEMENTARY INFORMATION: be recovered because all substantial

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threats to the towhee have been delisting rule (see Post-Delisting Previous Federal Actions ameliorated or reduced since listing. All Monitoring Plan Overview section remaining potential threats to the below, which briefly outlines the goals We first classified the Inyo California species and its habitat have been of the draft Post-Delisting Monitoring towhee as a category 1 species in the determined not to constitute a threat, or plan (PDM) plan). Such information December 30, 1982, Notice of Review of are being managed. Our finding is based might include suggestions regarding the Candidate Species (47 FR 58454) as a on the following: draft objectives, monitoring procedures result of habitat loss and degradation. • Data indicate that, since 1998, the for establishing population and habitat Category 1 candidates were those taxa total rangewide population of Inyo baselines, or for detecting variations for which we had substantial California towhees has ranged from 640 from those baselines over the course of information on hand to support the to 741 individuals, indicating a self- at least 5 years. biological appropriateness of proposing sustaining (productivity equals or We will post your entire comment on to list the species as endangered or exceeds mortality rate) population for http://www.regulations.gov. Before threatened. We proposed the towhee for the past 13 years that has increased from including your address, phone number, listing as threatened on November 23, the estimated population of less than email address, or other personal 1984 (49 FR 46174); critical habitat was 200 Inyo California towhees at time of identifying information in your proposed concurrently with the listing in 1987 (52 FR 28780 (August 3, comment, you should be aware that proposed listing. The final listing rule 1987)). your entire comment—including your with critical habitat for the towhee was • Substantial threats to the Inyo personal identifying information—may published on August 3, 1987 (52 FR California towhee and its habitat have be made publicly available at any time. 28780). On the same day the final listing been or are being addressed such that While you can ask us in your comment rule for the towhee was published, we they have been ameliorated or reduced to withhold your personal identifying published a proposal to designate to the point where the species is not information from public review, we additional critical habitat (52 FR 28787); likely to become endangered in the cannot guarantee that we will be able to however, the designation of this foreseeable future throughout its range. do so. • The Service has entered into a additional critical habitat was never Comments and materials we receive, finalized. cooperative management agreement as well as supporting documentation we We published a notice announcing with land managers to show their used in preparing this proposed rule, ongoing commitment to the will be available for public inspection active review and requested information conservation of the Inyo California on http://www.regulations.gov, or by from the public concerning the status of towhee and its habitat (Service et al. appointment during normal business the Inyo California towhee under 2010, entire) (see Recovery section for hours at the Ventura Fish and Wildlife section 4(c)(2) of the Act on March 22, additional details). Office (see ADDRESSES section). 2006 (71 FR 14538). No information Information Requested regarding the status of the Inyo Public Hearing California towhee was received during We intend that this proposed rule and The Act provides for one or more the public comment period. In any final action resulting from it will be September 2008, we completed the 5- based on the best scientific and public hearings on this proposal, if requested. Requests must be received by year review of the Inyo California commercial data available, and be as towhee in which we recommended that accurate and as effective as possible. the date specified in DATES. Such the Inyo California towhee be removed Therefore, we request comments or requests must be made in writing and from the Federal List of Endangered and information from the public, other addressed to the Deputy Field FOR FURTHER Threatened Wildlife (Service 2008, p. governmental agencies, Native Supervisor (see American tribes, the scientific INFORMATION CONTACT section above). 20). We notified the public of completion of the 5-year review on community, industry, or other Background interested parties concerning this March 25, 2009 (74 FR 12878). A copy proposed rule. We particularly seek Section 4(b)(3)(B) of the Act requires of the 2008 5-year review for the Inyo comments concerning: that, for any petition to revise the California towhee is available on the (1) Any threat (or lack thereof) to the Federal Lists of Endangered and Service’s Environmental Conservation Inyo California towhee; Threatened Wildlife and Plants that Online System. (http://ecos.fws.gov/ (2) The range, distribution, and contains substantial scientific or speciesProfile/profile/ location of any additional populations, commercial information that speciesProfile.action?spcode=B07Q) and and population size of the Inyo reclassifying the species may be at http://www.regulations.gov. California towhee; warranted, we make a finding within 12 months of the date of receipt of the On December 21, 2011, we received a (3) Habitat destruction and/or petition dated December 19, 2011, from preservation in relation to the Inyo petition. In this finding, we will determine whether the petitioned action The Pacific Legal Foundation, California towhee; requesting the Service to delist the Inyo (4) Current or planned activities in the is: (a) Not warranted, (b) warranted, or California towhee based on the analysis towhee’s habitat and the possible (c) warranted, but the immediate and recommendations contained in the impacts to the towhee; proposal of a regulation implementing (5) Data on population trends; the petitioned action is precluded by 2008 5-year review for the taxon. On (6) The life history of the Inyo other pending proposals to determine June 4, 2012 (77 FR 32922), we California towhee; and whether species are endangered or published in the Federal Register a 90- (7) Information pertaining to the threatened, and expeditious progress is day finding that stated our conclusion requirements for post-delisting being made to add or remove qualified that the petition presented substantial monitoring of the towhee, including species from the Federal Lists of scientific or commercial information information on how best to conduct Endangered and Threatened Wildlife indicating that the petitioned action post-delisting monitoring should the and Plants. We must publish these 12- (delisting the Inyo California towhee) proposed delisting lead to a final month findings in the Federal Register. may be warranted.

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Species Information Weapons Station, China Lake (NAWS potential habitat in the southern Argus When the Inyo California towhee was China Lake); 26 percent on Bureau of Range, including NAWS China Lake, listed in 1987, it was classified as the Land Management (BLM) land; 5 BLM, and CDFW lands. LaBerteaux and Inyo brown towhee (Pipilo fuscus percent on California Department of Garlinger detected towhees at 210 (81 eremophilus), which was one of eight Fish and Wildlife (CDFW) land; and less percent) of the 258 sites (areas of subspecies of what was then considered than 1 percent on private property suitable riparian habitat often, but not the brown towhee (Pipilo fuscus) (52 FR (LaBerteaux and Garlinger 1998, p. 7; always, associated with springs) 28780, August 3, 1987). In 1989, the LaBerteaux 2004, p. 1; 2008, p. 1; 2011, surveyed and estimated the total towhee American Ornithologists’ Union (AOU) p. 1; Service 2008, p. 23). population to be 640 adults (1998, p. 7). (p. 536) split the brown towhee into two California towhees, including the Inyo A portion of this increase over 1994 California towhee, are omnivorous, unique species, the canyon towhee estimates was likely the result of feeding on seeds, grain, invertebrates (Pipilo fuscus) and the California differences in methodology; however, and fruit, with the composition of their towhee (Pipilo crissalis), dropping the the species was occupying areas not diet changing with food availability name brown towhee altogether. The occupied during the earlier surveys, and (Davis 1957, pp. 129–166). Inyo Inyo California towhee (Pipilo crissalis there were a greater number of towhees California towhees are year-round eremophilus) is classified as a occupying areas that were included in residents, and territories, which range subspecies of the California towhee. previous surveys, indicating that an from 25 to 62 acres (ac) (10 to 25 actual increase had occurred. More recently, the AOU (2010, p. 727) hectares (ha)), are defended by both the In 2004, LaBerteaux conducted changed the scientific name of the male and female, which mate for life. systematic surveys of 93 sites located on California towhee to Melozone crissalis, The breeding season generally starts in BLM and CDFW lands (31 percent of the changing the Inyo California towhee early spring, coinciding with local plant towhee’s range) and detected towhees at scientific name to Melozone crissalis growth and flowering periods. The most 70 (75 percent) of the sites (LaBerteaux eremophilus. The Inyo California frequent clutch size is four eggs, but can 2004, p. 11). LaBerteaux (2004, pp. ii, towhee is listed as Pipilo crissalis range from two to four. Incubation takes 57) estimated the BLM and CDFW eremophilus on the Federal List of about 14 days, and nestlings may fledge population had increased 13.6 percent Endangered and Threatened Wildlife in as little as 8 days after hatching. at those sites that were surveyed in both (50 CFR 17.11), which we consider Fledglings are fed by the adults for at 1998 and 2004. Extrapolating the results equivalent to Pipilo crissalis least 4 weeks, and juveniles are to the 69 percent of the range not eremophilus. These changes did not independent by about 6 weeks of age, included in the survey, LaBerteaux alter where or to what individuals but remain within their natal territory estimated the rangewide population to protections of the Act apply. through the subsequent fall and winter. be 725 adults (LaBerteaux 2004, pp. ii, The Inyo California towhee is The birds reach sexual maturity in the 60). restricted to the southern Argus first breeding season after hatching In 2007, LaBerteaux (2008, entire) Mountains in the Mojave Desert, Inyo (LaBerteaux 1989, pp. 42–48). For conducted systematic surveys of 185 County, California (Service 2008, p. 23). additional information on range and sites on NAWS China Lake land (68 The towhee was thought to have been biology of the Inyo California towhee, percent of the towhee’s range) and more widespread prior to climate see the 2008 5-year status review of the detected towhees at 140 (76 percent) of changes at the beginning of the Pliocene species (Service 2008, entire). the sites (LaBerteaux 2008, p. 10). Epoch (roughly 5.4–2.4 million years We listed the Inyo California towhee LaBerteaux (2008, pp. iii, 11) estimated ago) that constrained the subspecies to as threatened and designated critical the NAWS China Lake population had its current distribution (Davis 1951, pp. habitat in 1987 (52 FR 28780, August 3, increased by 2.8 percent for those sites 1–120). Because the range of Inyo 1987) because of the loss and that were surveyed in both 1998 and California towhee has not changed post- degradation of the dense riparian habitat 2007. Based on the results of the 2007 Pliocene Epoch, it is considered to the towhee requires. Riparian vegetation surveys, in combination with the 2004 currently occupy its entire historical is naturally limited in extent in the surveys on BLM and CDFW lands, range, though there are indications that desert, and destruction of this LaBerteaux (2008, pp. iii, 85) estimated individuals have dispersed outside this vegetation from feral animal grazing, the Inyo California towhee population range in recent years. Within its recreational activities, water diversion, to be 706 to 741 adults rangewide. historical range, the Inyo California and mining (specifically from water In 2011, LaBerteaux (2011, entire) towhee occupies dense riparian diversion for mining activities) had conducted systematic surveys of 93 sites vegetation and adjacent upland habitats. significantly degraded and reduced the on BLM and CDFW lands and detected The riparian habitat, which the towhee towhee’s already limited habitat. towhees at 74 (80 percent) (LaBerteaux relies on for nesting, protection from From 1978 to 1979, towhee 2011, p. 12). This represents a predators, and shade from the desert populations were estimated to be 72– population increase of 6.3 percent for sun, is supported by groundwater-fed 138 individuals (Cord and Jehl 1979, p. those sites that were surveyed in both springs in most cases. However, the 154). At the time of listing in 1987, we 2004 and 2011 (LaBerteaux 2011, pp. ii, amount, quality, and location of habitat estimated the population to have been 12, 63). Based on the results of the 2011 is dynamic and varies annually due to fewer than 200 individuals (52 FR surveys (227 individuals; LaBerteaux its dependence on water and location in 28780). LaBerteaux estimated the 2011, pp. ii, 12), and in combination the desert. The surrounding upland minimum population size of the Inyo with the 2007 surveys on NAWS China habitat on adjacent slopes is used California towhee in 1994 to be 180 Lake (502 individuals; LaBerteaux 2008, extensively for foraging, making these adults based on a combination of her p. 10), the total range-wide population upland areas an important component own observations and data from several is estimated to be 729 adults. of the towhee’s habitat. The distribution other researchers (LaBerteaux 1994, p. Based on the results of the four of the Inyo California towhee’s range 6). In 1998, LaBerteaux and Garlinger systematic surveys conducted over the occurs predominantly on Federal lands: conducted the first systematic surveys 13-year period from 1998 to 2011, the 68 percent on Department of Defense for the Inyo California towhee of what estimated total range-wide population of (Navy) land within the Naval Air was then considered to be nearly all the the towhee has ranged between 640 and

