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Tuesday,

December 12, 2006

Part II

Department of the
Interior
Fish and Wildlife Service

50 CFR Part 17
Endangered and Threatened Wildlife and
Plants; Designation of Critical Habitat for
the Laguna Mountains Skipper (Pyrgus
ruralis lagunae); Final Rule
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74592 Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations

DEPARTMENT OF THE INTERIOR relevant only when, in the absence of statute, make critical habitat the subject
designation, destruction or adverse of excessive litigation. As a result,
Fish and Wildlife Service modification of the critical habitat critical habitat designations are driven
would in fact take place (in other words, by litigation and courts rather than
50 CFR Part 17 other statutory or regulatory protections, biology, and made at a time and under
RIN 1018–AU50 policies, or other factors relevant to a timeframe that limits our ability to
agency decisionmaking would not obtain and evaluate the scientific and
Endangered and Threatened Wildlife prevent the destruction or adverse other information required to make the
and Plants; Designation of Critical modification); and (3) designation of designation most meaningful.
Habitat for the Laguna Mountains critical habitat triggers the prohibition In light of these circumstances, the
Skipper (Pyrgus ruralis lagunae) of destruction or adverse modification Service believes that additional agency
of that habitat, but it does not require discretion would allow our focus to
AGENCY: Fish and Wildlife Service, specific actions to restore or improve return to those actions that provide the
Interior. habitat. greatest benefit to the species most in
ACTION: Final rule. Currently, only 475 species or 36 need of protection.
percent of the 1,310 listed species in the
SUMMARY: We, the U.S. Fish and Procedural and Resource Difficulties in
U.S. under the jurisdiction of the
Wildlife Service (Service), are Designating Critical Habitat
Service have designated critical habitat.
designating critical habitat for the We address the habitat needs of all We have been inundated with
Laguna Mountains skipper (Pyrgus 1,310 listed species through lawsuits for our failure to designate
ruralis lagunae) pursuant to the conservation mechanisms such as critical habitat, and we face a growing
Endangered Species Act of 1973, as listing, section 7 consultations, the number of lawsuits challenging critical
amended (Act). In total, approximately section 4 recovery planning process, the habitat determinations once they are
6,242 acres (ac) (2,525 hectares (ha)) fall section 9 protective prohibitions of made. These lawsuits have subjected the
within the boundaries of the critical unauthorized take, section 6 funding to Service to an ever-increasing series of
habitat designation. The critical habitat the States, the section 10 incidental take court orders and court-approved
is located in San Diego County, permit process, and cooperative, settlement agreements, compliance with
California, on lands under Federal nonregulatory efforts with private which now consumes nearly the entire
(3,516 ac (1,423 ha)), State (381 ac (154 landowners. The Service believes that it listing program budget. This leaves the
ha)), and private (2,345 ac (948 ha)) is these measures that may make the Service with little ability to prioritize its
ownership. difference between extinction and activities to direct scarce listing
DATES: This rule becomes effective on survival for many species. resources to the listing program actions
January 11, 2007. In considering exclusions of areas with the most biologically urgent
originally proposed for designation, we species conservation needs.
ADDRESSES: Comments and materials The consequence of the critical
evaluated the benefits of designation in
received, as well as supporting habitat litigation activity is that limited
light of Gifford Pinchot Task Force v.
documentation used in the preparation listing funds are used to defend active
United States Fish and Wildlife Service.
of this final rule, will be available for lawsuits, to respond to Notices of Intent
In that case, the Ninth Circuit
public inspection, by appointment, (NOIs) to sue relative to critical habitat,
invalidated the Service’s regulation
during normal business hours, at the defining ‘‘destruction or adverse and to comply with the growing number
Carlsbad Fish and Wildlife Office, 6010 modification of critical habitat.’’ In of adverse court orders. As a result,
Hidden Valley Road, Carlsbad, CA response, on December 9, 2004, the listing petition responses, the Service’s
92011 (telephone 760/431–9440). The Director issued guidance to be own proposals to list critically
final rule, economic analysis, and maps considered in making section 7 adverse imperiled species, and final listing
are available via the Internet at http:// modification determinations. This determinations on existing proposals are
www.fws.gov/carlsbad/. critical habitat designation does not use all significantly delayed.
FOR FURTHER INFORMATION CONTACT: Jim the invalidated regulation in our The accelerated schedules of court-
Bartel, Field Supervisor, Carlsbad Fish consideration of the benefits of ordered designations have left the
and Wildlife Office, telephone, 760/ including areas in this final designation. Service with limited ability to provide
431–9440; facsimile, 760/431–9624. The Service will carefully manage for public participation or to ensure a
SUPPLEMENTARY INFORMATION: future consultations that analyze defect-free rulemaking process before
impacts to designated critical habitat, making decisions on listing and critical
Role of Critical Habitat in Actual habitat proposals, due to the risks
particularly those that appear to be
Practice of Administering and associated with noncompliance with
resulting in an adverse modification
Implementing the Act judicially imposed deadlines. This in
determination. Such consultations will
Attention to and protection of habitat be reviewed by the Regional Office prior turn fosters a second round of litigation
is paramount to successful conservation to finalizing to ensure that an adequate in which those who fear adverse
actions. The role that designation of analysis has been conducted that is impacts from critical habitat
critical habitat plays in protecting informed by the Director’s guidance. designations challenge those
habitat of listed species, however, is On the other hand, to the extent that designations. The cycle of litigation
often misunderstood. As discussed in designation of critical habitat provides appears endless, and is very expensive,
more detail below in the discussion of protection, that protection can come at thus diverting resources from
exclusions under ESA section 4(b)(2), significant social and economic cost. In conservation actions that may provide
there are significant limitations on the addition, the mere administrative relatively more benefit to imperiled
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regulatory effect of designation under process of designation of critical habitat species.


ESA section 7(a)(2). In brief, (1) is expensive, time-consuming, and The costs resulting from the
designation provides additional controversial. The current statutory designation include legal costs, the cost
protection to habitat only where there is framework of critical habitat, combined of preparation and publication of the
a federal nexus; (2) the protection is with past judicial interpretations of the designation, the analysis of the

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economic effects and the cost of analysis (DEA) during a comment Peer Reviewer Comments
requesting and responding to public period that opened July 7, 2006 (71 FR (1) Comment: One peer reviewer
comment, and in some cases the costs 38593) and closed on August 7, 2006. stated that the PCEs appear appropriate;
of compliance with the National We contacted appropriate Federal, State, however use of the alternate hostplant
Environmental Policy Act (NEPA). and local agencies; scientific Potentilla glandulosa may not be
These costs, which are not required for organizations; and other interested necessary or essential because its use
many other conservation actions, parties and invited them to comment on may be limited to special circumstances.
directly reduce the funds available for the proposed rule during these three Our Response: We agree P. glandulosa
direct and tangible conservation actions. comment periods. use appears to be limited to special
Background During the first comment period, we circumstances, but we believe the
It is our intent in this document to received 8 comment letters directly scientific information available (Pratt
reiterate and discuss only those topics addressing the proposed critical habitat 2006, p. 4) indicates it increases
directly relevant to the development designation: 4 from peer reviewers, 1 population survival probability in
and designation of critical habitat or from a Federal agency, and 3 from circumstances where this alternate
relevant information obtained since the organizations or individuals. During the hostplant co-occurs with the most
final listing. For more information on second comment period, we received 1 commonly utilized hostplant, Horkelia
the biology and ecology of the Laguna comment letter from a Federal agency clevelandii. Under special
Mountains skipper, refer to the final and 1 transcribed statement from an circumstances (e.g. dry environmental
rule listing this species as endangered organization during the public hearing conditions), the Laguna Mountains
published in the Federal Register on directly addressing the proposed critical skipper is likely to use this alternate
January 16, 1997 (62 FR 2313), and the habitat designation. During the final hostplant that grows more commonly in
proposed critical habitat rule for the comment period associated with the shaded areas, and have a higher survival
Laguna Mountains skipper published in DEA, we received 1 comment letter from rate as compared to use of H. clevelandii
the Federal Register on December 13, a Federal agency and 1 comment from under the same special circumstances.
2005 (70 FR 73699). (2) Comment: One peer reviewer
an organization directly addressing the
commented that we should use presence
Previous Federal Actions proposed critical habitat designation
of the hostplant, Potentilla glandulosa,
and the draft economic analysis.
Previous Federal actions for the as a criterion to identify critical habitat
Laguna Mountains skipper can be found In total, seven commenters supported in addition to Horkelia clevelandii.
in the proposed critical habitat rule designation (2 comments were from the Our Response: As stated in our
published in the Federal Register on same commenter) of critical habitat for response to Comment 1, we believe P.
December 13, 2005 (70 FR 73699). the Laguna Mountains skipper, two glandulosa may only be a necessary or
On January 10, 2003, the Center for opposed designation (2 comments were essential hostplant for population
Biological Diversity (Center) filed a from the same commenter), and one survival in circumstances where it co-
lawsuit against the Service for violations commenter expressed neither support occurs with H. clevelandii. Also, while
under the Act and the Administrative nor opposition to the proposed critical the use by the Laguna Mountains
Procedure Act (5 U.S.C. Subchapter II) habitat designation. Comments received skipper of P. glandulosa as a hostplant
for the Service’s failure to designate are addressed in the following summary has been documented (Pratt 1999, p. 10;
critical habitat for the species (CBD v. and incorporated into the final rule as Osborne 2005), we have no occurrence
USFWS Civ. No. 03–0058-BTM (NLS)). appropriate. data for P. glandulosa. Therefore, we are
In a stipulated settlement agreement unable to map areas occupied by this
Peer Review hostplant species as critical habitat.
dated July 29, 2003, the Service agreed
to reconsider its ‘‘not prudent’’ finding In accordance with our policy (3) Comment: Two peer reviewers
and propose critical habitat, if prudent, published on July 1, 1994 (59 FR suggested subunits should be connected
on or before November 30, 2005, and to 34270), we solicited expert opinions because areas between subunits are
publish a final critical habitat rule, if essential for Laguna Mountains skipper
from six knowledgeable individuals
prudent, on or before November 30, movement. Both reviewers stated
with scientific expertise that included
2006. This final rule complies with the Laguna Mountains skippers disperse
familiarity with the species, the
settlement agreement. farther than 20 meters, and cautioned
geographic region in which the species
reliance on mark-release-recapture
Summary of Comments and occurs, and conservation biology
studies because they tend to
Recommendations principles. We received responses from
underestimate dispersal ability. One
four of the peer reviewers. Peer
We requested comments from the reviewer stated he has observed a male
reviewers generally concurred with our
public on the proposed designation of Laguna Mountains skipper flying over
critical habitat for the Laguna methods and conclusions and provided
trees; another stated he has seen Laguna
Mountains skipper during three additional information, clarifications,
Mountains skippers fly over 50 meters
comment periods. The first comment and suggestions to improve the final in seconds, and into forested areas
period opened on December 13, 2006, critical habitat rule. Peer reviewer without returning.
associated with the publication of the comments are addressed in the Our Response: We appreciate the
proposed rule (70 FR 73699) and closed following summary and incorporated information and agree that connectivity
on February 13, 2006. The second into the final rule as appropriate. between subunits should be maintained
comment period opened on April 13, We reviewed all comments received to provide for species’ movement.
2006, associated with the from the peer reviewers and the public However, we based the delineation of
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announcement of a public hearing held for substantive issues and new critical habitat on the presence of the
on April 22, 2006, in Carlsbad, CA (71 information regarding critical habitat for species or the presence of the primary
FR 19157), and closed on May 15, 2006. the Laguna Mountains skipper, and constituent elements (PCEs) (e.g.
We also requested comments on the addressed them in the following hostplants within forest openings). Most
proposed rule and draft economic summary. areas between subunits are not known