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741 individuals (LaBerteaux 2011, p. Secretary determine whether a species equines, recreational activities, and 66). Though the total range-wide is endangered or threatened (or not) water diversion; however, these threats population has fluctuated, the survey because of one or more of five threat have now all been reduced. Since 1980, results show that abundance has factors. Section 4(b) of the Act requires Navy- and BLM-funded round-ups have increased at previously surveyed sites, that the determination be made ‘‘solely removed more than 9,400 feral equines towhees are occupying new areas in on the basis of the best scientific and (5,884 burros (Equus asinus) and 3,539 their historical range in the Argus commercial data available.’’ Therefore, horses (Equus caballus)) from the region Range, and there has been as much as recovery criteria should help indicate where the towhee occurs (Easley 2012, a four-fold increase in towhee when a species is no longer an in litt.). In addition, both the BLM and abundance since the time of listing endangered species or threatened NAWS China Lake have installed and when the population was less than 200 species because of any of the five are maintaining fencing around some individuals. Furthermore, the results of statutory factors. affected springs occupied by towhees to these surveys indicate there are stable to Thus, while recovery plans provide limit grazing by feral equines increasing population numbers and that important guidance to the Service, (LaBerteaux 2011, p. 65; Campbell 2012, the population is self-sustaining, which States, and other partners on methods of in litt.; Ellis 2012a, in litt., 2013a, in is likely a positive response to those minimizing threats to listed species and litt.). Habitat degradation from conservation actions implemented by measurable objectives against which to recreation has also been reduced in the NAWS China Lake, BLM, and measure progress towards recovery, they many riparian areas by fencing installed CDFW. Finally, indications of potential are not regulatory documents and to protect habitat from feral grazers range expansion, outside of the Argus cannot substitute for the determinations (Service 2008, pp. 12–13). Also, since Range, have been noted with and promulgation of regulations 1998, the number of springs where observations of single birds in the required under section 4(a)(1) of the water diversion was occurring has been Panamint Range. Although portions of Act. A decision to revise the status of or reduced from six to four sites, or by the Coso Range (west of the Argus remove a species from the Federal List about 33 percent (LaBerteaux and Range) and the Panamint Range (east of of Endangered and Threatened Wildlife Garlinger 1998, p. 80; LaBerteaux 2008, the Argus Range) have been included in (50 CFR 17.11) is ultimately based on an Appendix C, Record No. 229, 230; surveys since 1998, no towhees were analysis of the best scientific and LaBerteaux 2011, p. 15; Ellis pers. detected in these areas (LaBerteaux, and commercial data then available to comm. 2012). For a more detailed Garlinger 1998, p. 7; LaBerteaux 2011, determine whether a species is no discussion of threats to the towhee and pp. ii, 12, 19, 64). However, in April longer an endangered species or a measures taken to reduce those threats, 2012, two towhees were observed in threatened species, regardless of see below under Summary of Factors. Surprise Canyon in the Panamint Range, whether that information differs from The efforts by the BLM and NAWS which is roughly 20 miles (mi) (32 the recovery plan. China Lake to protect, improve, and kilometers (km)) east of the Argus Range The following discussion provides a expand the towhee’s riparian habitat (Ellis 2012b, in litt.). While information brief review of recovery planning and corresponded with as much as a four- on the species expanding outside the implementation for the Inyo California fold increase in towhee abundance since Argus Range is preliminary, these towhee, as well as an analysis of the the time of listing. From 1978 to 1979, observations could indicate that current recovery criteria and goals as they relate towhee populations were estimated to populations in the Argus Range may in to evaluating the status of the taxon. be 72–138 individuals (Cord and Jehl some years be producing more The Recovery Plan for the Inyo 1979, p. 154). At the time of listing in individuals than the habitat can support California Towhee (Recovery Plan; 1987, the population was estimated to (than there are territories available) with Service 1998) included criteria for have been fewer than 200 individuals excess individuals dispersing to other delisting the species. The Recovery Plan (52 FR 28780). Based on the results of areas with potentially suitable habitat. It described, in part, the need for the subsequent surveys (see Background is a possible indication of resilient establishment of a population of at least section for details), LaBerteaux (2011, p. populations with positive demographic 400 individuals for a 5-year period 66) estimates the towhee population trends where productivity is equal to or (Service 1998, pp. iii, 14). This ranged from 640 to 741 adults over the exceeds mortality. population goal, based on the best 13-year period from 1998 through 2011. available information at the time, was At the time the recovery plan was Recovery estimated to be the carrying capacity of prepared, we considered that a Section 4(f) of the Act directs us to the towhee’s habitat and represented a population of 400 adults represented a develop and implement recovery plans reproductively self-sustaining self-sustaining population based on for the conservation and survival of population (Service 1998, p. 14). In carrying capacity of the habitat. Based endangered and threatened species addition, the delisting criteria stated on current population estimates (640 to unless we determine that such a plan that threats to the species’ habitat must 741) and surveys (as detailed in the will not promote the conservation of the be reduced and managed, and degraded Background section), the carrying species. Under section 4(f)(1)(B)(ii), habitat must be restored and maintained capacity of available towhee habitat is recovery plans must, to the maximum (Service 1998, p. iii). The recovery considered to be greater than that extent practicable, include: ‘‘Objective, strategy focused on monitoring the estimated at the time of the recovery measurable criteria which, when met, population; managing, reducing, or plan. Given the stable-to-increasing would result in a determination, in eliminating threats to the habitat; and population numbers over the last 13 accordance with the provisions of rehabilitating destroyed or degraded years (and possible range expansions), [section 4 of the Act], that the species habitat. the recovery goal of achieving a self- be removed from the list.’’ However, The Recovery Plan identified sustaining population has been revisions to the list (adding, removing, reduction of threats to the towhee’s achieved. or reclassifying a species) must reflect limited riparian habitat as critical to its The continuation of currently determinations made in accordance recovery (Service 1998, pp. 15–18). The implemented conservation measures with sections 4(a)(1) and 4(b) of the Act. most serious threats to the towhee’s will be important for maintaining the Section 4(a)(1) requires that the riparian habitat were grazing by feral Inyo California towhee’s recovery. In

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2010, the Service entered into a recreational, scientific, or educational natural resources are required by law for cooperative management agreement purposes; (C) disease or predation; (D) all Federal lands on which the Inyo with the NAWS China Lake, BLM, and the inadequacy of existing regulatory California towhee occurs, which CDFW for the ongoing conservation of mechanisms; or (E) other natural or encompass almost 95 percent of the the Inyo California towhee (Service et humanmade factors affecting its species’ range. Management plans are al. 2010, entire). Although not a continued existence. A species may be required to be in effect at all times (in regulatory document and subject to reclassified on the same basis. We may other words, if the revision does not funding availability, this agreement delist a species according to 50 CFR occur, the previous plan remains in includes a commitment by all 424.11(d) if the best available scientific effect) and to be in compliance with signatories to continue implementing and commercial data indicate that the various Federal regulations. Those plans conservation measures for the towhee species is neither endangered nor can be amended to update information regardless of a change in its Federal threatened for the following reasons: (1) and/or State status. The agreement is in The species is extinct; (2) the species or change management direction. The effect until terminated by one of the has recovered and is no longer Regional Plans covering the range of the parties, which requires written endangered or threatened (as is the case towhee were amended in the mid- notification that termination is being with the Inyo California towhee); and/ 2000’s, after approximately 25 years of considered and a meeting by all parties or (3) the original scientific data used at implementation. We anticipate the to attempt to resolve concerns. the time the species was classified were existing plans will be implemented Conservation measures in the agreement in error. approximately another 25 years before include: The ongoing removal of feral A recovered species is one that no being amended again. Further, all equines; protection of riparian areas by longer meets the Act’s definition of Federal and State landowners have fencing when necessary; maintaining threatened or endangered. Determining signed the cooperative management existing fencing; regulating recreational whether a species is recovered requires agreement to provide protection for the use; monitoring and controlling or consideration of the same five categories species (Service et al. 2010, entire). We eliminating nonnative plants; and of threats specified in section 4(a)(1) of anticipate that this cooperative conducting periodic surveys of towhee the Act. For species that are already management agreement will be abundance, habitat condition, and listed as threatened or endangered, this considered in any future land threats. These conservation measures analysis of threats is an evaluation of management plan amendments mirror those described in the Recovery both the threats currently facing the completed by BLM. Second, the Inyo species and the threats that are Plan, and are intended to protect, California towhee has demonstrated a restore, and conserve the towhee’s reasonably likely to affect the species in quick positive response to management habitat. The agreement also includes a the foreseeable future following the over the past 25 years since the species provision that it will be reviewed by all delisting or downlisting and the the agencies every 5 years to ensure that removal or reduction of the Act’s was listed; based on this, we anticipate it is up to date, that conservation protections. being able to detect a species’ response measures continue to be effective, and A species is an ‘‘endangered species’’ to any changes in the management that that any new threats to the towhee or its for purposes of the Act if it is in danger may occur because of a plan habitat are being addressed. of extinction throughout all or a amendment. Therefore, in consideration Conservation measures that have been ‘‘significant portion of its range’’ of the Inyo California towhees’ positive carried out since the agreement was (section 3(6) of the Act) and is a response to management, and the signed in 2010 include the removal of ‘‘threatened species’’ if it is likely to expectation that the next revision of the additional feral equines from the become an endangered species within management plans will address towhee’s range, inspections and repairs the foreseeable future throughout all or continued management that benefits the of fencing around springs, and surveys a ‘‘significant portion of its range’’ towhee, we define the foreseeable future of towhee abundance, habitat, and (section 3(20) of the Act). The Act does for the Inyo California towhee to be the threats on BLM and State lands. not define the term ‘‘foreseeable future.’’ remaining lifespan of the BLM’s For the purposes of this rule, we define Summary of Factors Affecting the Regional Management Plans (last the ‘‘foreseeable future’’ to be the extent updated in 2001 and 2005, 15 years Species to which, given the amount and remaining) and that of the next revision Section 4 of the Act and its substance of available data, we can (25 years), for a total of 40 years. The implementing regulations (50 CFR part anticipate events or effects, or reliably 424) set forth the procedures for listing extrapolate threat trends, such that word ‘‘range’’ in the significant portion species, reclassifying species, or reliable predictions can be made of its range (SPR) phrase refers to the removing species from listed status. concerning the future as it relates to the range in which the species currently ‘‘Species’’ is defined by the Act as status of the Inyo California towhee. exists. For the purposes of this analysis, including any species or subspecies of Specifically, for the Inyo California we will evaluate whether the currently fish or wildlife or plants, and any towhee, we consider two factors: the listed species, the Inyo California distinct vertebrate population segment management of threats and the response towhee, should be considered of any species of fish or wildlife that of the species to management. First, the threatened or endangered. Then we will interbreeds when mature (16 U.S.C. threats to the species have been consider whether any portions of Inyo 1532(16)). A species may be determined successfully ameliorated, largely due to California towhee’s range are in danger to be an endangered or threatened management plans that are currently in of extinction or likely to become species because of any one or a place and expected to stay in place, and endangered within the foreseeable combination of the five factors that are expected to successfully future. described in section 4(a)(1) of the Act: continue to control potential threats The following analysis examines all (A) The present or threatened (BLM 1999, entire; BLM 2001, entire; destruction, modification, or BLM 2005, entire; NAWS China Lake five factors currently affecting, or that curtailment of its habitat or range; (B) 2000, entire; NAWS China Lake 2001, are likely to affect, the Inyo California overutilization for commercial, entire). Management plans that consider towhee within the foreseeable future.