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74594 Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations

to contain either the species or the (Pratt 1999, p. 7). All observations of ‘‘upper Boiling Springs survey site’’ has
PCEs. Movement areas cannot be adult skippers have been at the El greatly reduced the abundance and
identified as a PCE because, as reviewer Prado/Laguna Campground. A single diversity of skipper species in the past
comments indicated, areas that allow skipper larval shelter was found in 1997 3 to 4 years. He expressed the opinion
butterfly flight are relatively all- at the Meadow Kiosk, along Sunrise that water loss has resulted in
inclusive and thus cannot be Highway (Pratt 1999, p. 27). Despite extirpation of the ‘‘Hilda blue butterfly’’
specifically described in a relevant way recent intensive survey efforts at from Palomar Mountain and stated that
that differentiates essential habitat from historical locations and select areas ground water monitoring is crucial for
non-essential habitat. Also, as a result of considered to be suitable skipper habitat maintaining populations of the Laguna
movement areas being relatively all- (Faulkner 2000, p. 2; 2001, p. 2; 2002, Mountains skipper.
inclusive, we do not know what specific p. 1; 2003, p. 2; 2004, p. 2; Osborne Our Response: We appreciate this
geographic areas between subunits are 2002, p. 2; 2003, p. 2), such as Agua information and concurrence with our
essential for movement. Although a Dulce campground, adult skippers have PCEs and criteria used to identify
greater ability to disperse than not been seen on Laguna Mountain critical habitat. We agree that water
commonly hypothesized would mean since 1999. However, not all suitable availability is important for the species’
more frequent movement among habitat habitat has been intensively surveyed conservation which is why it was
patches than indicated in the proposed and low density populations are included as a primary constituent
critical habitat rule, it would not change difficult to detect. We agree captive element in the proposed and this final
how we identified critical habitat. See breeding may be necessary to ensure critical habitat rule.
the Criteria Used To Identify Critical long-term survival of the species on (8) Comment: One peer reviewer
Habitat section below for more Laguna Mountain. disagreed with our statement ‘‘few,
information. (6) Comment: One peer reviewer incomplete or no recent surveys have
(4) Comment: One peer reviewer commented that the proposed critical been conducted at sites not known to be
noted compatibility of grazing with habitat rule alluded to the Laguna occupied [Subunits 1B & 1C].’’ He stated
Laguna Mountains skipper occupancy Mountains skipper fitting a that most sites on Laguna Mountain
depends not only on cattle density, but metapopulation distribution, while such have been surveyed during the past 3 to
also environmental conditions. He distribution has not been established 4 years, with negative results. He further
stated that while cattle do not normally through research. He also stated the stated that this does not mean the
eat hostplants during larval butterfly critical habitat designation was based on Laguna Mountains skipper is absent
development, he has observed heavy the species representing a from those areas, but ‘‘rather has not
grazing on hostplants during drought metapopulation behavior. been encountered during first
years on Laguna Mountain. Our Response: We do not know what
generation protocol surveys.’’
Our Response: We appreciate this type of population dynamics the species
information and have incorporated it exhibits and did not intend to imply Our Response: We appreciate the
into the Special Management that we did understand such dynamics. correction. To clarify, the majority of
Considerations or Protection section of Under the Species Status and high-quality habitat sites on Laguna
this final rule. We will also consider Distribution section of the proposed Mountain have been regularly surveyed
this information in future management rule, our statement, ‘‘If the Laguna for the past 3 to 4 years; however, some
recommendations. Mountains skipper populations are areas remain unsurveyed or only
(5) Comment: One peer-reviewer characterized by metapopulation sporadically surveyed. We also agree
stated that the Laguna Mountains dynamics, habitat patches within the this does not mean the Laguna
skipper may be extirpated on Laguna population distribution not occupied at Mountains skipper is absent from those
Mountain, and captive breeding is the any given time are still required for areas which are adjacent to occupied
only way to ensure long-term survival of population viability,’’ was intended to habitat or were historically occupied.
the species. convey that not all suitable habitat is (9) Comment: One peer reviewer
Our Response: We acknowledge occupied at the same time and habitat questioned why subunits 1B and 1C
individuals have not been detected in that does not appear to be occupied at were proposed for designation, because
this unit since 1999 (Pratt 1999, p. 7), a given time is still important for no Laguna Mountains skippers have
and any remaining populations are not population viability. We delineated been recorded from these units. She
likely to be resilient enough to survive critical habitat on Palomar and Laguna questioned why these specific areas
into the foreseeable future under current Mountains based on the following were selected rather than other sites on
conditions. However, because criteria (and not on metapopulation Laguna Mountain where the hostplant
insufficient evidence exists to conclude behavior): (1) Meadow complexes grows.
Laguna Mountain no longer supports an occupied by the Laguna Mountains Our Response: As stated in our
extant population in Unit 1, a skipper at the time of listing; (2) response to Comment 5 we acknowledge
presumption of extirpation would be meadow complexes known to be populations on Laguna Mountain
premature. Even more detectable and currently occupied; and (3) meadow appear to be small; however,
highly surveyed butterfly populations complexes historically, but not known insufficient evidence exists to conclude
that appeared to have been extirpated to be currently, occupied but considered Laguna Mountain no longer supports an
have been rediscovered, at least essential to the conservation of the extant population. Subunits 1B and 1C
temporarily (e.g. Basu 1997, p.1, Essig species. For more information see the were included in the designation
Museum 2006). Surveys of varying Criteria Used To Identify Critical because: (1) These areas were
intensity and duration were conducted Habitat section below. considered to be historically occupied
in 8 of the 10 years between 1994 and (7) Comment: One peer reviewer by the species; (2) they are the nearest
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2003. During this 10-year period, only stated that he agreed meadows are to the occupied unit 1C where our data
four adult skippers were found: A single essential for survival of the species, and indicates they contain high densities of
individual in 1995 (Levy 1997, pp. i– dependable water sources must be hostplant; and (3) they are likely to be
xxvi); one adult in 1996 (Levy 1997, pp. available. He expressed concern that important future species reintroduction
i–xxvi); and at least two adults in 1999 loss of water in Laguna Mountain’s sites on Laguna Mountain.

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(10) Comment: One peer reviewer Our Response: We agree that there is Mountains skipper habitat, and the
stated it was not known if all areas a high amount of uncertainty inherent benefits of including these areas within
proposed as critical habitat were in the population estimates and the critical habitat are not outweighed by
essential to conservation of the species. effect of factors such as disease, any potential benefits of excluding the
However, she also stated it seemed parasitism, and predation on the areas (see Exclusions Under Section
appropriate to designate patches of population may not be accurately 4(b)(2) of the Act section of this final
meadow habitat with hostplants reflected. However, even with these rule for a detailed discussion).
between, and adjacent to, recent limitations, the population estimates Therefore, we did not exclude Forest
sightings of the Laguna Mountains outlined in the proposed rule are Service lands from the final designation
skipper. currently the best available information. under section 4(b)(2) of the Act.
Our Response: As described in the We appreciate this information and will (15) Comment: One commenter stated
Criteria Used to Identify Critical Habitat consider it in future management that lands managed by the Cleveland
section of the proposed rule and this recommendations. National Forest should not be excluded
final rule, we delineated critical habitat from critical habitat designation based
to include patches of meadow habitat Public Comments on their Land Management Plan because
with hostplants between and adjacent to (14) Comment: Two commenters the plan provides few specific benefits
recent sightings of Laguna Mountains stated that U.S. Forest Service (Forest to the species.
skippers. We cannot determine what Service or USFS) actions to date, and Our Response: For reasons discussed
geographic scale the peer reviewer was land management plans addressing in the response to Comment 14 above,
referring to. conservation of Laguna Mountains we did not exclude Forest Service lands
(11) Comment: One peer reviewer skipper habitat, should result in from the final designation under section
stated she agreed that no areas outside exclusion of Cleveland National Forest 4(b)(2) of the Act.
of our proposed designation should lands from critical habitat designation. (16) Comment: Two commenters
have been proposed for designation. Our Response: We acknowledge the asserted that the Laguna Mountains
However, she also stated that of the Cleveland National Forest has skipper may be extirpated on Laguna
areas not proposed for critical habitat implemented measures to minimize Mountain; therefore designation of
designation, the area most likely to be impacts to the Laguna Mountains critical habitat at that location is not
essential is Dyche Valley on Palomar skipper. We also acknowledge two appropriate.
Mountain, south of Mendenhall Valley. existing Forest Service management Our Response: As discussed in our
Our Response: We appreciate this plans contain general provisions for response to Comment 5 above,
information and concurrence with our conservation of the Laguna Mountains insufficient information exists to
proposed designation. We included a skipper: the Land Management Plan for conclude Laguna Mountain no longer
discussion in the proposed rule of the Cleveland National Forest (LMP, supports an extant population in Unit 1.
unoccupied areas that may contain Forest Service 2005, pp. 1–57) and a Therefore, we cannot agree at this time
suitable habitat for the species as part of habitat management guide for four with the commenter’s assertion. Also, if
a discussion of the species’ current sensitive plant species in mountain the Laguna Mountains skipper has been
status and distribution (see Status and meadows (Cleveland National Forest extirpated from Laguna Mountain,
Distribution section of the proposed 1991, pp. 1–36). The habitat reintroduction will likely to be
rule). We did not include Dyche Valley management guide, while providing necessary to promote the conservation
because we had no hostplant or species more specific conservation measures of the subspecies, and unoccupied
occurrence information for this area, than the land management plan, is still habitat would still be considered
and therefore could not conclude it was specific to ‘‘discrete [montane] meadow essential. Current occupancy is not
essential to the species’ conservation. communities’’ and the four sensitive required for the designation of critical
(12) Comment: Two peer reviewers plant species. While these mapped habitat if the area is essential to the
stated Laguna Mountains skippers use community areas (Cleveland National conservation of the species.
more diverse nectar sources than Forest 1991, pp. 5–7) do include some (17) Comment: One commenter stated
indicated in the proposed critical areas identified as essential for Laguna that if critical habitat is designated, a
habitat rule. One peer reviewer Mountains skipper (e.g. southern greater conservation value could be
suggested the list of nectar sources Mendenhall Valley; see unit achieved by further limiting critical
should include Taraxacum vulgare descriptions below), many smaller forest habitat designation to a ‘‘more refined
(common dandelion) and the hostplant openings and adjacent open-canopy boundary’’ within proposed critical
Horkelia clevelandii. woodland areas are not included, such habitat. Specific recommended refined
Our Response: We appreciate this as Observatory Campground and Trail. boundaries, primarily following the U.S.
information, and will consider it in Also, habitat management guides and Forest Service’s habitat model for
future management recommendations. plans do not mandate conservation Laguna Mountains skipper, were
We believe the PCEs are sufficiently measures, and therefore do not provide delineated on maps provided with these
broad with regard to use of diverse adequate protection of essential habitat. comments.
nectar sources, and already include the For example, the 1993 scheduled Our Response: We re-evaluated the
hostplant H. clevelandii, therefore we management action for Delphinium methodology used to delineate the
did not revise our PCEs. hesparium (Cleveland National Forest proposed critical habitat unit
(13) Comment: One peer reviewer 1991 p.17), a grazing exclosure in the boundaries and have revised the final
expressed concern that population size Garnet Kiosk area (southern Laguna critical habitat unit boundaries based on
estimates and comparisons given in the Meadow area, also identified as information provided by this
proposed critical habitat rule were not essential to the Laguna Mountains commenter. In total, these revisions
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reliable. He expressed particular skipper), has not yet been implemented. have resulted in the removal of
concern that due to disease, parasitism, Existing Forest Service measures and approximately 420 ac (169 ha) from
and predation, these kind of estimates management plans do not provide final critical habitat (see Summary of
extrapolated from immature life stages specific or sufficient enough Changes from the Proposed Rule section
greatly overestimate population size. conservation measures for Laguna below for a detailed discussion).

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(18) Comment: One commenter stated connected, these subunits are natural communities are minimized to
that designation of critical habitat will ecologically connected to occupied the maximum extent practicable during
‘‘further hinder or destroy all economic habitat (Laguna Meadow) by relatively fire fighting activities. As stated below
activity’’ and ‘‘terminate or curtail undisturbed forested habitat that allows (under Special Management
recreational use’’ on Forest Service land for species movement between Laguna Considerations or Protection), fire
on Laguna Mountain. Meadow and Subunits 1B and 1C. We management activities, such as tree and
Our Response: Although designation have clarified this in the Critical Habitat brush removal for fuel modification,
of critical habitat may increase the Designation section of this final rule. should not adversely modify habitat if
number of Forest Service consultations We also stated in the proposed rule that carefully managed to minimize or avoid
on projects in essential habitat, and we believe that given the species’ small destruction of hostplants.
should increase conservation measures population size and very limited range, (23) Comment: One commenter
for the species at a few key locations, reintroduction may be necessary for objected to our assertion that critical
the designation should not significantly long-term persistence of the species. habitat provides little benefit above that
increase restrictions on economic Since critical habitat identifies areas provided by other provisions of the Act.
activities or restrict recreational essential to species conservation, we Our Response: As discussed in the
activities relative to current levels. As believe inclusion of these unoccupied sections ‘‘Designation of Critical Habitat
stated below (under Special areas in final critical habitat is justified. Provides Little Additional Protection to
Management Considerations or (20) Comment: One commenter stated Species,’’ ‘‘Role of Critical Habitat in
Protection), economic activities, such as the designation of independent, non- Actual Practice of Administering and
relatively low density grazing, should connected subunits within each Implementing the Act,’’ and
not adversely modify habitat if carefully mountain contradicts the statement in ‘‘Procedural and Resource Difficulties in
managed to minimize or avoid the proposed rule that connectivity Designating Critical Habitat’’ and other
destruction of hostplants. The total areas among meadows are required for sections of this and other critical habitat
estimated future costs (loss of economic species’ survival. The commenter stated designations, we believe that, in most
gain due to critical habitat designation) that Laguna Mountains skippers are cases, other conservation mechanisms
in the Draft Economic Analysis over the ‘‘highly mobile’’ and known to fly provide greater incentives and
next 20 years to grazing on Laguna through forested environments, and conservation benefits than does the
Mountain range from $42,000 to $76,000 failure to designate critical habitat designation of critical habitat. These
(Industrial Economics, Incorporated, connecting subunits could reduce the other mechanisms include the section 4
p. ES–10). Total estimated future cost likelihood of species survival. recovery planning process, section 6
for recreational activities is $3,305,000 Our Response: See response to funding to the States, section 7
(Industrial Economics, Incorporated, p. Comment 3 above. consultations, the section 9 protective
ES–10). Total future costs to grazing and (21) Comment: One commenter stated prohibitions of unauthorized take, the
recreation on Laguna Mountain average because hostplant mapping and section 10 incidental take permit
from $167,350 to $169,050 per year, a knowledge of habitat use by Laguna process, and cooperative programs with
relatively low estimate. The Draft Mountains skippers is incomplete, all private and public landholders and
Economic Analysis states, ‘‘While areas within hostplant elevation limits tribal nations.
changes in [livestock production and on Laguna Mountain should be
Comments Related to the Draft
recreational camping] could affect the designated as critical habitat.
Our Response: We acknowledge that Economic Analysis (DEA)
regional economy, the magnitude of the
expected change is insignificant (i.e., hostplant mapping and knowledge of (24) Comment: One comment stated
less than one percent for grazing and habitat use by Laguna Mountains that the DEA fails to evaluate benefits
less than 0.01 percent for camping) in skippers is incomplete; however, we are associated with protecting critical
light of the total size of the regional required to use the best available habitat for the Laguna Mountains
economy.’’ (Industrial Economics, information to designate habitat that skipper. The same commenter noted
Incorporated, p. ES–13). Future cost contains the primary constituent that cost savings associated with
value estimates will also be reduced by elements required by the species and is protecting the hydrological function of
the reduction in area designated as essential to the conservation of the meadows and conducting fire abatement
critical habitat relative to what was species. In the absence of more around proposed new utility structures
proposed (see Summary of Changes complete hostplant mapping throughout critical habitat should be
from Proposed Rule below). information, we limited the designation included in the DEA.
(19) Comment: One commenter stated to those areas that the available Our Response: Section 4(b)(2) of the
that subunits 1B and 1C on Laguna information indicates contain the PCEs Act requires the Secretary to designate
Mountain should not be designated as and are essential to the conservation of critical habitat based on the best
critical habitat because: (1) Subunit 1A the species. scientific data available after taking into
provides substantial habitat already; (2) (22) Comment: One commenter consideration the economic impact,
subunits 1B and 1C are not contiguous wanted to make sure that critical habitat impact on national security, and any
with Laguna Meadow as stated in the designation would not affect the fire other relevant impact, of specifying any
proposed critical habitat rule; and (3) safety of human and natural particular area as critical habitat. The
designation based on potential communities on Laguna Mountain. Service’s approach for estimating
reintroduction is not justified. Our Response: The designation of economic impacts includes both
Our Response: As stated in the critical habitat will not affect fire safety economic efficiency and distributional
proposed rule, Subunits 1B and 1C were of human communities on Laguna effects. The measurement of economic
proposed as critical habitat because they Mountain. Public safety is always the efficiency is based on the concept of
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are connected to occupied habitat, were first priority in the event of a fire. Also, opportunity costs, which reflect the
historically occupied, and contain the local Service field office has several value of goods and services foregone in
physical and biological features biologists trained as resource advisors order to comply with the effects of the
essential to the conservation of the who work cooperatively with designation (e.g., lost economic
species. To clarify, while not physically firefighters to ensure that impacts to opportunity associated with restrictions

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on land use). Where data are available, (New Mexico Cattle Growers designation to Cleveland National
the economic analyses do attempt to Association v. U.S. Fish and Wildlife Forest’s Laguna Mountains skipper
measure the net economic impact. Service (248 F.3d 1277)). modeled habitat (Winter 2000, pg. 1)
However, no data was found that would This analysis identifies those within proposed critical habitat units.
allow for the measurement of such an potential activities believed to be most Methodology in Winter (2000, pg. 1)
impact, nor was such information likely to threaten the Laguna Mountains was described as follows:
submitted during the public comment skipper and its habitat and, where
‘‘Elevation between 4000 and 6100 feet.
period. possible, quantifies the economic Vegetation type is grassland that is within
While the Secretary must consider impact to avoid, mitigate, or compensate 100 meters of contact with oak woodland/
economic and other relevant impacts as for such threats within the boundaries conifer forest vegetation type and conifer/
part of the final decision-making of the critical habitat designation. woodland type that is within 100 meters of
process under section 4(b)(2) of the Act, Where critical habitat is being proposed contact with grassland. As of 3/6 [2000], heb
the Act explicitly states that it is the after a species is listed, some future (herbaceous in veg cover was limited by 3
government’s policy to conserve all impacts may be unavoidable, regardless soil types, crouch, reiff, loamy alluvial).
threatened and endangered species and of the final designation and exclusions Additional work included incorporating
the ecosystems upon which they under section 4(b)(2) of the Act. entire meadows in addition to the edges
depend. Thus, we believe that explicit However, due to the difficulty in based on the 100m contact above, and
consideration of broader social values making a credible distinction between excluding the most southern (Corta Madera)
portions of screen due to vegetation surveys
for the subspecies and its habitat, listing and critical habitat effects within
indicating no presence of Horkelia [on]
beyond the more traditionally defined critical habitat boundaries, this analysis private lands.’’
economic impacts, is not necessary as considers all future conservation-related
Congress has already clarified the social impacts to be co-extensive with the This qualitative method of delineating
importance. designation. meadows in many areas on Laguna
We note, as a practical matter, it is (26) Comment: One comment stated Mountain is similar to the information
difficult to develop credible estimates of the costs for fuel management projects we used in our critical habitat proposal
such values, as they are not readily are underestimated because they do not (see Criteria Used to Identify Critical
observed through typical market include increased costs associated with Habitat section below). Terrell (2006a,
transactions and can only be inferred additional planning and analysis as well pp. 5, 6) provided a map using Winter’s
through advanced, tailor-made studies as higher treatment costs that might be (2000) methods to map habitat within
that are time consuming and expensive associated with avoiding certain areas proposed critical habitat units, and
to conduct. We currently lack both the within proposed critical habitat areas. recommended limiting critical habitat
budget and time needed to conduct such Our Response: We revised the DEA to designation to those areas. We
research before meeting our court- include the costs associated with considered this information and agreed
ordered final rule deadline. In summary, additional planning, analysis, and that using the modeled habitat
we believe that society places treatment required to ensure that constituted the best available scientific
significant value on conserving any and Laguna Mountains skipper habitat is information, thus justifying some unit
all threatened and endangered species avoided. Cleveland National Forest staff boundary adjustments; however
and the habitats upon which they estimate these costs to be approximately additional data on habitat type use (e.g.,
depend and thus needs only to consider $2,000 per fuels management project open oak woodland at Pine Hill
whether the economic impacts (both and three fuels management projects per (Osborne 2002)) and host plant
positive and negative) are significant year in proposed critical habitat areas, distribution since 2000 justify including
enough to merit exclusion of any or approximately $6,000 per year. some areas not mapped by Winter
particular area without causing the (27) Comment: One comment stated (2000, pg.1).
species to go extinct. the administrative costs associated with
(25) Comment: One comment stated section 7 consultations for the We overlaid the Cleveland National
that the DEA overestimates costs Cleveland National Forest are ‘‘very Forest’s Laguna Mountains skipper
associated with conserving the Laguna much underestimated.’’ modeled habitat (Winter 2000, pg. 1)
Mountains skipper, because it includes Our Response: Based on information boundaries on the proposed critical
economic impacts attributable to listing provided by the Cleveland National habitat boundaries for Unit 1 (Laguna
under the ESA. The comment further Forest, we revised the DEA’s estimate of Mountain) and removed those areas
stated that the costs associated with future administrative costs associated from proposed critical habitat which fell
listing of a species are separate from with section 7 consultations. As shown outside of the modeled habitat and for
critical habitat designation and therefore in Exhibit 8–8 of the DEA, which we did not have main hostplant
should not be included in the economic administrative costs are forecasted to be (Horkelia clevelandii) occurrence data
impacts analysis for critical habitat $1.4 million (undiscounted dollars) over (see the Criteria Used To Identify
designation. the next 20 years. In present value Critical Habitat section below for a
Our Response: The economic analysis terms, costs are $1.1 million, assuming detailed discussion). This re-evaluation
is intended to assist the Secretary in a three percent discount rate; and resulted in the removal of
determining whether the benefits of $828,000, assuming a seven percent approximately 420 ac (169 ha) from Unit
excluding particular areas from the discount rate. 1 (Laguna Mountain). The areas
designation outweigh the biological removed were primarily located in the
benefits of including those areas in the Summary of Changes From Proposed northeastern portion of Subunit 1B, the
designation. Also, this information Rule southwestern portion of Subunit 1C,
allows us to comply with direction from Based on information received from and the southeastern portion of Subunit
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the U.S. 10th Circuit Court of Appeals Terrell (2006a, p. 3 and 4) during the 1A, as well as open woodland north of
that ‘‘co-extensive’’ effects should be public comment periods, we re- Boiling Springs Ravine in Subunit 1A.
included in the economic analysis to evaluated the proposed critical habitat This re-evaluation of proposed critical
inform decision-makers regarding which boundaries. Terrell (2006a, p. 3 and 4) habitat boundaries did not result in any
areas to designate as critical habitat suggested we limit critical habitat changes to lands designated in Unit 2.

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Critical Habitat if the essential features thereon may is often dynamic, and species may move
Critical habitat is defined in section 3 require special management from one area to another over time.
of the Act as—(i) the specific areas considerations or protection. Thus, we Furthermore, we recognize that
within the geographical area occupied do not include areas where existing designation of critical habitat may not
by a species, at the time it is listed in management is sufficient to conserve include all of the habitat areas that may
accordance with the Act, on which are the species. (As discussed below, such eventually be determined to be
found those physical or biological areas may also be excluded from critical necessary for the recovery of the
features (I) essential to the conservation habitat pursuant to section 4(b)(2)). species. For these reasons, critical
of the species and (II) that may require Areas outside of the geographic area habitat designations do not signal that
special management considerations or occupied by the species at the time of habitat outside the designation is
listing may only be included in critical unimportant or may not be required for
protection; and (ii) specific areas
habitat if they are essential for the recovery.
outside the geographical area occupied
conservation of the species.
by a species at the time it is listed, upon Areas that support populations, but
Accordingly, when the best available
a determination that such areas are are outside the critical habitat
scientific data do not demonstrate that
essential for the conservation of the designation, will continue to be subject
the conservation needs of the species
species. Conservation, as defined under to conservation actions implemented
require additional areas, we will not
section 3 of the Act means to use and under section 7(a)(1) of the Act and to
designate critical habitat in areas
the use of all methods and procedures the regulatory protections afforded by
outside the geographical area occupied
which are necessary to bring any the section 7(a)(2) jeopardy standard, as
by the species at the time of listing. An
endangered species or threatened area currently occupied by the species determined on the basis of the best
species to the point at which the but not known to be occupied at the available information at the time of the
measures provided pursuant to the Act time of listing will likely, but not action. Federally funded or permitted
are no longer necessary. Such methods always, be essential to the conservation projects affecting listed species outside
and procedures include, but are not of the species and, therefore, typically their designated critical habitat areas
limited to, all activities associated with included in the critical habitat may still result in jeopardy findings in
scientific resources management such as designation. some cases. Similarly, critical habitat
research, census, law enforcement, The Service’s Policy on Information designations made on the basis of the
habitat acquisition and maintenance, Standards Under the Endangered best available information at the time of
propagation, live trapping, and Species Act, published in the Federal
transplantation, and, in the designation will not control the
Register on July 1, 1994 (59 FR 34271), direction and substance of future
extraordinary case where population and Section 515 of the Treasury and
pressures within a given ecosystem recovery plans, habitat conservation
General Government Appropriations plans, or other species conservation
cannot be otherwise relieved, may Act for Fiscal Year 2001 (Pub. L. 106–
include regulated taking. planning efforts if new information
554; H.R. 5658) and the associated available to these planning efforts calls
Critical habitat receives protection Information Quality Guidelines issued
under section 7 of the Act through the for a different outcome.
by the Service, provide criteria,
prohibition against destruction or establish procedures, and provide Primary Constituent Elements
adverse modification of critical habitat guidance to ensure that decisions made
with regard to actions carried out, by the Service represent the best In accordance with section 3(5)(A)(i)
funded, or authorized by a Federal scientific data available. They require of the Act and regulations at 50 CFR
agency. Section 7 requires consultation Service biologists to the extent 424.12, in determining which areas to
on Federal actions that are likely to consistent with the Act and with the use designate as critical habitat within areas
result in the destruction or adverse of the best scientific data available, to occupied by the species at the time of
modification of critical habitat. The use primary and original sources of listing, we consider those physical and
designation of critical habitat does not information as the basis for biological features (PCEs) that are
affect land ownership or establish a recommendations to designate critical essential to the conservation of the
refuge, wilderness, reserve, preserve, or habitat. When determining which areas species and that may require special
other conservation area. Such are critical habitat, a primary source of management considerations or
designation does not allow government information is generally the listing protection. These include, but are not
or public access to private lands. package for the species. Additional limited to space for individual and
Section 7 is a purely protective measure information sources include the population growth and for normal
and does not require implementation of recovery plan for the species, articles in behavior; food, water, air, light,
restoration, recovery, or enhancement peer-reviewed journals, conservation minerals, or other nutritional or
measures. plans developed by States and counties, physiological requirements; cover or
To be included in a critical habitat scientific status surveys and studies, shelter; sites for breeding, reproduction,
designation, the habitat within the area biological assessments, or other and rearing (or development) of
occupied by the species must first have unpublished materials and expert offspring; and habitats that are protected
features that are essential to the opinion or personal knowledge. All from disturbance or are representative of
conservation of the species. Critical information is used in accordance with the historical geographical and
habitat designations identify, to the the provisions of Section 515 of the ecological distributions of a species.
extent known using the best scientific Treasury and General Government
data available, habitat areas that provide Appropriations Act for Fiscal Year 2001 The specific primary constituent
essential life cycle needs of the species (Pub. L. 106–554; H.R. 5658) and the elements required for the Laguna
jlentini on PROD1PC65 with RULES2

(i.e., areas on which are found the associated Information Quality Mountains skipper are derived from the
primary constituent elements, as Guidelines issued by the Service. biological needs of the Laguna
defined at 50 CFR 424.12(b)). Section 4 of the Act requires that we Mountains skipper as described in the
Habitat occupied at the time of listing designate critical habitat on the basis of Background section of the proposed rule
may be included in critical habitat only the best scientific data available. Habitat (70 FR 73699).