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A. The Present or Threatened The threat of grazing has been pp. 8–10, 41–51), and 2011 (LaBerteaux Destruction, Modification, or reduced by the NAWS China Lake and 2011, pp. 8–10, 14–16, 51–56, Appendix Curtailment of Its Habitat or Range BLM through the reduction in the C), while NAWS China Lake lands were number of feral equines within the surveyed in 1998 (LaBerteaux and Under Factor A in the final listing range of the Inyo California towhee. For Garlinger 1998, pp. 5–6, 65–80, rule (52 FR 28780), we stated that example, in the early 1980s as many as Appendix C) and 2007 (LaBerteaux threats to the Inyo California towhee 7,000 feral equines were estimated to 2008, pp. 8–9, 55–71, Appendix C). The and its habitat included grazing by feral occur on NAWS China Lake (NAWS data from these surveys show that equines, recreational activities, water China Lake 2011, pp. i, 35). Since 1980, recovery actions have resulted in diversion, and mining. Since listing, roundups funded by the NAWS China improvements in the quality of towhee nonnative and invasive plants and Lake and BLM have resulted in the habitat throughout the species’ range. climate change have also been identified removal of more than 9,400 feral On BLM and CDFW lands, the as potential threats (LaBerteaux 2008, equines (5,884 feral burros and 3,539 proportion of sites classified as having pp. 80, 83, 85; Service 2008, pp. 10, 12– feral horses) from the region where the moderate to severe impacts from feral 13; LaBerteaux 2011, p. 67). We did not towhee occurs (Easley 2012, in litt.). equines declined from 69.3 percent in identify climate change as a potential This has reduced the feral equine 1998 to 37.4 percent in 2011. On NAWS threat to the Inyo California towhee in population on NAWS China Lake to 682 China Lake lands, the proportion of sites our 2008 5-year review. However, since feral equines, a reduction of about 90 classified as having moderate to severe that time, we have assessed new percent of the number in the early 1980s impacts from feral equines declined information about climate changes (See (NAWS China Lake 2011, pp. i, 35). The from 61.1 percent in 1998 to 46.4 Climate Change, below). LaBerteaux BLM and NAWS China Lake have percent in 2007. Based on the best (2011, p. 67) also identified energy committed through a cooperative available information, we conclude that development as a potential new threat management agreement with the Service the current level of feral equines does to the towhee; however, there are no to continue working together to remove not constitute a substantial threat to existing energy projects within the range feral equines from the Argus Range, Inyo California towhee as population of the Inyo California towhee, and the with the goal of eliminating feral burros numbers have increased. best available information does not (Service et al. 2010, pp. 5, 7). Based on Management of feral equines is an indicate that any proposed energy the results of their 1998 rangewide ongoing challenge, and often funding development projects are in its range. survey, LaBerteaux and Garlinger and space at storage facilities for Therefore, we do not consider energy identified 12 springs as critically in captured animals are limiting factors; development to be a threat to the Inyo need of fencing to protect them from however, the BLM and NAWS China California towhee. Additionally, we feral equines (1998, pp. 66–79, 91). To Lake continue to coordinate their efforts identified fire and flood as threats to the date, NAWS China Lake and BLM have and are committed to managing feral towhee and its habitat in the 2008 5- fenced a total of 17 springs and are equines per the cooperative year review (Service 2008, pp. 10, 18– committed to fencing additional areas if management agreement (Service et al. 19). All of the above-mentioned impacts high levels of impacts by feral equines 2010, entire) and land management can potentially affect the towhee occur (Service et al. 2010, entire). plans on both BLM and NAWS China through degradation, fragmentation, and Although vandals and erosion Lake property. For example, the NAWS destruction of its habitat, as further occasionally compromise the integrity China Lake has secured funding for feral discussed below. of fencing, the BLM periodically burro removals in fall 2013, and has monitors the condition of fences and repaired and fenced several springs Feral Equines makes repairs when necessary (Ellis (Campbell 2013, in litt.). All Department 2006, pers. comm.; Ellis 2013a, in litt.). of Defense installations, including the One of the most serious threats to the For example, in 2011, the BLM (Ellis NAWS China Lake, are required to Inyo California towhee at the time of 2012a, in litt.) repaired fencing at operate under an Integrated Natural listing was loss or degradation of Christmas Spring after LaBerteaux Resources Management Plan (INRMP), habitat, which was partly due to feral (2011, p. 65) alerted them that feral which is designed to provide for the equines (52 FR 28780). According to equines were accessing the water source conservation and rehabilitation of Cord and Jehl (1979, pp. 79–118) and (LaBerteaux 2011, p. 65). NAWS China natural resources on military lands Laabs et al. (1992, Table 2), most springs Lake has repaired, expanded, or consistent with the use of military that supported Inyo California towhees installed fencing at several springs; installations, per the Sikes Act (16 or riparian vegetation were degraded by however, monitoring occurs U.S.C. 670) (Factor D below). feral burro use and/or human activities infrequently and as time allows As part of their updated INRMP, (mining, for example, discussed below). (Campbell 2012, in litt.). These actions NAWS China Lake has developed a At the time of listing, grazing was are sufficient to maintain the improved Wild Horse and Burro Management Plan widespread throughout the towhee’s status of the habitat, and both BLM and that identifies several goals that would range and had substantially reduced the NAWS China Lake have committed to benefit the Inyo California towhee and ability of these habitats to support continue actions that control threats in its habitat. To summarize, these goals towhees. Grazing by feral equines the cooperative management agreement include: (1) Maintaining the Centennial damages and destroys habitat through (Service et al. 2010, entire). Horse Herd (the herd in the Centennial trampling and browsing of the Since 1998, surveys have been Herd Management Area, which occurs vegetation (52 FR 28780). Feral burros conducted to evaluate impacts of feral adjacent to and overlaps to some degree are destructive to towhee habitat due to equines on the habitat around springs with the range of the towhee) within a their practice of taking dust baths by where towhees occur (referred to as range of 100 to 168 animals, (2) rolling and rubbing themselves on the ‘‘water source surveys’’). Towhee achieving and maintaining a zero burro ground. Up to 10 feet (3 meters) in habitat on BLM and CDFW lands was population, and (3) reducing the horse diameter, these ‘‘burro baths’’ destroy surveyed in 1998 (LaBerteaux and herd to minimize damage to water vegetation and create miniature dust Garlinger 1998, pp. 5–6, 65–80, resources, riparian areas, and uplands, bowls (Cord and Jehl 1979, pp. 79–118). Appendix C), 2004 (LaBerteaux 2004, which would promote the recovery of