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Food, Water, or Other Nutritional or the use of connectivity areas for adult not all critical habitat will uniformly
Physiological Requirements movement between breeding sites, contain all the PCEs.
Laguna Mountains skippers require maintenance of populations of
Criteria Used To Identify Critical
sunlight provided in the open meadows, hostplants and adult nectar sources is
Habitat
open woodlands, or other forest important, even if they are not likely to
be used for breeding. As required by section 4(b)(1)(A) of
openings. Butterflies are exothermic the Act, we use the best scientific data
(i.e., they remain at the same Historical and Geographic Distribution available in determining areas that
temperature as their environment) and, of the Species contain the features that are essential to
like most insects, body temperature is of the conservation of the Laguna
overriding importance in limiting flight The occupied areas designated as
critical habitat are representative of the Mountains skipper. We have also
(Chapman 1982, p. 217–272). Butterfly reviewed available information that
flight activity is limited by light historical and geographical distribution
of the species. Areas included in the pertains to the habitat requirements of
intensity. Therefore, they require areas this species. Information sources
for basking in the sun in order to raise final designation that are not known to
be occupied were all historically include data from field surveys for
their body temperature for flight Horkelia clevelandii, regional
(Chapman 1982, p. 217–272). occupied and will restore a portion of
the historical geographic distribution of Geographic Information System (GIS)
Additionally, surface moisture such as vegetation and species coverages, data
puddles and seeps (not flowing water) the Laguna Mountains skipper.
Connectivity is required for compiled in the California Natural
provide water and minerals for adults. Diversity Database (CNDDB), and survey
Adult Laguna Mountains skippers need recolonization of habitat to occur (e.g.,
after extirpation by fire) and for genetic data for the Laguna Mountains skipper
annual or perennial nectar sources from reports submitted by biologists
including meadow and woodland- diversity to be maintained.
holding section 10(a)(1)(A) recovery
associated herbaceous annual Primary Constituents for the Laguna permits. We identified critical habitat
wildflowers, and perennial herbs (e.g. Mountains Skipper based on the assessment of those
Horkelia clevelandii, Lasthenia spp. physical and biological components
Pursuant to our regulations, we are
(goldfields), Pentachaeta aurea (golden- identified above, the known and
required to identify the known physical
rayed pentachaeta), Ranunculus spp. historical occurrences of Laguna
and biological features (PCEs) essential
(buttercups), and Sidalcea spp. Mountains skipper, and available
to the conservation of the Laguna
(checkerbloom)). information on the distribution of H.
Mountains skipper. All areas designated
Sites for Breeding and Reproduction as critical habitat for the Laguna clevelandii. We designated no areas
Mountains skipper are within the outside the individual mountains
Laguna Mountains skippers require presently occupied by the species.
Horkelia clevelandii to lay eggs on and species’ historical geographic range and
To delineate critical habitat, we
for the caterpillars to eat and construct contain sufficient PCEs to support at
identified meadow complexes
their pupal shelters. The species has least one life history function.
(meadows and forest openings
also been documented on Potentilla Based on our current knowledge of connected by open forest canopy) on
glandulosa (Pratt 1999, p. 10; Osborne the life history, biology, and ecology of Palomar and Laguna Mountains
2005). However, P. glandulosa may only the species and the requirements of the occupied by the Laguna Mountains
be used as a hostplant for population habitat to sustain the essential life skipper at the time of listing and known
survival in special circumstances (e.g., history functions of the species, we have to be currently occupied. The species
dry environmental conditions) where it determined that the Laguna Mountains was known to occupy only one meadow
occurs near H. clevelandii. Hostplant skipper’s PCEs are: complex (Laguna Meadow) on Laguna
patches must be dense enough to (1) The hostplants, Horkelia Mountain at the time of listing, but we
support breeding (provide multiple and clevelandii or Potentilla glandulosa, in also identified two meadow complexes
diverse sites for depositing eggs), meadows or forest openings needed for on Laguna Mountain that contain
although the exact host-plant patch size reproduction. habitat with features essential to the
and density required for breeding is not (2) Nectar sources suitable for feeding conservation of the species. These
known. A ‘‘patch’’ of hostplants may by adult Laguna Mountains skippers, meadow complexes were not known to
consist of one to several clumps of H. including Lasthenia spp., Pentachaeta be occupied at the time of listing,
clevelandii or P. glandulosa growing aurea, Ranunculus spp., and Sidalcea however, they have not been extensively
together, as well as numerous spp. found in woodlands or meadows. surveyed, and Laguna Mountain as a
individual plants that are growing in (3) Wet soil or standing water whole was historically considered to be
close proximity to each other. associated with features such as seeps, occupied by the skipper. These areas are
springs, or creeks where water and important for expansion and
Space for Individual and Population minerals are obtained during the adult enhancement of populations in Laguna
Growth, and for Normal Behavior flight season. Meadow and are therefore considered
The species’ current geographic range This designation is designed for the essential to the conservation of the
is fragmented and small, population conservation of areas supporting PCEs species.
densities are relatively low, and the necessary to support the life history Using infrared satellite imagery, we
quality of most breeding habitat has functions which were the basis for the visually outlined meadows and forest
been compromised to some degree by proposal. In general, critical habitat openings that contained species or
grazing, recreation impacts, or alien units are designated based on sufficient hostplant occurrence data. Maps were
plants. Therefore, all landscape PCEs being present to support one or produced by overlaying a 328 square ft
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connectivity areas among occupied more of the species’ life history (100 square m) grid on the initial hand-
meadows and forest openings that adult functions. In this instance, all units drawn polygons and selecting those grid
Laguna Mountains skippers can move contain all PCEs and support multiple cells that fell within the hand drawn
through are required for the life processes. Because not all life polygons. Specifically, on Palomar
conservation of the species. To facilitate history functions require all the PCEs, Mountain (Unit 2) we defined subunits

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based on the selected grid cells because protection. Threats to those essential Changes in surface and groundwater
meadows were more clearly defined and features that define critical habitat availability due to disturbance by cattle
species occupancy and distribution (PCEs) for the Laguna Mountains and humans can also result in meadow
information was more clearly defined. skipper include the direct and indirect habitat conversion (PCE 1).
On Laguna Mountain (Unit 1), where impacts of human development and The provisions within two Forest
meadows were not as clearly defined recreation, surface and groundwater Service management documents
and species distribution information management practices, and grazing promote the conservation of the Laguna
and occupancy was less certain, we then intensity. Mountains skipper. The Land
overlaid the Cleveland National Forest’s Areas identified as critical habitat are Management Plan provides long-term
Laguna Mountains skipper modeled composed of 38 percent private land management direction for National
habitat boundaries and removed areas holdings, where habitat is subject to Forest Service lands (Terrell 2006a, pg.
outside of the modeled habitat for rural development and overgrazing, 1; and b, pp. 1–2). In addition, the
which we did not have occurrence data potential stream and groundwater Cleveland National Forest has a habitat
for the species or its main hostplant diversions, and recreational activities. management guide for four sensitive
(Horkelia clevelandii). Specifically, we State and Federal landholdings (6 and plant species in mountain meadows
removed: (1) All grid cells more than 56 percent, respectively) are also subject habitat (Cleveland National Forest 1991,
328 ft (100 m) distant from species to grazing and recreational activities. pp.1–36). While the USFS has
occurrence locations, hostplant While designation of critical habitat completed some conservation actions
occurrence locations, or Forest Service does not impose any management for the species, the avoidance and
modeled habitat; (2) remaining grids requirements, particularly on State or mitigation standards in both
cells not connected to the three subunits private land, the following are measures management plans are general and do
of Unit 1; and (3) all grid cells with over that could be undertaken to benefit the not specify what actions are needed, or
97 percent of their area more than 328 species. what is considered essential habitat.
ft (100 m) distant from species Grazing can cause direct mortality of Therefore, habitat essential to the
occurrence locations, hostplant larvae and eggs by trampling and Laguna Mountains skipper where
occurrence locations habitat. consumption. The density of cattle special management actions may be
When determining critical habitat grazed in meadow habitat should be needed to minimize impacts resulting
boundaries, we made every effort to monitored and managed as well as from recreation, grazing, and exotic
avoid including within the boundaries levels of habitat degradation resulting plant invasion needs to be identified.
of the map contained within this final from existing levels of grazing. Areas designated as critical habitat
rule developed areas such as buildings, Environmental conditions should also contain physical and biological features
paved areas, and other structures that be considered when determining essential for the conservation of the
lack PCEs for the Laguna Mountains appropriate cattle density in meadow Laguna Mountains skipper that may
skipper. The scale of the maps prepared habitat occupied by the Laguna require some level of management or
under the parameters for publication Mountains skipper. While cattle do not protection to address current and future
within the Code of Federal Regulations normally eat hostplants while larvae are threats to the Laguna Mountains
may not reflect the exclusion of such developing, they have been observed skipper. Subunits 2A, 2B, and 2C may
developed areas. Any such structures grazing on hostplants during drought require special management due to all
and the land under them inadvertently years on Laguna Mountain (Pratt 2006, threats described above. All subunits in
left inside critical habitat boundaries p. 4). Adaptive management may be Unit 1 may require special management
shown on the maps of this final rule needed to adjust cattle grazing intensity, due to all threats described above except
have been excluded by text in the final and protection measures may include diverting stream and groundwater.
rule and are not designated as critical exclosures to prevent grazing of Subunit 2D may require management
habitat. Therefore, Federal actions hostplants. Monitoring of potential primarily of recreation impacts. Fire
limited to these areas would not trigger changes in hydrology caused by stream management activities, such as logging,
section 7 consultation, unless they may and groundwater diversions should be fuel modification, or relatively low
affect the species or primary constituent undertaken and any necessary density grazing, should not adversely
elements in adjacent critical habitat. management to prevent habitat modify habitat if carefully and
We are designating critical habitat on conversion from wet to dry meadows, or adaptively managed to minimize or
lands that we have determined were open woody canopy to closed. avoid destruction of hostplants.
occupied at the time of listing and On Palomar Mountain, commercial
drinking water projects and stream Critical Habitat Designation
contain sufficient primary constituent
elements to support life history alterations on private lands are We are designating 2 units, further
functions essential for the conservation currently diverting stream and divided into 7 subunits, as critical
of the species. We are also designating groundwater to an unknown extent. habitat for the Laguna Mountains
lands that were not known to be Drying of meadows results in vegetation skipper. Unit 1, Laguna Mountain,
occupied at the time of listing but have changes (for a general discussion see consists of subunits 1A, 1B, and 1C.
been determined to be essential for the Naumburg et al. 2005) that could Unit 2, Palomar Mountain, consists of
conservation of the Laguna Mountains eliminate primary constituent elements subunits 2A, 2B, 2C, and 2D. Lands
skipper. within Laguna Mountains skipper being designated are under Federal
habitat (e.g. hostplants and surface (3,516 ac (1,423 ha)), private (2,361 ac
Special Management Considerations or moisture, PCEs 1 and 3). Recreational (954 ha)), and State (381 ac (154 ha))
Protection activities such as camping and ownership. Table 1 outlines the acreage
When designating critical habitat, we horseback riding can cause direct and landownership of the areas
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assess whether the areas determined to mortality of Laguna Mountains skipper designated as critical habitat for the
be occupied at the time of listing larvae by trampling, and may increase Laguna Mountains skipper. The critical
support the primary constituent encroachment of exotic vegetation habitat areas described below constitute
elements that may require special affecting the availability of hostplants our best assessment at this time of areas
management considerations or (PCE 1) and nectar sources (PCE 2). determined to be occupied at the time

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of listing, containing the primary the conservation of the Laguna concentrated near the edges of larger
constituent elements essential for the Mountains skipper. All three PCEs are meadows, streams, and in forest
conservation of the species that may generally distributed throughout all the openings; wet areas are the most
require special management subunits: Nectar sources are the most localized (PCE 3), found in association
considerations or protection, and those evenly distributed PCE (PCE 2); host with natural seeps, cattle troughs,
additional areas found to be essential to plants (PCE 1) are generally streams, and ponds or lakes.

TABLE 1.—AREA, IN ACRES (AC) AND HECTARES (HA), AND LANDOWNERSHIP OF THE AREAS DESIGNATED AS CRITICAL
HABITAT FOR THE LAGUNA MOUNTAINS SKIPPER
Total area ac
Critical habitat unit/subunit Federal 1 ac (ha) Private ac (ha) State 2 ac (ha)
(ha)

Unit 1—Laguna Mountain

Subunit 1A (Laguna Meadow) ......................................................... 2,610 (1,056) 2,531 (1,024) 79 (32) 0


Subunit 1B (Filaree Flat) ................................................................. 233 (94) 233 (94) 0 0
Subunit 1C (Agua Dulce Campground and Horse Meadow) .......... 500 (202) 374 (151) 126 (51) 0

Unit 1 Total ............................................................................... 3,343 (1,352) 3,138 (1,269) 205 (83) 0

Unit 2—Palomar Mountain

Subunit 2A (Mendenhall Valley and Observatory Campground) .... 1,092 (442) 231 (94) 861 (348) 0
Subunit 2B (Upper French Valley, Observatory Trail, and Palomar
Observatory Meadows) ................................................................ 998 (404) 93 (38) 905 (366) 0
Subunit 2C (Upper Doane Valley and Girl Scout Camp) ................ 547 (221) 40 (16) 316 (128) 191 (77)
Subunit 2D (Lower French Valley and Lower Doane Valley) ......... 262 (106) 14 (6) 58 (23) 190 (77)

Unit 2 Total ............................................................................... 2,899 (1,173) 378 (154) 2,140 (865) 381 (154)

Total of Units 1 and 2 ............................................................... 6,242 (2,525) 3,516 (1,423) 2,345 (948) 381 (154)
1 Federal lands = U.S. Forest Service.
2 State Lands = California State Parks.

Unit 1: Laguna Mountain be occupied at the time of listing. This This subunit contains 233 ac (94 ha) of
Unit 1 encompasses approximately subunit contains habitat features Forest Service managed lands (Table 1).
3,343 ac (1,352 ha) (Table 1), and is essential to the conservation of the Unit 1C: Agua Dulce Campground and
approximately centered on Laguna species and is the site where the species Horse Meadow
Mountain peak located in south-central was first described (i.e., northern
San Diego County, east of the Laguna Meadow, near Little Laguna Subunit 1C (500 ac (202 ha)) is not
community of Alpine, California. This Lake). Until 2000, adult skippers were currently known to be occupied and
unit is divided into three subunits consistently found in this area. The was not known to be occupied at the
which each contain all of the primary Cleveland National Forest lands in this time of listing. This subunit is essential
constituent elements. This unit is unit are subject to grazing and because: (1) It contains habitat features
crucial to the species primarily because recreational activities, and special essential to the conservation of any
the species was first described from this management considerations such as populations occupying Subunit 1A; (2)
unit and represents the southernmost grazing density adjustments or provides for population expansion and
portion of the species’’ range. exclosures to protect hostplants may be enhancement; (3) minimizes habitat
Maintaining two widely separate units required to maintain the PCEs. This fragmentation; and (4) is representative
(i.e., Laguna and Palomar Mountains), subunit contains 2,531 (1,024 ha) of of the historical geographical and
and multiple subunits limits the Forest Service managed lands and 79 ac ecological distribution of the species.
potential for a catastrophic event to (32 ha) of privately owned land (Table This subunit contains 374 ac (151 ha) of
extirpate all remaining populations. Forest Service managed lands and 126
1).
Because the number of known occupied ac (51 ha) of privately owned land
sites and low population densities are Unit 1B: Filaree Flat (Table 1).
not sufficient to overcome the threat of Unit 2: Palomar Mountain
extirpation, connectivity and expansion Subunit 1B (233 ac (94 ha)) is not
into unoccupied meadow complexes is currently known to be occupied, and Unit 2 encompasses approximately
necessary for the conservation of the was not known to be occupied at the 2,899 ac (1,173 ha) (Table 1), and is
Laguna Mountains skipper. time of listing, but was historically approximately centered on Palomar
Connectivity is important for occupied. This subunit is essential Mountain peak located in north-central
recolonization of habitat to occur (e.g., because: (1) It contains habitat features San Diego County near the border of
after extirpation by fire) and genetic essential to the conservation of any Riverside County. Unit 2 consists of four
diversity to be maintained among local populations occupying Subunit 1A (2) subunits which each contain all of the
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populations. provides for population expansion and primary constituent elements. Unit 2
enhancement; (3) minimizes habitat includes the most densely populated
Unit 1A: Laguna Meadow fragmentation; and (4) is representative area in the species’’ range and
Unit 1A (2,610 ac (1,056 ha)) is of the historical geographical and encompasses the northernmost portion
currently occupied and was known to ecological distribution of the species. of the range. Maintaining two widely

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separate units (i.e., Laguna and Palomar fragmentation. This subunit contains 40 the agency in eliminating conflicts that
Mountains) and multiple subunits limits ac (16 ha) of Forest Service managed may be caused by the proposed action.
the potential for a catastrophic event to lands, 316 ac (128 ha) of privately The Service may conduct either
extirpate all remaining populations. owned land, and 191 ac (77 ha) of State- informal or formal conferences. Informal
owned land (i.e., California State Parks) conferences are typically used if the
Unit 2A: Mendenhall Valley and
(Table 1). proposed action is not likely to have any
Observatory Campground
adverse effects to the proposed species
Subunit 2A (1,092 ac (442 ha)) is Unit 2D: Lower French Valley and Lower or proposed critical habitat. Formal
known to be currently occupied and Doane Valley conferences are typically used when the
was occupied at the time of listing. Subunit 2D (262 ac (106 ha)) is known Federal agency or the Service believes
Subunit 2A supports the largest known to be currently occupied and was the proposed action is likely to cause
population of Laguna Mountains occupied at the time of listing. Reports adverse effects to proposed species or
skipper and represents the best of multiple Laguna Mountains skipper critical habitat, inclusive of those that
opportunity for the conservation of this observations in this subunit in 2005 may cause jeopardy or adverse
species. This unit is composed of a large (Walker 2006) indicate relatively high modification.
amount of private land holdings with current densities in these valleys, and The results of an informal conference
habitat potentially subject to future rural has confirmed the importance of this are typically transmitted in a conference
development and other land use subunit for species conservation. Lands report; while the results of a formal
changes, overgrazing, stream diversion, in this subunit are subject to grazing conference are typically transmitted in a
and private recreational use. This activities, and special management conference opinion. Conference
subunit is the only meadow complex considerations such as hostplant opinions on proposed critical habitat are
(i.e., Mendenhall Valley and associated distribution monitoring, exclosure typically prepared according to 50 CFR
forest openings) where multiple adults maintenance, and grazing density 402.14, as if the proposed critical
have been consistently detected since adjustments may be required to habitat were designated. We may adopt
the time of listing. Lands in this subunit maintain the PCEs. This subunit the conference opinion as the biological
are subject to grazing activities, and contains 14 (6 ha) of Federal land (i.e., opinion when the critical habitat is
special management considerations Forest Service), 58 ac (23 ha) of designated; if no substantial new
such as hostplant distribution privately owned land, and 190 ac (77 information or changes in the action
monitoring, exclosure maintenance, and ha) of State-owned land (i.e., California alter the content of the opinion (see 50
grazing density adjustments may be State Parks) (Table 1). CFR 402.10(d)). As noted above, any
required to maintain the PCEs. This conservation recommendations in a
subunit contains 231 ac (94 ha) of Forest Effects of Critical Habitat Designation conference report or opinion are strictly
Service managed lands and 861 ac (348 Section 7 Consultation advisory.
ha) of privately owned land (Table 1). Once a species is listed or critical
Section 7(a) of the Act requires habitat is designated, section 7(a)(2) of
Unit 2B: Upper French Valley, Federal agencies, including the Service, the Act requires Federal agencies to
Observatory Trail, and Palomar to evaluate their actions with respect to ensure that activities they authorize,
Observatory Meadows any species that is proposed or listed as fund, or carry out are not likely to
Subunit 2B (998 ac (404 ha)) is known endangered or threatened and with jeopardize the continued existence of
to be currently occupied and was respect to its critical habitat, if any is such a species or to destroy or adversely
occupied at the time of listing. The proposed or designated. Regulations modify its critical habitat. Recent
distribution of small forest openings and implementing this interagency decisions by the 5th and 9th Circuit
meadows, and the five occurrence cooperation provision of the Act are Courts of Appeals have invalidated our
records along the Observatory Trail, codified at 50 CFR part 402. regulatory definition of ‘‘adverse
indicate historical occupancy of Laguna Section 7(a)(4) of the Act requires modification’’ at 50 CFR 402.02 (see
Mountains skipper populations in Federal agencies to confer with us on Gifford Pinchot Task Force v. U.S. Fish
unsurveyed portions of Upper French any action that is likely to jeopardize and Wildlife Service, 378 F.3d 1059 (9th
Valley. Lands in this subunit are subject the continued existence of a species Cir. 2004) and Sierra Club v. U.S. Fish
to grazing and recreational activities, proposed for listing or result in and Wildlife Service et al., 245 F.3d 434,
and special management considerations destruction or adverse modification of 442F (5th Cir. 2001)). Pursuant to
such as hostplant distribution proposed critical habitat. This is a current national policy and the statutory
monitoring, grazing and recreation procedural requirement only. However, provisions of the Act, we determine
exclosure maintenance, and grazing once proposed species becomes listed, destruction or adverse modification
density adjustments may be required to or proposed critical habitat is based on whether, with implementation
maintain the PCEs. This subunit designated as final, the full prohibitions of the proposed Federal action, the
contains 93 ac (38 ha) of Forest Service of section 7(a)(2) apply to any Federal affected critical habitat would remain
managed lands and 905 ac (366 ha) of action. The primary utility of the functional (or retain the current ability
privately owned land (Table 1). conference procedures is to maximize for the primary constituent elements to
the opportunity for a Federal agency to be functionally established) to serve its
Unit 2C: Upper Doane Valley and Girl adequately consider proposed species intended conservation role for the
Scout Camp and critical habitat and avoid potential species.
Subunit 2C (547 ac (221 ha)) is known delays in implementing their proposed If a Federal action may affect a listed
to be currently occupied, but was not action as a result of the section 7(a)(2) species or its critical habitat, the
known to be occupied at the time of compliance process, should those responsible Federal agency (action
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listing. Subunit 2C is essential because: species be listed or the critical habitat agency) must enter into consultation
(1) It contains habitat features essential designated. with us. As a result of this consultation,
to the conservation of the species; (2) Under conference procedures, the compliance with the requirements of
allows for population expansion and Service may provide advisory section 7(a)(2) will be documented
enhancement; and (3) minimizes habitat conservation recommendations to assist through the Service’s issuance of: (1) A