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native plant and animal populations slight impact on vegetation, few foot survival and breeding success. Water (NAWS China Lake 2011, pp. i, 36). trails, no OHV activity, and no heavily rights have been appropriated on most Overall, the numbers of feral equines used campsites) in most cases (range, springs situated on BLM-administered have been reduced on the NAWS China 74–88 percent of affected sites) lands for activities such as livestock Lake by about 90 percent (NAWS China (LaBerteaux and Garlinger 1998, pp. 66– grazing and mining (52 FR 28780). In Lake, pp. i, 35). Although some feral 79; LaBerteaux 2004, pp. 42–46). In 1998, water diversion was occurring at equines remain within the range of the 1998, severe human-caused impacts on 6 (2.3 percent) of the 264 sites surveyed towhee, and management of feral BLM and CDFW lands occurred at four for towhees (LaBerteaux and Garlinger equines continues to be an ongoing sites, mainly from heavy OHV use and 1998, pp. 80, 91–92). In 2007 (NAWS issue, landowners are managing for camping activities (LaBerteaux and China Lake lands) and 2011 (BLM/State them as per the cooperative Garlinger 1998, pp. 65, 71, 72, 74). lands), water diversions were occurring management agreement. Further, the However, results from the 2011 survey at only three (two on BLM lands and number of towhees has increased (LaBerteaux 2011, pp. 51, 53, 54) one on NAWS China Lake) of the substantially and their habitat quality indicated that recreational impacts at original six sites or about 1.1 percent of has improved since listing, primarily as these same four sites were reduced. This the 278 sites surveyed for towhees a result of the reduced and managed reduction was likely due to the fact that (LaBerteaux 2011, p. 15). The water numbers of feral equines and three of the four springs had been diversions occurring at the two sites on secondarily due to the management of fenced to exclude feral grazers, which BLM land are for small, domestic use, feral equine access to towhee habitat also excluded recreational users. for which the landowners have legal through fencing. Because the INRMP is In 2004, human-caused impacts on a required document of all Department BLM and CDFW lands were mostly low water rights (Ellis pers. comm. 2012), of Defense installations per the Sikes to negligible (93 percent of sites), and no while excess water from the other site Act (16 U.S.C. 670) with the overarching springs were considered to be severely is diverted by NAWS China Lake to goal of conserving and rehabilitating affected (LaBerteaux 2004, pp. 42–46, ponds downslope (Easley 2012, in litt.). natural resources, we anticipate that this 47). In 2011, severe human impacts The NAWS China Lake may also or a similar plan that addresses feral occurred at three sites on BLM lands occasionally use spring water for certain equine management will be in place in (LaBerteaux 2011, p. 56). However, activities such as dust abatement during the future. Therefore, we conclude that these sites were all located in the construction or maintenance activities. the management of feral equines has Panamint Range, which is outside the However, the INRMP includes a successfully decreased this threat to known historical range of the species. commitment to ensure protection of towhees, and management of this threat No breeding towhees are known to groundwater resources, which is will continue in the future. occur in the Panamint Range necessary to ensure the long-term (LaBerteaux 2011, p. 41), although a few population viability of the Inyo Recreational Activities individual towhees have been observed California towhee, an objective of the Recreation (hiking, camping, hunting, there. Although recreational activities plan (NAWS China Lake 2000, pp. 112, and OHV use) may result in loss and will continue within the range of the 135). degradation of habitat through crushing towhee, they have been reduced and are Despite these water diversions, by vehicles; trampling by hikers, expected to remain at very low levels in habitat remains suitable at these sites. hunters, and campers; cutting for the future due to ongoing management Researchers observed towhees with firewood; and soil compaction. actions and the existing cooperative young, or displaying behavior that Recreational impacts mainly occur on management agreement (Service et al. suggests they have young or a nest BLM and CDFW lands, which are open 2010, entire). Current levels of nearby at the two BLM sites during to the public. The NAWS China Lake is recreation are not having a major impact surveys in 1992, 1998, and 2004 closed to most public uses (Pennix on the towhee as indicated by the (LaBerteaux 2011, Appendix C, Record 2006, pers. comm.), and surveys of increases in the number of towhees and No. 20, 31). Juveniles were also NAWS China Lake lands in 1998 and amount and quality of habitat. The observed at the spring located on NAWS 2007 found that most sites had current level of recreation is expected to China Lake in 1998 (LaBerteaux 1998, negligible or no human-caused impacts continue or decrease into the future pp. 59, 64). The presence of suitable (86 and 96 percent of sites, respectively) based on management commitments. (LaBerteaux and Garlinger 1998, pp. 66– Therefore, based on the best available habitat and observation of towhees 79; LaBerteaux 2008, pp. 56–64). information, we conclude that indicate that sufficient water remains at As of 2011, recreational impacts recreational activities do not constitute these springs to support towhees and mainly occur on BLM and CDFW lands a substantial threat to the Inyo their habitat. Further, the number of (approximately 31 percent of the species California towhee now or in the future. water diversions at towhee-occupied range), but those impacts are limited in sites has decreased slightly and scope and severity (approximately 10 Water Diversion represents approximately 1 percent of percent of sites surveyed had moderate Although water diversion has the the sites (associated with water sources) impacts; LaBerteaux 2011, pp. 51–56). potential to impact towhee breeding surveyed in 2007 and 2011 (Service Human-caused impacts from recreation habitat, it occurs at only a few springs 2013). Despite the ongoing diversions, on BLM and CDFW lands have within the range of the towhee. Water increases in the overall number of remained generally the same from 1998 diversion can reduce the amount of towhees and amount and quality of through 2011 (LaBerteaux and Garlinger water available to maintain healthy habitat have occurred, indicating the 1998, pp. 66–79; LaBerteaux 2011, pp. riparian vegetation. As described in the quantity of water diversion is not 51–56). Many of the sites have had little Species Information section, towhees sufficient to make habitat unsuitable for to no human-caused impacts, likely due rely on riparian vegetation for nesting, the towhee. Therefore, because of the to remoteness of the sites and lack of protection from predators, and shade limited number of springs where water access (range, 37–48 percent of all sites), from the desert sun; consequently, a diversions occur and the limited and where impacts do occur, they are at reduction in riparian vegetation due to amount of water diverted, we conclude a low level (defined as those sites with water diversion could impact their that current levels of water diversion do

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not pose a substantial threat to the Inyo However, the BLM has been removing fire burned about 10 percent of the California towhee now or in the future. tamarisk from several sites, and, as of towhee habitat on NAWS China Lake, 2011, the proportion of sites with and subsequently was followed by a Mining tamarisk on BLM and CDFW lands had flash flood that resulted in the Mining was considered a threat at the been reduced to 5 percent (LaBerteaux additional loss of vegetation and time of listing, but is no longer 2011, pp. 51–56, 65–66). The BLM has increased erosion (LaBerteaux 2006, occurring within the species’ range. also indicated their commitment in the entire). However, within one year, Mining operations usually require the cooperative management agreement to LaBerteaux observed the recovery of use of water, and at the time of listing, removing tamarisk from towhee habitat upland and riparian vegetation and numerous mining claims on BLM land in the future (Service et al. 2010, p. 5). observed towhees in most of the areas occurred within the range of the towhee Little information exists on the effects impacted by the fire and flood and were often associated with springs of these plant species on the Inyo (LaBerteaux 2006, pp. 11–14). (52 FR 28780). Since our 2008 5-year California towhee. The monitoring LaBerteaux (2006, pp. 13–14) also status review, the one mine that reports do not indicate that any towhees observed nonnative plant species such remained within the Argus Mountains have been observed utilizing tamarisk, as red brome (Bromus madritensis) and has been closed, and all mining claims and there is no information regarding cheatgrass (Bromus tectorum) in the have been relinquished (Ellis 2013b, in the towhee’s ability to establish upland habitat and tamarisk in the litt.). Mining was eliminated entirely breeding territories in riparian habitat riparian habitat. from the NAWS China Lake in 1943 (52 dominated by tamarisk (LaBerteaux These natural and manmade events FR 28780). Because there are no longer 2008, p. 83). However, in 2011 an adult may have had a greater impact on the any mines or mining claims in Inyo towhee was observed feeding its Inyo California towhee had they California towhee habitat, we conclude fledglings in carrizo (LaBerteaux 2011, occurred at the time when towhee that mining and associated activities, p. 16). Additionally, other species that numbers were low and riparian habitat such as water diversion, are not a threat are adapted to riparian habitat in the had been reduced and degraded. to the Inyo California towhee now or in southwest, such as the southwestern However, towhees have increased in the future. willow flycatcher (Empidonax trailli abundance and now have a wider Invasive and Nonnative Plants extimus), have been documented to use distribution, and the condition of their tamarisk when nesting and do not habitat has improved, lessening the A potential threat identified appear to suffer from negative impact of such events. In addition, prior subsequent to listing is encroachment of physiological effects (Owen et al. 2005, to the 2005 fire, the Navy updated their invasive and nonnative plant species entire), reduced survivorship, or wildland fire response to include Inyo (LaBerteaux 2008, p. 80; Service 2008, productivity (Sogge et al. 2006 in Sogge California towhee habitat as a protection pp. 10, 12–13). Disturbed areas, such as et al. 2008; Paxton et al. 2007, p. 140). priority (Pennix 2006, pers. comm.). those caused by feral grazers, allow for Although we do not know if or how Presently, we consider these natural and the establishment of nonnative plant these plant species (carrizo, tamarisk) manmade factors to have the potential species including salt cedar (Tamarix affect the habitat of the towhee, these for short-term (one to two breeding spp.) and athel (Tamarix aphylla) invasive and nonnative plants currently seasons) effects on a few individuals or (collectively referred to as tamarisk). comprise only a small portion of the pairs of towhees in a few localized areas Although a native plant, the invasive total amount of habitat available to the at any one time. If these natural and carrizo (Phragmites australis) may towhee and there is no indication that manmade events were to occur in the choke out other riparian vegetation and these plant species may negatively affect future, it is unlikely these events would may not be optimal habitat for towhees. the towhee. cause long-term population-level effects While both tamarisk and carrizo In summary, while these plants occur (i.e., population declines, extirpation continue to occur in towhee habitat, the within towhee habitat, there is no from a site, reduced nesting range, etc.) available information does not establish indication that they are spreading to the because these events typically result in that they are increasing, and both the point of being the dominant vegetation temporary, localized impacts and only BLM and NAWS China Lake have active type in these riparian areas or having a affect a small portion of the towhee’s programs to remove tamarisk from negative impact on the towhee, and the range at a time. Therefore, we conclude springs (Service et al. 2010, pp. 5, 7). On BLM and NAWS China Lake are that fire and flood events do not the NAWS China Lake, the proportion working to control, or in some cases, constitute a threat to the Inyo California of sites with tamarisk increased from 2 eliminate them (Service et al. 2010, pp. towhee now or in the future. percent in 1998 (LaBerteaux and 5, 7). The best available information Climate Change Garlinger 1998, pp. 66–79) to 6 percent does not indicate that nonnative and in 2007 (LaBerteaux 2008, pp. 56–63), invasive plants are threats to the Our analysis under the Act includes while that for carrizo remained at 10 towhee. Therefore, we do not consider consideration of ongoing and projected percent. However, subsequently, the current abundance and distribution changes in climate. The terms ‘‘climate’’ personnel at the NAWS China Lake of a nonnative and invasive species in and ‘‘climate change’’ are defined by the removed tamarisk from several areas a small portion of the towhee’s range a Intergovernmental Panel on Climate (Service et al. 2010, entire; Campbell threat to the species now or in the Change (IPCC). ‘‘Climate’’ refers to the 2012, in litt.) and have indicated their future. mean and variability of different types commitment in the cooperative of weather conditions over time, with 30 management agreement to removing Fires and Floods years being a typical period for such tamarisk from towhee habitat in the We did not identify fires or floods as measurements, although shorter or future (Service et al. 2010, p. 7). The a threat to the Inyo California towhee in longer periods also may be used (IPCC proportion of sites with tamarisk on the final listing. However, these natural 2007a, p. 78). The term ‘‘climate BLM and CDFW lands increased from 4 and manmade disturbances may change’’ thus refers to a change in the percent in 1998 (LaBerteaux and temporarily reduce the habitat of the mean or variability of one or more Garlinger 1998, pp. 66–79) to 8 percent Inyo California towhee in some areas. measures of climate (temperature or in 2004 (LaBerteaux 2004, pp. 42–46). For example, in 2005 a human-caused precipitation, for example) that persists

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for an extended period, typically and duration of precipitation may are a natural feature of the Mojave decades or longer, whether the change increase for California (in general). Desert. The State of California has is due to natural variability, human Based on the information discussed experienced cycles of drought for many activity, or both (IPCC 2007a, p. 78). above, temperatures in the western years. For example, between 1928 and Various types of changes in climate can Mojave Desert, where the Inyo 1987, the U.S. Geological Survey have direct or indirect effects on California towhee occurs, have (USGS) reported five severe droughts species. These effects may be positive, increased and are likely to continue across California, including the longest neutral, or negative, and they may increasing. The uncertainty of drought in the State’s history during the change over time, depending on the evaluating the potential impacts of period 1929–1934 (USGS 2004, p. 2). species and other relevant climate change is complicated by the Increasing temperature could result in considerations, such as the effects of difficulty in predicting how an animal more severe and frequent drought, interactions of climate with other or plant species will respond to climate especially in the Southwest (Karl et al. variables (e.g., habitat fragmentation) change. Some published studies 2009, p. 42). However, we are not aware (IPCC 2007a, pp. 8–14, 18–19). In our describe how biotic communities may of any formal studies on the direct effect analyses, we use our expert judgment to respond to such changes in temperature of rising global temperature on drought weigh relevant information, including and precipitation in the near future severity or frequency (Karl et al. 2009, uncertainty, in our consideration of (Parmesan and Matthews 2005, pp. 333– p. 5). Drought severity and frequency various aspects of climate change. 374; IPCC 2007a, pp. 1–21; IPCC 2007b, are a function of a complex series of Projecting future climate change still pp. 1–22; Jetz et al. 2007, pp. 1211– factors, such as the El-Nin˜ o–Southern includes a considerable degree of 1216; Kelly and Goulden 2008, pp. Oscillation (ENSO) intensity and uncertainty, due in part to uncertainties 11823–11826; Loarie et al. 2008, pp. 1– duration, as well as geographic about future emissions of greenhouse 10; Miller et al. 2008, pp. 1–17). Climate variations in sea surface temperature, gases and to differences among climate change can affect plants and animals in which may also be affected by models and simulations (Stainforth et a number of ways, including changes in increasing temperatures (Karl et al. al. 2005, pp. 403–406; Duffy et al. 2006, distribution, population size, behavior, 2009, p. 105), thereby compounding the pp. 873–874), and to the difficulty in and even changes in physiological and uncertainty associated with predicting change at a local scale. physical characteristics (Parmesan and precipitation projections (Karl et al. Global climate projections are Matthews 2005, p. 373). Depending on 2009, p. 105). Therefore, at this time, we the nature and degree of change within informative, and, in some cases, the lack sufficient tools to predict how the species range, the towhee and its only or the best scientific information climate change may influence the habitat could be negatively affected in available for us to use. However, duration or severity of drought within several ways. For example, desert birds projected changes in climate and related the range of the Inyo California towhee, are anticipated to experience reduced impacts can vary substantially across or how changes in drought patterns survival during extreme heat waves, and within different regions of the might impact the species. which could result in more frequent In summary, predicting the effects of world (e.g., IPCC 2007a, pp. 8–12). large mortality events (McKechnie and climate change upon the Inyo California Therefore, we use ‘‘downscaled’’ Wolf 2010, entire). Based on research on towhee is difficult due to the projections when they are available and other species, higher temperatures could uncertainties of climate projection have been developed through also result in shifts in nesting phenology models, the lack of models for appropriate scientific procedures, (timing of egg laying, hatching, fledging, projecting climate change for relatively because such projections provide higher etc., in relationship to climatic small geographic areas, and the resolution information that is more conditions) and changes in clutch size complexity of interacting factors that relevant to spatial scales used for (McCarty 2001, pp. 322–323; Both and may influence vegetation changes. analyses of a given species (see Glick et Visser 2005, pp. 1610–1611). Because we cannot predict how climate al. 2011, pp. 58–61, for a discussion of As discussed in the ‘‘Species may change within the towhee’s range, downscaling). Regional climate change Information’’ section, the Inyo we cannot make meaningful projections models are available for the area, but California towhee relies on dense, on how the towhee may react to climate lack detail to make meaningful riparian vegetation. Although there is a change or how its habitat may be predictions for specific areas such as the degree of uncertainty about the effect of affected. Therefore, at this time, the best range of the Inyo California towhee climate change on precipitation in the available information does not suggest (Parmesan and Matthews 2005, p. 354). Mojave Desert, a decrease in that climate change is adversely The Western Regional Climate precipitation could result in a reduction affecting the Inyo California towhee. Center’s California Climate Tracker has in the areal extent of riparian patches or developed 11 climate-monitoring a reduction of the density of riparian Summary of Factor A regions for California, including a region vegetation, or potentially both could Impacts to the towhee identified that includes the western Mojave Desert, occur. In some areas the amount of under Factor A in the 1987 listing rule where the Inyo California towhee riparian vegetation could be reduced to (52 FR 28780) have all been reduced. occurs. Data collected from this region the point where it could no longer Habitat destruction from feral equines indicate that mean, maximum, and support towhees. However, none of the has been substantially reduced through minimum temperatures have increased models provide information about how actions taken by the NAWS China Lake during the last 110 years (Redmond climate change might affect the towhee and BLM. Although feral equines 2008, pp. 36–46). How precipitation in or its habitat directly. For example, we remain within the range of the towhee, the western Mojave Desert may change lack the tools to assess how climate and not all riparian areas occupied by is less certain. The IPCC models predict change may affect groundwater levels, towhees have been fenced, the current that precipitation will decrease, but the which feed the springs that support the level of grazing has not hindered the frequency and magnitude of extreme towhee’s riparian habitat. recovery of the species. Habitat losses precipitation events will increase. On Another uncertainty in predicting the from recreation have also been reduced the other hand, Kelly and Goulden potential impact of climate change is the in many riparian areas by fencing (2008, p. 11824) predict that the amount occurrence of periodic droughts, which installed to protect the habitat from feral

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grazers. Water diversion has been existing fences or installing new fencing towhee eggs or nestlings, they have at reduced, and is occurring at only two where necessary, monitoring towhee least once been observed preying on springs occupied by towhees. There are habitat, and controlling or eliminating eggs and nestlings of other desert bird no active mining operations within the nonnative and invasive plants. This species that occur in the area range of the towhee, and all mining agreement has resulted in actions that (LaBerteaux and Garlinger 1998, p. 64), claims have been relinquished. No have decreased threats to the species from which it may be inferred that they available information suggests that and supported recovery, and it is also also prey on towhees. However, towhee nonnative and invasive plants are intended to ensure the long-term population numbers have remained affecting the towhee. While these plants survival of the towhee following stable to increasing over the last 13 occur within towhee habitat, we have delisting. We do not consider grazing by years, which indicates that any no indication that they are spreading to feral equines, recreational activities, predation that may be occurring is not the point of being the dominant water diversion, mining, nonnative and at a level sufficient to cause negative vegetation type in these riparian areas, invasive plants, or climate change to population-level effects. and the BLM and NAWS China Lake are constitute a substantial threat to the While ravens and brown-headed committed to controlling, or in some Inyo California towhee now or in the cowbirds have been documented in cases eliminating, them (Service et al. future. towhee habitat, towhee population 2010, pp. 5, 7). Additionally, as numbers have remained stable to B. Overutilization for Commercial, discussed below in Factor D, multiple increasing over the last 13 years. This Recreational, Scientific, or Educational laws provide protections for the Inyo indicates that while nest parasitism and Purposes California towhee and their habitat, predation may occur or have the including multiple BLM land Overutilization for commercial, potential to occur, they are not designations that overlap with portions recreational, scientific, or educational occurring at a level sufficient to cause or the entire range of the Inyo California uses was not mentioned as a threat negative population-level effects (i.e., towhee, that will continue if the species when the Inyo California towhee was population declines, extirpation from a is delisted. These regulations and land listed (52 FR 28780), and the best site, reduced nesting range, etc.). The designations, and their associated land available information does not indicate best available information does not management plans, have guided many such threats exist at the present time. indicate that predation (including nest of the activities discussed above that Therefore, based on the best available parasitism) is a threat to the Inyo ameliorated these threats. Further, information, we conclude that California towhee; therefore, we although natural and manmade events overutilization is not a threat to the Inyo conclude that predation (including nest such as fire and floods may occur California towhee now or in the future. parasitism) is not a threat to Inyo within the Inyo California towhee range, C. Disease or Predation California towhee now or in the future. they are not likely to occur on a scale Disease or predation was not D. The Inadequacy of Existing or frequency to constitute a threat to the Regulatory Mechanisms species. mentioned as a threat when the Inyo Average temperatures have been California towhee was listed (52 FR If this proposal to delist the Inyo rising in the western Mojave Desert, and 28780). Subsequent to the listing, California towhee is finalized, the this trend will likely continue because LaBerteaux (2011, pp. 13–14) suggested towhee will no longer be protected of climate change. Climate change may that the nest parasitism by brown- under the Act. However, other also affect precipitation and the headed cowbirds (Molothrus ater) or regulatory mechanisms will remain in severity, duration, or periodicity of predation of nestlings by common place after delisting that will continue drought. However, a great deal of ravens (Corvus corax) may negatively to help ensure that future impacts will uncertainty exists as to the rate at which affect nesting success of the Inyo be reduced or minimized, including the the average temperature may increase, California towhee because both species protective provisions of: the California and the effect of climate change on both have been observed to occur in towhee Endangered Species Act of 1984 (CESA; precipitation and drought. In addition to habitat. However, LaBerteaux did not California Fish and Game Code, section the uncertainty associated with how the provide any information that would 2080 et seq.), the California Ecological overall climate of the Mojave Desert indicate that either brown-headed Reserve Act of 1968, the Migratory Bird may change, the impact of climate cowbirds or common ravens are having Treaty Act of 1918 (MBTA; 16 U.S.C. change on the Inyo California towhee an impact or are an actual threat to 703–711; 40 Stat. 755), the Sikes Act (16 will depend on a complex array of other towhees. For example, during surveys in U.S.C. 670), the Federal Land Policy and factors, including how the species and 2011, LaBerteaux (2011, p. 13) Management Act of 1976 (FLPMA; 43 its habitat respond to climate change. In documented brown-headed cowbirds at U.S.C. 1701 et seq.), the Wilderness Act light of all the factors involved, the best only 1 (1.1 percent) of the 93 sites on of 1964 (16 U.S.C. 1131–1136, 78 Stat. available information does not suggest BLM and CDFW lands and found no 890), and the National Environmental climate change is adversely impacting evidence of nest parasitism at any of the Policy Act of 1970 (NEPA; 42 U.S.C. the Inyo California towhee now or in the sites occupied by towhees. The number 4321 et seq.). These protections, taken future. of cowbirds within the range of the together, provide adequate regulatory In addition to the progress that has towhee is extremely low and does not mechanisms to prevent the Inyo been made to improve and protect the pose a threat to towhees. California towhee from becoming Inyo California towhee’s habitat to the Common ravens are more abundant threatened or endangered after it is point that the towhee can now be within the range of the towhee than removed from the Federal List of delisted, we have entered into a cowbirds. For example, in 2011 Endangered and Threatened Wildlife. cooperative agreement with the NAWS LaBerteaux (2011, p. 14) documented The cooperative management China Lake, BLM, and CDFW to common ravens at 39 sites (41.9 agreement, while not a regulatory continue protecting the towhee’s habitat percent) surveyed on BLM and CDFW document, memorializes the after delisting by means of maintaining lands, which was an increase from 13 commitment of the Service, BLM, feral equines at current levels or further sites in 2004. Although common ravens NAWS China Lake, and CDFW to reducing their numbers, maintaining have not been observed preying on coordinating and implementing those