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concurrence letter for Federal actions consultation process. Federal actions or adversely modify critical habitat may
that may affect, but are not likely to not affecting listed species or critical also jeopardize the continued existence
adversely affect, listed species or critical habitat, and actions on State, Tribal, of the species.
habitat; or (2) a biological opinion for local or private lands that are not Activities that may destroy or
Federal actions that may affect, but are federally-funded, authorized, or adversely modify critical habitat are
likely to adversely affect, listed species permitted, do not require section 7 those that alter the PCEs to an extent
or critical habitat. consultations. that the conservation value of critical
When we issue a biological opinion habitat for the Laguna Mountains
concluding a project is likely to result Application of the Jeopardy and skipper is appreciably reduced.
in jeopardy to a listed species or Adverse Modification Standards for Activities that, when carried out,
destruction or adverse modification of Actions Involving Effects to the Laguna funded, or authorized by a Federal
critical habitat, we also provide Mountains Skipper and Its Critical agency, may affect critical habitat and
reasonable and prudent project Habitat therefore result in consultation for the
alternatives, if any are identifiable. Jeopardy Standard Laguna Mountains skipper include, but
‘‘Reasonable and prudent alternatives’’ are not limited to:
are defined at 50 CFR 402.02 as When performing jeopardy analyses (1) Actions that destroy Laguna
alternative actions identified during for the Laguna Mountains skipper, the Mountains skipper hostplants and
consultation that can be implemented in Service applies an analytical framework immature life stages of the species. Such
a manner consistent with the intended that relies heavily on the importance of activities could include, but are not
purpose of the action, that are consistent core area populations to the survival limited to overgrazing by livestock,
with the scope of the Federal agency’s and recovery of the Laguna Mountains vegetation removal, and recreational
legal authority and jurisdiction, that are skipper. The section 7(a)(2) analysis is activities. These activities could
economically and technologically focused not only on these populations eliminate breeding and nectaring
feasible, and that the Director believes but also on the habitat conditions resources for the adults, and directly
would avoid jeopardy to the listed necessary to support them. destroy eggs, pupae, or larvae.
species or destruction or adverse The jeopardy analysis usually (2) Actions that would, over the long-
modification of critical habitat. expresses the survival and recovery term or permanently destroy habitat
Reasonable and prudent alternatives can needs of the Laguna Mountains skipper containing primary constituent
vary from slight project modifications to in a qualitative fashion without making elements. Such activities could include,
extensive redesign or relocation of the distinctions between what is necessary but are not limited to: removal or
project. Costs associated with for survival and what is necessary for destruction of hostplants and nectar
implementing a reasonable and prudent recovery. Generally, if a proposed sources by paving or piling logs;
alternative are similarly variable. Federal action is incompatible with the erection of permanent structures or
Regulations at 50 CFR 402.16 require viability of the affected core area cultivation of large shrubs or trees that
Federal agencies to reinitiate population(s), inclusive of associated impede adult movement; manipulation
consultation on previously reviewed habitat conditions, a jeopardy finding is of seeps, springs, or creeks that
actions in certain instances, including considered to be warranted, because of eliminates surface moisture; paved road
where a new species is listed or critical the relationship of each core area construction in occupied habitat; and
habitat is subsequently designated that population to the survival and recovery rural development that eliminates or
may be affected by the Federal action, of the species as a whole. fragments habitat. These activities
where the Federal agency has retained Adverse Modification Standard reduce the amount of available habitat
discretionary involvement or control and directly and indirectly increase the
over the action or such discretionary The analytical framework described extirpation probability of associated
involvement or control is authorized by in the Director’s December 9, 2004, Laguna Mountains skipper populations.
law. Consequently, some Federal memorandum is used to complete (3) Actions that would alter the
agencies may request reinitiation of section 7(a)(2) analyses for Federal vegetation of meadow habitat, for
consultation with us on actions for actions affecting Laguna Mountains example invasion of exotic species or
which formal consultation has been skipper critical habitat. The key factor forest encroachment. Such activities
completed, if those actions may affect related to the adverse modification could include, but are not limited to,
subsequently listed species or determination is whether, with stream or groundwater diversion. These
designated critical habitat or adversely implementation of the proposed Federal activities could decrease the area of
modify or destroy proposed critical action, the affected critical habitat open meadow and soil moisture content
habitat. would remain functional (or retain the and eliminate suitable Laguna
Federal activities that may affect the current ability for the primary Mountains skipper oviposition sites.
Laguna Mountains skipper or its constituent elements to be functionally Fire management activities, such as
designated critical habitat will require established) to serve its intended tree and brush removal for fuel
section 7 consultation under the Act. conservation role for the species. modification, or relatively low density
Activities on State, Tribal, local or Generally, the conservation role of grazing should not adversely modify
private lands requiring a Federal permit Laguna Mountains skipper critical habitat if carefully managed to minimize
(such as a permit from the Corps under habitat units is to support viable core or avoid destruction of hostplants.
section 404 of the Clean Water Act or a area populations. All of the units identified as critical
permit under section 10(a)(1)(B) of the Section 4(b)(8) of the Act requires us habitat contain features essential to the
Act from the Service) or involving some to briefly evaluate and describe in any conservation of the Laguna Mountains
other Federal action (such as funding proposed or final regulation that skipper. All units are within the
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from the Federal Highway designates critical habitat those geographic range of the species. Federal
Administration, Federal Aviation activities involving a Federal action that agencies already consult with us on
Administration, or the Federal may destroy or adversely modify such activities in areas currently occupied by
Emergency Management Agency) will habitat, or that may be affected by such the Laguna Mountains skipper, or if the
also be subject to the section 7 designation. Activities that may destroy species may be affected by the action, to

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ensure that their actions do not Provisions within two Forest Service of exclusion of the areas identified as
jeopardize the continued existence of management documents also promote critical habitat within the Cleveland
the Laguna Mountains skipper. conservation of the Laguna Mountains National Forest do not outweigh the
skipper. The Cleveland National Forest benefits of inclusion of these areas, we
Exclusions Under Section 4(b)(2) of the
has a habitat management guide for four did not exclude Forest Service lands
Act
sensitive plant species in mountain from the final designation under section
Section 4(b)(2) of the Act states that meadows habitat (Cleveland National 4(b)(2) of the Act.
critical habitat shall be designated, and Forest 1991, pp. 1–36). While the Based on the best available
revised, on the basis of the best habitat management guide is designed information including the prepared
available scientific data after taking into to facilitate conservation of meadow economic analysis, we believe that all of
consideration the economic impact, habitat and protection of sensitive plant the units known to occupied at the time
national security impact, and any other species affected by grazing and of listing contain the features essential
relevant impact, of specifying any recreation, it does not specifically for conservation of the species and that
particular area as critical habitat. The provide for conservation of the Laguna the units not known to be currently
Secretary may exclude an area from Mountains skipper. In addition, the occupied are essential for the
critical habitat if [s]he determines that 2005 Land Management Plan for the conservation of the species. Our
the benefits of such exclusion outweigh Cleveland National Forest (LMP) economic analysis indicates an overall
the benefits of specifying such area as provides long-term strategic low cost resulting from the designation.
part of the critical habitat, unless [s]he management direction for Forest Service Therefore, we have found no areas for
determines, based on the best scientific lands (Terrell 2006a, pp. 1; 2006b, pp. which the benefits of exclusion
data available, that the failure to 1–2). According to the Forest Service outweigh the benefits of inclusion, and
designate such area as critical habitat Land Management Plan Part 1: Southern have not excluded any areas from this
will result in the extinction of the California National Forests Vision designation of critical habitat for the
species. In making that determination, (Forest Service 2005, p. 3): Laguna Mountains skipper based on
the Secretary is afforded broad The purpose of the [LMP] is to articulate economic impacts.
discretion and the Congressional record the long-term vision and strategic Pursuant to section 4(b)(2) of the Act,
is clear that in making a determination management direction for each southern we must consider other relevant impacts
under the section the Secretary has California national forest and to facilitate the in addition to economic ones. We are
discretion as to which factors and how development of management activities . . . It not aware of any habitat conservation
much weight will be given to any factor. is important to emphasize that the revised plans currently being developed for
forest plans are completely strategic. They do
Under section 4(b)(2), in considering Laguna Mountains skipper on any lands
not make project level decisions nor do they
whether to exclude a particular area compel managers to implement specific included in this final designation. Also,
from the designation, we must identify actions or activities. Current uses are carried this designation does not include any
the benefits of including the area in the forward. Any changes made to existing uses Tribal lands or trust resources.
designation, identify the benefits of or new proposals will be determined at the Therefore, we anticipate no impact to
excluding the area from the designation, project level according to the requirements of national security, Tribal lands,
and determine whether the benefits of the National Environmental Policy Act. partnerships, or habitat conservation
exclusion outweigh the benefits of New hostplant and Laguna Mountains plans from this critical habitat
inclusion. If an exclusion is skipper locations have been recorded designation. As such, we have
contemplated, then we must determine since the Cleveland National Forest considered these potential impacts but
whether excluding the area would result developed a model (map) of Laguna are not excluding any lands from this
in the extinction of the species. Mountains skipper habitat (Winter 2000, designation under section 4(b)(2).
Forest Service actions, completed and pg. 1). Although Forest Service modeled Economic Analysis
ongoing, contribute to the conservation habitat (Winter 2000, pg. 1) comprised
of the Laguna Mountains skipper and its 67 percent (4,464 of 6,662 acres (1,807 Section 4(b)(2) of the Act requires us
habitat. The Cleveland National Forest of 2,696 ha)) of Laguna Mountains to designate critical habitat on the basis
has implemented measures to minimize skipper proposed critical habitat, some of the best scientific information
impacts to the Laguna Mountains areas of proposed critical habitat where available and to consider the economic
skipper, pursuant to consultation with hostplant occurrence data were and other relevant impacts of
the Service under section 7 of the Act concentrated fell outside of Forest designating a particular area as critical
(Service Biological Opinions 1–6–05–F– Service modeled habitat (e.g., at the habitat. We may exclude areas from
773.9, 1–6–99–F–22, and 1–6–01–F– southern end of subunit 1A). critical habitat upon a determination
1694). Implemented post-listing impact The Forest Service LMP provides that the benefits of such exclusions
minimization measures include: (1) An some species-specific directions for outweigh the benefits of specifying such
exclosure to reduce recreation impacts protecting the Laguna Mountains areas as critical habitat. We cannot
and tree thinning to enhance habitat in skipper, including the standard, exclude such areas from critical habitat
1997 at Observatory Campground; (2) ‘‘[a]void or mitigate, following when such exclusion will result in the
grazing exclosures to study grazing consultation, activities resulting in extinction of the species concerned.
effects in 1996, 1999, and 2000, at direct trampling or erosion problems to Following the publication of the
Mendenhall Valley, Little Laguna Laguna Mountains Skipper suitable and proposed critical habitat designation,
Meadow, and Laguna Meadow; (3) occupied habitat and adjacent areas.’’ we conducted an economic analysis to
visitor impact monitoring and visitor Because there are relatively large areas estimate the potential economic effect of
capacity reduction to minimize of habitat not known to be occupied on the designation. The draft analysis was
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recreation impacts at Laguna Laguna and Palomar Mountains, made available for public review on July
Campground; and (4) habitat studies designation of critical habitat will help 7, 2006 (71 FR 38593). We accepted
and surveys from 2000 to 2006 to identify where consultation and comments on the draft analysis until
increase biological knowledge of the conservation is needed for the Laguna August 7, 2006. We respond to the
species. Mountains skipper. Because the benefits comments we received on the draft

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analysis in the Summary of Comments estimate of costs assumes grazing jurisdictions). However, no regulatory
and Recommendations section above. activities on private lands in proposed flexibility analysis is required if the
The primary purpose of the economic critical habitat will be restricted and head of an agency certifies the rule will
analysis is to estimate the potential that utility projects will last longer than not have a significant economic impact
economic impacts associated with the a single day. Costs under this estimate on a substantial number of small
designation of critical habitat for the are dominated by lost camping entities. The SBREFA amended the RFA
Laguna Mountains skipper. This opportunities (64 percent) and to a to require Federal agencies to provide a
information is intended to assist the lesser extent costs to utilities (22 statement of factual basis for certifying
Secretary in making decisions about percent). In the low-end estimate, 95 that the rule will not have a significant
whether the benefits of excluding percent of the costs are associated with economic impact on a substantial
particular areas from the designation Subunits 1A and 1C. In the high-end number of small entities. The SBREFA
outweigh the benefits of including those estimate, Subunits 1A and 1C again also amended the RFA to require a
areas in the designation. This economic dominate total costs, accounting for 83 certification statement.
analysis considers the economic percent of total estimated impacts. Small entities include small
efficiency effects that may result from A copy of the final economic analysis organizations, such as independent
the designation, including habitat with supporting documents is included nonprofit organizations; small
protections that may be co-extensive in our administrative record and may be governmental jurisdictions, including
with the listing of the species. It also obtained by contacting U.S. Fish and school boards and city and town
addresses distribution of impacts, Wildlife Service, Branch of Endangered governments that serve fewer than
including an assessment of the potential Species (see ADDRESSES section) or for 50,000 residents; as well as small
effects on small entities and the energy downloading from the Internet at businesses. Small businesses include
industry. This information can be used http://www.fws.gov/carlsbad/. manufacturing and mining concerns
by the Secretary to assess whether the with fewer than 500 employees,
effects of the designation might unduly Required Determinations wholesale trade entities with fewer than
burden a particular group or economic Regulatory Planning and Review 100 employees, retail and service
sector. businesses with less than $5 million in
This analysis focuses on the direct In accordance with Executive Order annual sales, general and heavy
and indirect costs of the rule. However, 12866, this document is a significant construction businesses with less than
economic impacts to land use activities rule in that it may raise novel legal and $27.5 million in annual business,
can exist in the absence of critical policy issues, but will not have an special trade contractors doing less than
habitat. These impacts may result from, annual effect on the economy of $100 $11.5 million in annual business, and
for example, local zoning laws, State million or more or affect the economy agricultural businesses with annual
and natural resource laws, and in a material way. Due to the tight sales less than $750,000. To determine
enforceable management plans and best timeline for publication in the Federal if potential economic impacts to these
management practices applied by other Register, the Office of Management and small entities are significant, we
State and Federal agencies. Economic Budget (OMB) has not formally consider the types of activities that
impacts that result from these types of reviewed this rule. As explained above, might trigger regulatory impacts under
protections are not included in the we prepared an economic analysis of this rule, as well as the types of project
analysis as they are considered to be this action. We used this analysis to modifications that may result. In
part of the regulatory and policy meet the requirement of section 4(b)(2) general, the term ‘‘significant economic
baseline. of the Act to determine the economic impact’’ is meant to apply to a typical
Laguna Mountains skipper consequences of designating the specific small business firm’s business
conservation activities are likely to areas as critical habitat. We also used it operations.
primarily impact recreational camping to help determine whether to exclude To determine if the rule could
and utility maintenance activities. The any area from critical habitat, as significantly affect a substantial number
draft economic analysis estimates the provided for under section 4(b)(2), if we of small entities, we consider the
potential total future impacts to range determine that the benefits of such number of small entities affected within
from $6.5 million to $8.9 million exclusion outweigh the benefits of particular types of economic activities
(undiscounted) over 20 years. specifying such area as part of the (e.g., housing development, grazing, oil
Discounted future costs are estimated to critical habitat, unless we determine, and gas production, timber harvesting).
be $3.7 million to $5.1 million over this based on the best scientific data We apply the ‘‘substantial number’’ test
same time period ($351,000 to $480,000 available, that the failure to designate individually to each industry to
annually) using a real rate of 7 percent, such area as critical habitat will result determine if certification is appropriate.
or $5.0 million to $6.9 million ($337,000 in the extinction of the species. However, the SBREFA does not
to $461,000 annually) using a real rate explicitly define ‘‘substantial number’’
of 3 percent. Differences in the low and Regulatory Flexibility Act (5 U.S.C. 601
or ‘‘significant economic impact.’’
high impact estimates result primarily et seq.)
Consequently, to assess whether a
from uncertainty regarding the potential Under the Regulatory Flexibility Act ‘‘substantial number’’ of small entities is
impacts to utility companies conducting (RFA) (as amended by the Small affected by this designation, this
maintenance activities and making Business Regulatory Enforcement analysis considers the relative number
repairs in proposed critical habitat. The Fairness Act (SBREFA) of 1996), of small entities likely to be impacted in
low-end estimate of costs assumes whenever an agency is required to an area. In some circumstances,
grazing on private lands is not affected publish a notice of rulemaking for any especially with critical habitat
and biologists’ time on site during proposed or final rule, it must prepare designations of limited extent, we may
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utility repairs and maintenance is and make available for public comment aggregate across all industries and
limited to one day per project. Costs a regulatory flexibility analysis that consider whether the total number of
under this estimate are dominated (88 describes the effect of the rule on small small entities affected is substantial. In
percent) by welfare losses to campers in entities (i.e., small businesses, small estimating the number of small entities
Subunits 1A and 1C. The high-end organizations, and small government potentially affected, we also consider