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measures that will result in the long- budgetary limits; however, it provides and coordinate with BLM and CDFW term conservation of the species. an added level of recognition to the (NAWS China Lake, pp. 112–113). The Inyo California towhee is listed as importance of conserving migratory Additionally, the INRMP for NAWS endangered under the California birds and their habitats that are not China Lake has an ecosystem approach Endangered Species Act (CESA), and listed under the Act. The protections of that includes conservation of water the removal of the towhee from the the MBTA and the requirements of the resources, control of exotic species, and Federal List of Endangered and MOU will continue if the Inyo other activities that benefit the towhee Threatened Wildlife will not California towhee is delisted. and its habitat (NAWS China Lake, automatically result in its removal from The continued conservation of the entire). the State list. We are not aware of any Inyo California towhee on the NAWS Through implementation of the plans by CDFW to remove the towhee China Lake lands will also be enhanced INRMP, NAWS China Lake has made from the State list. CESA prohibits by the provisions of the Sikes Act. The significant contributions to recovery of unpermitted possession, purchase, sale, Sikes Act authorizes the Secretary of the Inyo California towhee, such as or take of listed species. However, the Defense to develop cooperative plans reduction of impacts to habitat by CESA definition of take does not with the Secretaries of Agriculture and initiating management prescriptions include harm, which under the Federal the Interior for natural resources on that eliminate feral equines from Act can include destruction of habitat public lands. The Sikes Act riparian areas. The NAWS China Lake is that actually kills or injures wildlife by Improvement Act of 1997 requires currently working to update their significantly impairing essential Department of Defense installations to INRMP, which includes continuation of behavioral patterns (50 CFR 17.3). CESA prepare INRMPs that provide for the management of feral equines, fencing of requires State agencies to consult with conservation and rehabilitation of springs as needed, and other activities CDFW on activities that may affect a natural resources on military lands that benefit the towhee. Additionally, as State-listed species and mitigate for any consistent with the use of military an active military installation, the adverse impacts to the species. The installations to ensure the readiness of NAWS China Lake is closed to most provisions of CESA protections would the Armed Forces. INRMPs incorporate, public uses (Pennix 2006, pers. comm.). apply only on State or private lands, to the maximum extent practicable, The Federal Land Policy and which make up about 5 percent of the ecosystem management principles and Management Act of 1976 (FLPMA) is species range while the remainder of the provide the landscape necessary to the primary Federal law governing most range is on Federal land where other sustain military land uses. INRMPs are land uses on BLM land, which regulatory mechanisms apply (see updated every 5 years, and each version constitutes about 26 percent of the range below). Therefore, the protections must be approved by the Service for of the Inyo California towhee. FLPMA provided by CESA will not change if the compliance with the Sikes Act. While established a public land policy for the Inyo California towhee is delisted. INRMPs are not technically a regulatory BLM; it provides for the management, The Migratory Bird Treaty Act mechanism because their protection, development, and (MBTA) affords certain regulatory implementation is subject to funding enhancement of the BLM lands. FLPMA protections to all native migratory bird availability, they are an added directs the development and species, including the prohibition of conservation tool for improving and implementation of resource take, capture, killing, or possession of maintaining wildlife populations and management plans (RMPs), which direct migratory birds, their eggs, parts, and habitat on military lands. management at a local level, and nests. The MBTA does not protect The Navy owns approximately 68 requires public notice and participation habitat except where activities would percent of the range of the Inyo in the formulation of such plans and directly kill or injure birds (such as California towhee. The NAWS China programs for the management of BLM felling a tree with an active nest), and Lake developed an INRMP (NAWS lands. RMPs authorize and establish does not provide regulatory procedures China Lake 2000, pp. 112–113) that allowable resource uses, resource for permitting incidental take. Executive clearly defines objectives and guidelines condition goals and objectives to be Order 13186 (January 10, 2001) was to aid in the recovery of the Inyo attained, program constraints, general issued to address the responsibilities of California towhee. Specifically, the management practices and sequences, Federal agencies to protect migratory INRMP’s objectives for the Inyo intervals and standards for monitoring birds. This Executive Order directs California towhee are to ensure the long- and evaluating RMPs to determine Federal agencies whose actions have a term population viability; continue to effectiveness, and the need for measurable negative impact on resolve baseline, biological data gaps, amendment or revision (43 CFR 1601.0– migratory bird populations to develop and continue habitat enhancement 5(n)). Memoranda of Understanding (MOU) efforts; and support recovery plan Through FLPMA in 1976, Congress with the Service to promote the efforts to establish stable towhee designated 25 million acres as the conservation of migratory birds. For populations or eventual delisting California Desert Conservation Area example, under the July 31, 2006, MOU (NAWS China Lake, pp. 112–113). (CDCA) (Sec 601 (c)), of which between the Service and the Department Guidelines for the Inyo California approximately half (12 million acres) is of Defense, migratory birds will receive towhee include such actions as: conduct BLM property, and includes the entire certain benefits on military lands by range-wide surveys for towhees, assess range of the Inyo California towhee. incorporation of migratory bird activities that could affect riparian Congress noted the fragility of the conservation into their INRMP, habitat within the towhee’s range, California desert ecosystem that is including developing and implementing enhance springs impacted by horses by ‘‘easily scarred and slow to heal; the monitoring programs. The MOU also fencing areas with a minimum of 3,500 historical, scenic, archeological, provides for habitat protection on square feet, maintain adjacent upland environmental, biological, cultural, Department of Defense installations, habitat for towhee foraging and nesting, scientific, educational, recreational, and with specific attention to riparian fund and support research efforts to economic resources in the California habitats, fire and fuels management, and support towhees, survey potential desert; and that certain rare and invasive species management. Like habitat and riparian habitat that has not endangered species of wildlife, plants, INRMPs, the MOU is subject to been previously surveyed for towhees, and fishes, and numerous archeological

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and historic sites, are seriously In 1964, Congress enacted the restriction of activities that negatively threatened by air pollution, inadequate Wilderness Act with the intent of impact the towhee or its habitat. Federal management authority, and establishing a National Wilderness All Federal agencies are required to pressures of increased use, particularly Preservation System composed of adhere to the National Environmental recreational use, which are certain to federally owned wilderness areas to be Policy Act of 1970 (NEPA; 42 U.S.C. protected in their natural condition for intensify because of the rapidly growing 4321 et seq.) for projects they fund, population of southern California.’’ the use and enjoyment of the people of authorize, or carry out. The Council on the United States. As originally enacted, Congress charged the BLM with Environmental Quality’s regulations for developing and implementing an RMP the Wilderness Act directed only the Secretary of Agriculture to identify areas implementing NEPA (40 CFR parts for the CDCA that provides for the 1500–1518) state that agencies shall immediate and future protection and suitable for wilderness in the National include a discussion on the administration of the public lands in the Forests. In FLPMA, Congress directed environmental impacts of the various California desert within the framework the Secretary of the Interior to identify project alternatives (including the of a program of multiple-use and areas suitable for wilderness on BLM sustained yield, and the maintenance of lands. The 65,000-acre Argus Range proposed action), any adverse environmental quality. Within the range Wilderness Area owned by BLM was environmental effects that cannot be of the Inyo California towhee, the designated in 1994 and includes a avoided, and any irreversible or current BLM land management portion of the Inyo California towhee’s irretrievable commitments of resources documents are the California Desert range. involved (40 CFR 1502). NEPA does not Conservation Area (CDCA) Plan 1980, as Biological resources in designated itself regulate activities that might affect amended (BLM 1999) and other wilderness areas are afforded the the Inyo California towhee, but it does amendments to the CDCA Plan, highest level of protection due to require full evaluation and disclosure of including the West Mojave RMP restriction on uses. The general information regarding the effects of (WEMO Plan) and EIS (BLM et al. 2005) management goals that apply to contemplated Federal actions on and the Northern and Eastern Mojave wilderness areas require that the BLM sensitive species and their habitats. RMP (NEMO) and EIS (BLM et al. 2002). provide for and manage wilderness Although Federal agencies may include WEMO and NEMO management areas, areas for long-term protection and conservation measures for Inyo whose boundaries encompass the range preservation of wilderness, scenic, California towhee as a result of the cultural, and natural characteristics for of the Inyo California towhee, are two of NEPA process, any such measures are recreational, scientific, and educational six planning areas within the CDCA. typically voluntary in nature and are not purposes. To maintain the primeval Typically, RMPs are updated every 30 required by the statute. character and provide for solitude, a years, but may be done updated or less variety of activities are prohibited by the The inadequacy of existing regulatory frequently. The overarching CDCA Plan Wilderness Act within designated mechanisms was not indicated as a defined elements, such as Wildlife wilderness areas. Some of the activities threat to the Inyo California towhee at Elements, which have specific goals not allowed in wilderness areas include listing. Because more than 99 percent of (BLM 1999, p. 21). building roads and structures, the range of the towhee is under Federal Further, BLM designated Areas of commercial activities, use of motorized or State ownership, existing regulatory Critical Environmental Concern (ACEC) vehicles or equipment (including mechanisms, including various laws, as a tool to meet goals of the Wildlife OHVs), and landing of aircraft. regulations, and policies administered Element of the CDCA Plan. The FLPMA In 1994, the State of California by the U.S. Government and CDFW, aid defined ACECs as ‘‘areas within the purchased Indian Joe Canyon, which in abating known threats and provide public lands where special management was the only parcel of Inyo California protective mechanisms for the species attention is required ... to protect and towhee critical habitat under private and its habitat. Primary laws that prevent irreparable damage to important ownership (Service 1998, p. 14). The provide some benefit for the species and historic, cultural, or scenic values, fish area around Indian Joe Springs includes its habitat include the CESA, MBTA, and wildlife resources or other natural about 5 percent of the range of the Inyo Sikes Act, FLPMA, Wilderness Act, and systems or processes, or to protect life California towhee. Under the State of and safety from natural hazards’’ (Sec. NEPA. While most of these laws, California’s Ecological Reserve Act of regulations, and policies are not 103(a)). The CDCA Plan states that 1968, CDFW designated the acquired specifically directed toward protection management prescriptions for ACECs land as the Indian Joe Springs of towhee, they mandate consideration, for identified wildlife resources will Ecological Reserve to protect the towhee management, and protection of include aggressive management actions and its habitat. Ecological Reserves are to halt reverse declining trends and to managed under the California Code of resources that benefit towhees. ensure the long-term maintenance of Regulations (CCR), Title 14, Section 630. Additionally, these laws contribute to wildlife resources (BLM 1999, p. 29). The purpose of ecological reserves is ‘‘to and provide mechanisms for agency Recognizing the significance of the Inyo provide protection for rare, threatened planning and implementation directed California towhee, the BLM established or endangered native plants, wildlife, specifically toward management of the 9000-acre Great Falls Basin/Argus aquatic organism and specialized towhees and their habitat. Because most Range ACEC, primarily to benefit the terrestrial or aquatic habitat types.’’ (14 of these laws and regulations are Inyo California towhee, with the goals of CCR 630) Under 14 CCR 630(a)(1), it is national in scope and are not protecting and enhancing the towhee’s prohibited in any Ecological Reserve to conditional on the listed status of the habitat and protecting scenic resources ‘‘take or disturb any bird or nest, or eggs towhee, we expect these laws and (BLM 1987, pp. 4, 9). In the thereof, or any plant, mammal, fish, regulatory mechanisms to remain in development and revision of land-use mollusk, crustacean, amphibian, reptile, place after the towhee is delisted. plans, the BLM is to ‘‘give priority to the or any other form of plant or animal Therefore, the inadequacy of existing designation and protection of areas of life.’’ Therefore, this Ecological Reserve regulatory mechanisms is not a threat to critical environmental concern’’ (Sec. is to be managed consistent with the Inyo California towhee now or in the 202(c)(3)). needs of the towhee, including future.

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E. Other Natural or Manmade Factors difficult to predict, we are not aware of determined that Inyo California towhee Affecting Its Continued Existence any combination of factors that has not is no longer in danger of extinction We did not identify any threats to the already or would not be addressed throughout all of its range, nor is it Inyo California towhee under Factor E through ongoing conservation measures. likely to become so in the future. As stated previously, NAWS China in the final listing rule (52 FR 28780). Lake and BLM own about 94 percent of Significant Portion of the Range However, natural and manmade the towhee’s range. Conservation Analysis disturbances, such as flooding, erosion, measures implemented by the NAWS Having determined that the towhee and fires, may result in the temporary China Lake and BLM to reduce or does not meet the definition of loss or reduction of suitable habitat for eliminate grazing, recreational use, threatened throughout its range, we next the Inyo California towhee in some water diversions, and mining consider whether there are any areas, which could result in adverse throughout most of the towhee’s range significant portions of its range that are effects to the species. Because the have improved the habitat of the in danger of becoming endangered in potential effects to the towhee are due towhee, which in turn, has led to a the foreseeable future or becoming to habitat loss or destruction, these are substantial increase in towhee extinct. The range of a species can discussed under Factor A. We conclude abundance. Since 1980, the NAWS theoretically be divided into portions in there are no natural or manmade factors China Lake and BLM have removed an infinite number of ways. However, that are a threat to Inyo California more than 9,400 feral equines and have there is no purpose in analyzing towhee now or in the future. fenced 17 springs occupied by towhees portions of the range that have no Conclusion of 5-Factor Analysis to exclude equines. The NAWS China reasonable potential to be significant or Lake is closed to the public, and the in analyzing portions of the range in The reasons for the population BLM has reduced recreational impacts which there is no reasonable potential decline of the Inyo California towhee on its land through fencing of springs for the species to be endangered or and its listing as threatened were habitat (LaBerteaux 2004, p. 47). In 2007 and threatened. To identify only those loss and degradation from feral grazers, 2011, water diversions were occurring at portions that warrant further recreational use, water diversion, and approximately only 1 percent of the consideration, we determine whether mining. New potential threats identified sites included in the surveys there is substantial information since the time of listing include invasive (LaBerteaux 2011, p. 15). The NAWS indicating that: (1) The portions may be and nonnative plants, climate change, China Lake is closed to mining, and all ‘‘significant’’ and (2) the species may be nest parasitism by brown-headed mines on BLM land have been in danger of extinction there or likely to cowbirds and predation by common relinquished. These conservation become so within the foreseeable future. ravens. Although invasive and measures have been highly effective in Depending on the biology of the species, nonnative plants and brown-headed the recovery and protection of the its range, and the threats it faces, it cowbirds and common ravens have been towhee’s riparian habitat and have might be more efficient for us to address documented in Inyo California towhee resulted in a major increase in towhee the significance question first or the habitat, the best available information abundance, from less than 200 at the status question first. Thus, if we does not support that they are having a time of listing (52 FR 28780) to a total determine that a portion of the range is negative impact on the species. Climate population that, since 1998, has ranged not ‘‘significant,’’ we do not need to change may have some effect on the from 640 to 741 individuals (LaBerteaux determine whether the species is species. However, at this time, the best and Garlinger 1998, pp. ii, 7, 63; endangered or threatened there; if we available information does not indicate LaBerteaux 2004, pp. ii, 60; LaBerteaux determine that the species is not that climate change is a threat to this 2008, pp. iii, 85; LaBerteaux 2011, pp. endangered or threatened in a portion of species. 3, 12). The towhee and its habitat are its range, we do not need to determine Although none of the factors expected to continue to be protected if that portion is ‘‘significant.’’ In discussed above is having a major through ongoing conservation measures, practice, a key part of the determination impact on the towhee, a combination of laws, and regulations. The NAWS China that a species is in danger of extinction factors could potentially have a much Lake, BLM, and CDFW own in a significant portion of its range is greater effect. For example, effects of approximately 99 percent of the whether the threats are geographically feral equines on towhee habitat could towhee’s range. Multiple regulations concentrated in some way. If the threats worsen during periods of prolonged, provide protection for Inyo California to the species are essentially uniform severe drought when some water towhee, and additionally, these agencies throughout its range, no portion is likely sources may dry up, resulting in greater have entered into a cooperative to warrant further consideration. pressure from feral equines on the management agreement with the Service Moreover, if any concentration of remaining available water sources, to continue conducting conservation threats to the species occurs only in which would likely degrade towhee measures after the towhee is delisted portions of the species’ range that habitat. However, the impacts of feral (Service et al. 2010, entire). clearly would not meet the biologically equines on towhee habitat can be greatly As discussed above, survey results based definition of ‘‘significant,’’ such reduced or eliminated by installing indicate that over the last 13 years the portions will not warrant further fencing around springs. Almost the number of Inyo California towhees have consideration. entire range of the towhee is under been stable to increasing and that the Applying the process described Federal and State ownership, and the population is self-sustaining, which above, we evaluated the range of the BLM, NAWS China Lake, and CDFW meets one of the criterion for recovery Inyo California towhee to determine if have committed to controlling the outlined in the Recovery Plan. In any area could be considered a number of feral equines and protecting addition, an assessment of factors that significant portion of its range. As noted towhee habitat with fences as needed in may be impacting the species did not above in our Species Information the 2010 cooperative management reveal any significant threats to the section, the Inyo California towhee is agreement (Service et al., 2010, entire). species, now or in the future. We have considered to currently occupy its entire Although the types, magnitude, or carefully assessed the best scientific and historical range, so there has been no extent of cumulative impacts are commercial data available and loss of historic range for this species.

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We consider the ‘‘range’’ of the Inyo have been reduced across the range of Migratory Bird Treaty Act of 1918 California towhee to be the southern the species, and the towhee population (MBTA; 16 U.S.C. 703–711; 40 Stat. Argus Mountains in the Mojave Desert, has rebounded. Another way to identify 755), the Sikes Act (16 U.S.C. 670), the Inyo County, California. We considered portions would be to identify natural Federal Land Policy and Management whether any portions of the range of the divisions within the range that might be Act of 1976 (FLPMA; 43 U.S.C. 1701 et Inyo California towhee were likely to be of biological or conservation seq.), and the Wilderness Act of 1964 both significant and in danger of importance. The range of the Inyo (16 U.S.C. 1131–1136, 78 Stat. 890). extinction or likely to become so. One California towhee is small, but may be These protections, taken together, will possible way to identify portions would naturally divided by streams or provide adequate regulatory be to consider land ownership because watershed. However, given their patchy mechanisms to prevent the Inyo conservation actions, and, therefore, distribution and ability of the species to California towhee from becoming management of threats, could fly across land barriers, no area is likely endangered throughout all of its range potentially differ depending on the to be of greater biological or in the foreseeable future after it is policies and regulations implemented conservation importance than any other removed from the Federal List of by the land owner. As noted earlier, 68 area. We did not find that any portion Endangered and Threatened Wildlife. percent of the towhee’s range is on Navy of the species range has a concentration land, 26 percent is on BLM land, 5 of threats or that any natural divisions Peer Review percent is on CDFW land, and less than in the range exist that would indicate In accordance with our joint policy on 1 percent is on private property. any portion is of greater conservation peer review published in the Federal Potentially, the portions of the towhee’s importance than others and, therefore, Register on July 1, 1994 (50 FR 34270), range on Navy and BLM land could be conclude that no portion warrants we will seek the expert opinions of at significant because of the size of those further consideration. Therefore, based least three appropriate and independent portions. However, while these lands on our evaluation of the current and specialists regarding this proposed rule are managed by different agencies with potential threats to the Inyo California and the draft post-delisting monitoring different laws and policies governing towhee, we conclude that these threats (PDM) plan. The purpose of peer review management practices, there is no are neither sufficiently concentrated nor is to ensure that decisions are based on substantial difference in the of sufficient magnitude to indicate the scientifically sound data, assumptions, conservation actions implemented to species is in danger of extinction or and analyses. We have invited these control threats or the status of the likely to become so in any of the areas peer reviewers to comment during this species among the differing land that support the species, and thus, it is comment period on this proposed rule ownerships. likely to persist throughout its historical and draft PDM plan, and the specific We also considered whether any range. assumptions and conclusions regarding threats are geographically concentrated We have carefully assessed the best the proposed delisting. Accordingly, the in some way that would indicate the scientific and commercial data available final decision may differ from this species could be threatened or and determined that the Inyo California proposal. endangered in that area. The major towhee is no longer in danger of threats to the Inyo California towhee at extinction throughout all or significant Post-Delisting Monitoring Plan the time of listing were the loss and portions of its range, nor is it likely to degradation of riparian habitat become so in the future. As a Section 4(g)(1) of the Act requires us, attributed to feral equines, recreational consequence of this determination, we in cooperation with the States, to activities, water diversion, and mining. are proposing to remove this species implement a monitoring program for not As noted above, feral equines still occur from the List of Endangered and less than 5 years for all species that have throughout the range of the towhee, and Threatened Species under the Act. been recovered and delisted (50 CFR have the potential to adversely affect all 17.11, 17.12). The purpose of this post- Effects of This Rule towhee habitat. However, feral equines delisting monitoring (PDM) is to verify are being adequately managed This proposal, if made final, would that a species remains secure from risk throughout the range of the species, and revise 50 CFR 17.11(h) to remove the of extinction after it has been removed no portion of the species range is Inyo California towhee from the List of from the protections of the Act. The experiencing an increased level of Endangered and Threatened Wildlife PDM is designed to detect the failure of impacts from feral equines. Recreational and would revise 50 CFR 17.95(b) to any delisted species to sustain itself activities are excluded from the NAWS remove designated critical habitat for without the protective measures China Lake because it is closed to the the species. The prohibitions and provided by the Act. If, at any time public; impacts on the towhee’s habitat conservation measures provided by the during the monitoring period, data from recreational activities primarily Act, particularly through sections 7 and indicate that protective status under the occur on BLM and CDFW lands but are 9, would no longer apply to this species. Act should be reinstated, we can initiate subject to management and restrictions Federal agencies would no longer be listing procedures, including, if and are considered to be occurring at required to consult with the Service appropriate, emergency listing under low levels at a limited number of sites. under section 7 of the Act in the event section 4(b)(7) of the Act. Section 4(g) of This level of recreational activity does that activities they authorize, fund, or the Act explicitly requires us to not appear to be having an impact on carry out may affect the Inyo California cooperate with the States in towhees and their habitat. Water towhee. development and implementation of diversion and mining were also more Other regulatory mechanisms will PDM programs, but we remain prevalent on BLM lands historically, but remain in place after delisting that will responsible for compliance with section are now eliminated or reduced to continue to ensure that future impacts 4(g) and, therefore, must remain actively negligible levels. will be reduced or minimized, including engaged in all phases of PDM. We also As we explained in detail in our the protective provisions of: The seek active participation of other analysis of the status of the species, all California Endangered Species Act of entities that are expected to assume major threats (feral equines, recreational 1984 (CESA; California Fish and Game responsibilities for the species’ activities, water diversions, and mining) Code, section 2080 et seq.), the conservation post-delisting.