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whether their activities have any to the recent wildfires and droughts in planning and evaluation purposes,
Federal involvement. California. As a result, any reductions in IMPLAN translates estimates of initial
Designation of critical habitat only grazing effort for the Laguna Mountains trip expenditures (e.g., food, lodging,
affects activities conducted, funded, or skipper may affect the sustainability of and gas) into changes in demand for
permitted by Federal agencies. Some ranching operations in these areas. The inputs to affected industries. Changes in
kinds of activities are unlikely to have analysis assumes that in the future, output and employment are calculated
any Federal involvement and so will not grazing efforts on proposed critical for all industries and then aggregated to
be affected by critical habitat habitat areas will be reduced, or in the determine the regional economic impact
designation. In areas where the species high-end estimate, eliminated on private of reduced recreational camping-related
is present, Federal agencies already are land due to skipper concerns. Private expenditures potentially associated with
required to consult with us under ranchers could be affected either by Laguna Mountains skipper conservation
section 7 of the Act on activities they reductions in federally permitted AUMs activities.
fund, permit, or implement that may that they hold permits to, or by This analysis uses the average
affect the Laguna Mountains skipper. reductions on grazing efforts on private expenditures reported by the 2001
Federal agencies also must consult with property to avoid adverse impacts on National Survey of Fishing, Hunting,
us if their activities may affect critical Laguna Mountains skipper habitat. The and Wildlife-Associated Recreation for
habitat. Designation of critical habitat, expected reduction in AUMs is based on California for fishing, hunting and
therefore, could result in an additional an examination of historical grazing wildlife-associated recreation, or
economic impact on small entities due levels, section 7 consultations, and approximately $26.23 per trip. This per-
to the requirement to reinitiate discussions with range managers, trip estimate of expenditures is then
consultation for ongoing Federal wildlife biologist, and permittees. Based combined with the number of camping
activities. on this analysis, the high-end impact on trips potentially lost due to Laguna
Our economic analysis determined grazing activities is estimated at an Mountains skipper conservation
that costs involving conservation annual reduction of 1,979 AUMs, of activities (a 1-year loss of 5,352 trips per
measures for the Laguna Mountains which 1,363 are federally permitted and year) to estimate the regional economic
skipper would be incurred for activities 618 are private. The majority of these impacts. When compared to the $192
involving: (1) Grazing activities; (2) AUM reductions fall on two ranchers: billion dollar regional economy of San
recreational camping activities; (3) one operating in Subunit 1A and Diego County, the potential loss
recreational hiking activities; (4) utility another operating in Subunit 2A. generated by a decrease in camping trips
activities; (5) rural development; (6) Therefore, cumulatively over 20 years, is a relatively small impact (i.e., less
other activities on Federal lands; and, two ranchers could be affected by total than 0.01 percent). Therefore based on
(7) Laguna Mountains skipper reductions in AUMs due to Laguna these results, this analysis determines
management activities on State lands. Mountains skipper conservation no significant effect on camping-related
As explained in our draft economic activities. industries due to Laguna Mountains
analysis, impacts of skipper The economic analysis considers skipper conservation activities in San
conservation are not anticipated to lower- and upper-bounds of potential Diego County.
affect small entities in five of these economic impact on recreational In general, two different mechanisms
seven categories: hiking; utilities; rural camping activities. The lower-bound in section 7 consultations could lead to
development; other activities on Federal equals no economic impact. In the additional regulatory requirements for
lands; and management activities on upper-bound, economic impacts are the approximately four small
State lands. Since neither Federal nor estimated for recreational campers businesses, on average, that may be
State governments are defined as small whose activities may be interrupted by required to consult with us each year
entities by the Small Business Laguna Mountains skipper conservation regarding their project’s impact on
Administration (SBA), the economic activities resulting in a decrease in the Laguna Mountains skipper and its
impacts borne by the Forest Service and number of camping trips. Scenario 2 habitat. First, if we conclude, in a
the California Department of Fish and concludes that camping trips may biological opinion, that a proposed
Game (CDFG) resulting from decrease by as many as 5,352 trips per action is likely to jeopardize the
implementation of skipper conservation year. If fewer camping trips were to continued existence of a species or
activities or modifications to activities occur within proposed critical habitat adversely modify its critical habitat, we
on Federal lands are not relevant to this areas, local establishments providing can offer ‘‘reasonable and prudent
analysis. Likewise, neither of the major services to campers may be indirectly alternatives.’’ Reasonable and prudent
utility companies involved (SDG&E and affected by Laguna Mountains skipper alternatives are alternative actions that
AT&T) would fit the SBA definition of conservation activities. Decreased can be implemented in a manner
small entities. Accordingly, the small visitation may reduce the amount of consistent with the scope of the Federal
business analysis focuses on economic money spent in the region across a agency’s legal authority and
impacts to grazing and recreational variety of industries, including food and jurisdiction, that are economically and
camping activities. beverage stores, food service and technologically feasible, and that would
The designation includes areas of drinking places, accommodations, avoid jeopardizing the continued
USFS and private lands that are used for transportation and rental services. existence of listed species or result in
livestock grazing. On some Federal The economic analysis uses regional adverse modification of critical habitat.
allotments that contain Laguna economic modeling—in particular a A Federal agency and an applicant may
Mountains skipper habitat, meadow software package called IMPLAN—to elect to implement a reasonable and
areas have been excluded from grazing, estimate the total economic effects of prudent alternative associated with a
thus reducing the carrying capacity, or the reduction in economic activity in biological opinion that has found
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permitted Animal Unit Months (AUMs), camping-related industries in the one jeopardy or adverse modification of
on those allotments. Historically, county (San Diego County) associated critical habitat. An agency or applicant
returns to cattle operations have been with Laguna Mountains skipper could alternatively choose to seek an
low throughout the West. In recent conservation activities. Commonly used exemption from the requirements of the
years, these returns have been lower due by State and Federal agencies for policy Act or proceed without implementing

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the reasonable and prudent alternative. It is likely that a developer or other rule to designated critical habitat for the
However, unless an exemption were project proponent could modify a Laguna Mountains skipper is not
obtained, the Federal agency or project or take measures to protect the expected to significantly affect energy
applicant would be at risk of violating Laguna Mountains skipper. The kinds of supplies, distribution, or use. Therefore,
section 7(a)(2) of the Act if it chose to actions that may be included if future this action is not a significant energy
proceed without implementing the reasonable and prudent alternatives action and no Statement of Energy
reasonable and prudent alternatives. become necessary include conservation Effects is required.
Second, if we find that a proposed set-asides, management of competing
action is not likely to jeopardize the Unfunded Mandates Reform Act (2
nonnative species, restoration of
continued existence of a listed animal, U.S.C. 1501 et seq.)
degraded habitat, and regular
we may identify reasonable and prudent monitoring. These are based on our In accordance with the Unfunded
measures designed to minimize the understanding of the needs of the Mandates Reform Act (2 U.S.C. 1501 et
amount or extent of take and require the species and the threats it faces, as seq.), we make the following findings:
Federal agency or applicant to described in the final listing rule and (a) This rule will not produce a
implement such measures through non- proposed critical habitat designation. Federal mandate. In general, a Federal
discretionary terms and conditions. We These measures are not likely to result mandate is a provision in legislation,
may also identify discretionary in a significant economic impact to statute, or regulation that would impose
conservation recommendations project proponents. an enforceable duty upon State, local,
designed to minimize or avoid the In summary, we have considered Tribal governments, or the private sector
adverse effects of a proposed action on whether this would result in a and includes both ‘‘Federal
listed species or critical habitat, help significant economic effect on a intergovernmental mandates’’ and
implement recovery plans, or to develop substantial number of small entities. ‘‘Federal private sector mandates.’’
information that could contribute to the Federal involvement, and thus section 7 These terms are defined in 2 U.S.C.
recovery of the species. consultations, would be limited to a 658(5)–(7). ‘‘Federal intergovernmental
Based on our experience with subset of the area designated. Only two mandate’’ includes a regulation that
consultations pursuant to section 7 of potential small entities engaged in ‘‘would impose an enforceable duty
the Act for all listed species, virtually grazing may be impacted by the upon State, local, or Tribal
all projects—including those that, in designation of critical habitat for the governments’’ with two exceptions. It
their initial proposed form, would result Laguna Mountains skipper, and the excludes ‘‘a condition of federal
in jeopardy or adverse modification potential economic loss attributable to assistance.’’ It also excludes ‘‘a duty
determinations in section 7 impacts to recreational activities is arising from participation in a voluntary
consultations—can be implemented small (i.e., less than 0.01 percent). Federal program,’’ unless the regulation
successfully with, at most, the adoption Therefore, for the above reasons and ‘‘relates to a then-existing Federal
of reasonable and prudent alternatives. based on currently available program under which $500,000,000 or
These measures, by definition, must be information, we certify that the rule will more is provided annually to State,
economically feasible and within the not have a significant economic impact local, and Tribal governments under
scope of authority of the Federal agency on a substantial number of small entitlement authority,’’ if the provision
involved in the consultation. We can entities, and a regulatory flexibility would ‘‘increase the stringency of
only describe the general kinds of analysis is not required. conditions of assistance’’ or ‘‘place caps
actions that may be identified in future upon, or otherwise decrease, the Federal
Small Business Regulatory Enforcement Government’s responsibility to provide
reasonable and prudent alternatives. Fairness Act (5 U.S.C. 801 et seq.)
These are based on our understanding of funding’’ and the State, local, or Tribal
the needs of the species and the threats Under SBREFA, this rule is not a governments ‘‘lack authority’’ to adjust
it faces, as described in the final listing major rule. Our detailed assessment of accordingly. (At the time of enactment,
rule and this critical habitat designation. the economic effects of this designation these entitlement programs were:
Within the final critical habitat units, is described in the economic analysis. Medicaid; AFDC work programs; Child
the types of Federal actions or Based on the effects identified in the Nutrition; Food Stamps; Social Services
authorized activities that we have economic analysis, we believe that this Block Grants; Vocational Rehabilitation
identified as potential concerns are: rule will not have an annual effect on State Grants; Foster Care, Adoption
(1) Regulation of activities affecting the economy of $100 million or more, Assistance, and Independent Living;
waters of the United States by the Corps will not cause a major increase in costs Family Support Welfare Services; and
under section 404 of the Clean Water or prices for consumers, and will not Child Support Enforcement.) ‘‘Federal
Act; have significant adverse effects on private sector mandate’’ includes a
(2) Regulation of water flows, competition, employment, investment, regulation that ‘‘would impose an
damming, diversion, and channelization productivity, innovation, or the ability enforceable duty upon the private
implemented or licensed by Federal of U.S.-based enterprises to compete sector, except (i) a condition of Federal
agencies; with foreign-based enterprises. Refer to assistance; or (ii) a duty arising from
(3) Regulation of timber harvest, the final economic analysis for a participation in a voluntary Federal
grazing, mining, and recreation by the discussion of the effects of this program.’’
USFS and BLM; determination. The designation of critical habitat
(4) Road construction and does not impose a legally binding duty
Executive Order 13211 on non-Federal government entities or
maintenance, right-of-way designation,
and regulation of agricultural activities; On May 18, 2001, the President issued private parties. Under the Act, the only
(5) Hazard mitigation and post- Executive Order 13211 on regulations regulatory effect is that Federal agencies
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disaster repairs funded by the FEMA; that significantly affect energy supply, must ensure that their actions do not
and distribution, and use. Executive Order destroy or adversely modify critical
(6) Activities funded by the EPA, U.S. 13211 requires agencies to prepare habitat under section 7. While non-
Department of Energy, or any other Statements of Energy Effects when Federal entities who receive Federal
Federal agency. undertaking certain actions. This final funding, assistance, permits or