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Post-Delisting Monitoring Plan Overview or trend in towhee abundance. At the language. This means that each rule we The Service has developed a draft end of each complete survey, all publish must: PDM plan for the Inyo California observations will be used to estimate the (a) Be logically organized, (b) Use the active voice to address towhee. The PDM plan is designed to total number of birds, number of readers directly, verify that the towhee remains secure breeding pairs, and number of unmated (c) Use clear language rather than from risk of extinction after removal birds across the range of the species. In addition to the survey methodology jargon, from the Federal List of Endangered and (d) Be divided into short sections and Threatened Wildlife by detecting for determining towhee abundance, LaBerteaux and Garlinger (1998) also sentences, and changes in its status and habitat (e) Use lists and tables wherever developed a methodology for assessing throughout its known range. The PDM possible. plan would accomplish the objectives habitat condition and threats. These If you feel that we have not met these through cooperation with the NAWS surveys will continue to be conducted requirements, send us comments by one throughout the 12-year post-delisting China Lake, BLM, and CDFW, thus of the methods listed in the ADDRESSES monitoring period to maintain fulfilling the goal to prevent the species section. To better help us revise the consistency between data sets and allow from needing Federal protection once rule, your comments should be as for comparison with previous surveys. again, per the Act. The following briefly specific as possible. For example, you Data from these surveys will be used to describes the measures in the draft PDM should tell us the names of the sections calculate the percent change in the plan that will be implemented during or paragraphs that are unclearly written, number of affected sites from the the monitoring period. These measures which sections or sentences are too previous survey. are discussed in more detail in the draft long, the sections where you feel lists or PDM plan. After each survey, the Service and its tables would be useful, etc. Although the Act has a minimum partners will compare the results with PDM requirement of 5 years, the Inyo those from previous surveys and Paperwork Reduction Act of 1995 California towhee should be monitored consider the implication of any Office of Management and Budget for 12 years following delisting. A 12- observed change in abundance or (OMB) regulations at 5 CFR part 1320, year monitoring period is necessary to threats to the conservation of the which implement provisions of the account for environmental variability species. At the end of the PDM period, Paperwork Reduction Act (44 U.S.C. (e.g., drought) that may affect the the Service will conduct a final internal 3501 et seq.), require that Federal condition of riparian habitat and to review and prepare a final report agencies obtain approval from OMB provide for a sufficient number of summarizing the results of monitoring. before collecting information from the surveys to document any changes in the The final report will include a public. This rule does not contain any abundance of the species. Based on the discussion of whether monitoring new collections of information that frequency of past surveys, a complete should continue beyond the 12-year require approval by OMB under the survey of known and potential towhee period for any reason. Paperwork Reduction Act. This rule will habitat should be conducted every 4 With this notice, we are soliciting not impose recordkeeping or reporting years. The abundance surveys should public comments and peer review on requirements on State or local continue to be accompanied by habitat the draft PDM Plan including its governments, individuals, businesses, or and threats surveys, as in previous objectives and procedures (see Public organizations. An agency may not years. Therefore, the 12-year monitoring Comments Solicited). All comments on conduct or sponsor, and a person is not period will result in a minimum of three the draft PDM plan from the public and required to respond to, a collection of complete surveys of the towhee’s peer reviewers will be considered and information unless it displays a abundance, habitat condition, and incorporated into the final PDM plan as currently valid OMB control number. threats in its known and potential range appropriate. The draft PDM plan will be National Environmental Policy Act during the period of the PDM plan. posted on our Endangered Species However, if a decline in abundance is Program’s national Web page (http:// We determined that we do not need observed or a substantial new threat endangered.fws.gov) and the Ventura to prepare an Environmental arises, post-delisting monitoring may be Fish and Wildlife Office Web page Assessment or an Environmental Impact extended or modified as described (http://fws.gov/ventura) and on the Statement, as defined under the below. Federal eRulemaking Portal at http:// authority of the National Environmental Abundance for the duration of the www.regulations.gov. We anticipate Policy Act of 1969 (42 U.S.C. 4321 et post-delisting monitoring period will be finalizing this plan, considering all seq.), in connection with regulations determined using the same survey public and peer review comments, prior adopted pursuant to section 4(a) of the methodology developed by LaBerteaux to making a final determination on the Act. We published a notice outlining and Garlinger (1998), which has been proposed delisting rule. Although our reasons for this determination in the used for all Inyo California towhee separate from the cooperative Federal Register on October 25, 1983 surveys conducted on Federal and State management agreement with NAWS (48 FR 49244). lands beginning with the 1998 survey. China Lake, BLM, and CDFW, many of This methodology will be used because Government-to-Government the actions in the PDM plan are Relationship With Tribes it is effective at detecting towhees and consistent with those committed to in provides an accurate population the agreement. In concurrence with the President’s estimate. Additionally, use of this memorandum of April 29, 1994, methodology will maintain consistency Required Determinations ‘‘Government-to-Government Relations between data sets and allow for Clarity of the Rule with Native American Tribal comparison with previous population Governments’’ (59 FR 22951), Executive estimates. Observations from those sites We are required by Executive Orders Order 13175, and the Department of visited in a single season are compared 12866 and 12988 and by the Interior’s manual at 512 DM 2, we with those made at the same sites in Presidential Memorandum of June 1, readily acknowledge our responsibility previous years to determine any change 1998, to write all rules in plain to communicate meaningfully with

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recognized Federal tribes on a DEPARTMENT OF THE INTERIOR regulations, the Director of the U.S. Fish government-to-government basis. We and Wildlife Service is authorized to have determined that there are no tribal Fish and Wildlife Service issue, by publication in the Federal lands affected by this proposal. Register, a depredation order to permit 50 CFR Part 21 the taking of migratory game birds References Cited [Docket No. FWS–R9–MB–2011–0100; under certain conditions if the Director A complete list of all references cited FF09M21200–134–FXMB1232099BPP0] receives evidence clearly showing that the migratory game birds have in this rule is available on the Internet RIN 1018–AX92 accumulated in such numbers in a at http://regulations.gov or upon request particular area as to cause or about to from the Field Supervisor, Ventura Fish Migratory Bird Permits; Removal of cause serious damage to agricultural, and Wildlife Office (see FOR FURTHER Regulations Concerning Certain Depredation Orders horticultural, and fish cultural interests. INFORMATION CONTACT section). Under 50 CFR 21.45, landowners, Author AGENCY: Fish and Wildlife Service, sharecroppers, tenants, or their Interior. employees or agents, actually engaged The primary author of this proposed ACTION: Proposed rule. in the production of rice in Louisiana, rule is the Ventura Fish and Wildlife may, without a permit and in Office (see FOR FURTHER INFORMATION SUMMARY: We propose to remove accordance with certain conditions, take CONTACT). regulations that set forth certain purple gallinules (Ionornis martinica) depredation orders for migratory birds. when found committing or about to List of Subjects in 50 CFR Part 17 There have been no requests for commit serious depredations to growing authorization of a depredation order Endangered and threatened species, rice crops on the premises owned or under these regulations for many years, Exports, Imports, Reporting and occupied by such persons. and no reports of activities undertaken Under 50 CFR 21.46, landowners, recordkeeping requirements, and under these regulations in the last 15 Transportation. sharecroppers, tenants, or their years. Because these regulations employees or agents actually engaged in Proposed Regulation Promulgation apparently are unused, we propose to the production of nut crops in remove them. Control of depredating Washington and Oregon may, without a Accordingly, we propose to amend birds could still be undertaken under permit and in accordance with certain part 17, subchapter B of chapter I, title depredation permits in accordance with conditions, take scrub jays (Aphelocoma 50 of the Code of Federal Regulations, the regulations at 50 CFR 21.41. coerulescens) and Steller’s jays as set forth below: DATES: Electronic comments on this (Cyanocitta stelleri) when found proposal via http://www.regulations.gov committing or about to commit serious PART 17—ENDANGERED AND must be submitted by 11:59 p.m. Eastern depredations to nut crops on the THREATENED WILDLIFE AND PLANTS time on February 3, 2014. Comments premises owned or occupied by such submitted by mail must be postmarked persons. ■ 1. The authority citation for part 17 no later than February 3, 2014. All of these regulations were put in continues to read as follows: ADDRESSES: You may submit comments place in 1974, to help commercial Authority: 16 U.S.C. 1361–1407; 1531– by either one of the following two agricultural interests (for 50 CFR 21.42 1544; 4201–4245; unless otherwise noted. methods: and 21.45, see 39 FR 1157, January 4, • Federal eRulemaking portal: http:// 1974; for 50 CFR 21.46, see 39 FR § 17.11 [Amended] www.regulations.gov. Follow the 31325, August 28, 1974). 50 CFR 21.45 ■ 2. Amend § 17.11(h) by removing the instructions for submitting comments and 21.46 require reporting and on Docket FWS–R9–MB–2011–0100. entry for ‘‘Towhee, Inyo California’’ recordkeeping on activities taken in • U.S. mail or hand delivery: Public accordance with the regulations. We under ‘‘Birds’’ in the List of Endangered Comments Processing, Attention: FWS– have received no applications for and Threatened Wildlife. R9–MB–2011–0100; Division of Policy declaration of a depredation order under § 17.95 [Amended] and Directives Management; U.S. Fish § 21.42 in the last 15 years, and there and Wildlife Service; 4401 North Fairfax have been no reports of activities ■ 3. Amend § 17.95(b) by removing the Drive, MS 2042–PDM; Arlington, VA conducted under § 21.45 or § 21.46 in at entry for ‘‘Inyo Brown Towhee (Pipilo 22203–1610. least 10 years. We therefore propose to Fuscus Eremophilus)’’. We will not accept email or faxes. We remove these regulations. This action Dated: October 23, 2013. will post all comments on http:// would remove outdated, unused www.regulations.gov. This generally Stephen Guertin, regulations from the Code of Federal means that we will post any personal Regulations (CFR), thereby saving the Acting Director, U.S. Fish and Wildlife information that you provide. See the Federal Government the annual cost of Service. Public Comments section below for republishing them in the CFR. [FR Doc. 2013–26122 Filed 11–1–13; 8:45 am] more information. If this proposal is adopted, control of BILLING CODE 4310–55–P FOR FURTHER INFORMATION CONTACT: depredating birds could still be George T. Allen, at 703–358–1825. undertaken under depredation permits, SUPPLEMENTARY INFORMATION: in accordance with 50 CFR 21.41. Further, issuing a depredation permit Background would be more likely to promptly help The regulations we propose to remove resolve depredation problems than all deal with depredating migratory would a depredation order to be birds. 50 CFR 21.42 governs control of published in the Federal Register, as the depredating migratory game birds in the regulation at 50 CFR 21.42 currently United States; under this section of the requires.

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