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74608 Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations

otherwise require approval or occur, it may assist these local ‘‘Government-to-Government Relations
authorization from a Federal agency for governments in long-range planning with Native American Tribal
an action may be indirectly impacted by (rather than waiting for case-by-case Governments’’ (59 FR 22951), Executive
the designation of critical habitat, the section 7 consultations to occur). Order 13175, and the Department of
legally binding duty to avoid Interior’s manual at 512 DM 2, we
Civil Justice Reform
destruction or adverse modification of readily acknowledge our responsibility
critical habitat rests squarely on the In accordance with Executive Order to communicate meaningfully with
Federal agency. Furthermore, to the 12988, the Office of the Solicitor has recognized Federal Tribes on a
extent that non-Federal entities are determined that the rule does not government-to-government basis. We
indirectly impacted because they unduly burden the judicial system and have determined that there are no Tribal
receive Federal assistance or participate meets the requirements of sections 3(a) lands supporting Laguna Mountains
in a voluntary Federal aid program, the and 3(b)(2) of the Order. We are skipper habitat that meets the definition
Unfunded Mandates Reform Act would designating critical habitat in of critical habitat. Therefore, critical
not apply; nor would critical habitat accordance with the provisions of the habitat for the Laguna Mountains
shift the costs of the large entitlement Endangered Species Act. This final rule skipper has not been designated on
programs listed above on to State uses standard property descriptions and Tribal lands.
governments. identifies the primary constituent
(b) We do not believe that this rule elements within the designated areas to References Cited
will significantly or uniquely affect assist the public in understanding the A complete list of all references cited
small governments because it will not habitat needs of the Laguna Mountains in this rulemaking is available upon
produce a Federal mandate of $100 skipper. request from the Field Supervisor,
million or greater in any year, that is, it Carlsbad Fish and Wildlife Office (see
is not a ‘‘significant regulatory action’’ Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) ADDRESSES section).
under the Unfunded Mandates Reform
Act. The designation of critical habitat This rule does not contain any new Author(s)
imposes no obligations on State or local collections of information that require
governments. As such, Small approval by OMB under the Paperwork The primary authors of this package
Government Agency Plan is not Reduction Act. This rule will not are staff from the Carlsbad Fish and
required. impose recordkeeping or reporting Wildlife Office.
requirements on State or local List of Subjects in 50 CFR Part 17
Federalism
governments, individuals, businesses, or
In accordance with Executive Order organizations. An agency may not Endangered and threatened species,
13132, the rule does not have significant conduct or sponsor, and a person is not Exports, Imports, Reporting and
Federalism effects. A Federalism required to respond to, a collection of recordkeeping requirements,
assessment is not required. In keeping information unless it displays a Transportation.
with DOI and Department of Commerce currently valid OMB control number. Regulation Promulgation
policy, we requested information from,
and coordinated development of, this National Environmental Policy Act
■ Accordingly, we amend part 17,
final critical habitat designation with It is our position that, outside the subchapter B of chapter I, title 50 of the
appropriate State resource agencies in Tenth Circuit, we do not need to Code of Federal Regulations, as set forth
California. The designation of critical prepare environmental analyses as below:
habitat for the Laguna Mountains defined by the NEPA in connection with
skipper may impose nominal additional designating critical habitat under the PART 17—[AMENDED]
regulatory restrictions to those currently Endangered Species Act of 1973, as
in place and, therefore, may have an amended. We published a notice ■ 1. The authority citation for part 17
incremental impact on State and local outlining our reasons for this continues to read as follows:
governments and their activities. The determination in the Federal Register Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
designation may have some benefit to on October 25, 1983 (48 FR 49244). This 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
these governments in that the areas that assertion was upheld in the courts of the 625, 100 Stat. 3500; unless otherwise noted.
contain the features essential to the Ninth Circuit (Douglas County v.
conservation of the species are more Babbitt, 48 F. 3d 1495 (9th Cir. Ore. ■ 2. In § 17.11(h), revise the entry for
clearly defined, and the primary 1995), cert. denied 116 S. Ct. 698 ‘‘Laguna Mountains skipper’’ under
constituent elements of the habitat (1996).) ‘‘INSECTS’’ to read as follows:
necessary to the conservation of the
species are specifically identified. While Government-to-Government § 17.11 Endangered and threatened
Relationship with Tribes wildlife.
making this definition and
identification does not alter where and In accordance with the President’s * * * * *
what federally sponsored activities may memorandum of April 29, 1994, (h) * * *
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Species Vertebrate
population where Critical
Historic range Status When listed Special rules
endangered or habitat
Common name Scientific name threatened

* * * * * * *
INSECTS

* * * * * * *
Skipper, Laguna Pyrgus ruralis U.S.A. (CA) ........... Entire .................... E ............ 604 17.95(i) NA
Mountains. lagunae.

* * * * * * *

3. In § 17.95(i), add an entry for (2) The primary constituent elements minerals are obtained during the adult
Laguna Mountains Skipper (Pyrgus of critical habitat for the Laguna flight season.
ruralis lagunae) under ‘‘INSECTS’’ in Mountains skipper are the habitat (3) Critical habitat does not include
the same alphabetical order as this components that provide: man-made structures existing on the
species appears in the table in § 17.11(h) (i) The hostplants, Horkelia effective date of this rule and not
to read as follows: clevelandii or Potentilla glandulosa, containing one or more of the primary
which are needed for reproduction, in constituent elements, such as buildings,
§ 17.95 Critical habitat—fish and wildlife. aqueducts, airports, and roads, and the
meadows or forest openings.
* * * * * land on which such structures are
(ii) Nectar sources suitable for feeding located.
(i) Insects.
by adult Laguna Mountains skipper, (4) Data layers defining map units
* * * * * including Lasthenia spp., Pentachaeta were created on a base of USGS 1:24,000
Laguna Mountains Skipper (Pyrgus aurea, Ranunculus spp., and Sidalcea quadrangle maps, and critical habitat
ruralis lagunae) spp., found in woodlands or meadows. units were then mapped using Universal
(1) Critical habitat units are depicted (iii) Wet soil or standing water Transverse Mercator (UTM) coordinates.
for San Diego County, California, on the associated with features such as seeps, (5) Note: Map 1 (index map) follows:
maps below. springs, or creeks where water and BILLING CODE 4310–55–P
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(6) Unit 1: Laguna Mountain, San 3640300; 549600, 3640300; 549600, 3636500; 551600, 3636500; 551600,
Diego County, California. From USGS 3640500; 549800, 3640500; 549800, 3636400; 551700, 3636400; 551700,
1:24,000 quadrangle maps Monument 3640600; 550100, 3640600; 550100, 3636300; 551800, 3636300; 551800,
Peak and Mount Laguna. 3640500; 550200, 3640500; 550200, 3636200; 552000, 3636200; 552000,
(i) Subunit 1A: lands bounded by the 3640400; 550300, 3640400; 550300, 3636100; 552100, 3636100; 552100,
following UTM NAD27 coordinates 3640000; 551000, 3640000; 551000, 3636000; 552200, 3636000; 552200,
(E,N): 551900, 3635400; 551900, 3639900; 551100, 3639900; 551100, 3635900; 552300, 3635900; 552300,
3635600; 551800, 3635600; 551800, 3639700; 550500, 3639700; 550500, 3635500; 552200, 3635500; 552200,
3635300; 552000, 3635300; 552000, 3639400; 550400, 3639400; 550400, 3635400; 551900, 3635400.
3634900; 551800, 3634900; 551800, 3639300; 550500, 3639300; 550500,
3635000; 551600, 3635000; 551600, (ii) Subunit 1B: lands bounded by the
3639200; 550600, 3639200; 550600,
3634900; 551400, 3634900; 551400, following UTM NAD27 coordinates
3639100; 550700, 3639100; 550700,
3635300; 551300, 3635300; 551300, (E,N): 549300, 3642300; 549400,
3639000; 550800, 3639000; 550800,
3635600; 551200, 3635600; 551200, 3638900; 551000, 3638900; 551000, 3642300; 549400, 3642400; 549600,
3635700; 551100, 3635700; 551100, 3639300; 551100, 3639300; 551100, 3642400; 549600, 3642300; 549800,
3636000; 551000, 3636000; 551000, 3639500; 551300, 3639500; 551300, 3642300; 549800, 3642200; 549900,
3636100; 550900, 3636100; 550900, 3639700; 551700, 3639700; 551700, 3642200; 549900, 3641900; 550000,
3636200; 550800, 3636200; 550800, 3639400; 551800, 3639400; 551800, 3641900; 550000, 3641400; 550100,
3636100; 550700, 3636100; 550700, 3639300; 551900, 3639300; 551900, 3641400; 550100, 3640900; 549600,
3636000; 550800, 3636000; 550800, 3639100; 551800, 3639100; 551800, 3640900; 549600, 3641000; 549300,
3635800; 550600, 3635800; 550600, 3639000; 551900, 3639000; 551900, 3641000; 549300, 3642300.
3635700; 550500, 3635700; 550500, 3638900; 551800, 3638900; 551800, (iii) Subunit 1C: lands bounded by the
3635500; 550400, 3635500; 550400, 3638800; 551900, 3638800; 551900, following UTM NAD27 coordinates
3635400; 550300, 3635400; 550300, 3638700; 552100, 3638700; 552100, (E,N): 553000, 3634400; 553000,
3635300; 550100, 3635300; 550100, 3638800; 552200, 3638800; 552200, 3634500; 552900, 3634500; 552900,
3635500; 550000, 3635500; 550000, 3638700; 552500, 3638700; 552500, 3634900; 552800, 3634900; 552800,
3636200; 549800, 3636200; 549800, 3638300; 552300, 3638300; 552300, 3635600; 553100, 3635600; 553100,
3636500; 549900, 3636500; 549900, 3638400; 552200, 3638400; 552200, 3635400; 553300, 3635400; 553300,
3636600; 549800, 3636600; 549800, 3638300; 551900, 3638300; 551900, 3635300; 553400, 3635300; 553400,
3636700; 549700, 3636700; 549700, 3638100; 551500, 3638100; 551500, 3635200; 553300, 3635200; 553300,
3637000; 549800, 3637000; 549800, 3637900; 551700, 3637900; 551700, 3635100; 553200, 3635100; 553200,
3637100; 549900, 3637100; 549900, 3637800; 551800, 3637800; 551800, 3635000; 553300, 3635000; 553300,
3637600; 550200, 3637600; 550200, 3637700; 552100, 3637700; 552100, 3634900; 553400, 3634900; 553400,
3637900; 550100, 3637900; 550100, 3637600; 552200, 3637600; 552200, 3634800; 553600, 3634800; 553600,
3638500; 550000, 3638500; 550000, 3637500; 552500, 3637500; 552500, 3634600; 553700, 3634600; 553700,
3638600; 549900, 3638600; 549900, 3637700; 552600, 3637700; 552600, 3634200; 553600, 3634200; 553600,
3638500; 549800, 3638500; 549800, 3637800; 553000, 3637800; 553000, 3634100; 553500, 3634100; 553500,
3638000; 549700, 3638000; 549700, 3638000; 553100, 3638000; 553100, 3634000; 553400, 3634000; 553400,
3637700; 549500, 3637700; 549500, 3638100; 553600, 3638100; 553600, 3633800; 553300, 3633800; 553300,
3638000; 549600, 3638000; 549600, 3638000; 553800, 3638000; 553800, 3633600; 553200, 3633600; 553200,
3638100; 549500, 3638100; 549500, 3637900; 553700, 3637900; 553700, 3633300; 553300, 3633300; 553300,
3638200; 549100, 3638200; 549100, 3637600; 553800, 3637600; 553800, 3633200; 553500, 3633200; 553500,
3638400; 549200, 3638400; 549200, 3637400; 553700, 3637400; 553700, 3633300; 553600, 3633300; 553600,
3638500; 549300, 3638500; 549300, 3637500; 553500, 3637500; 553500,
3633000; 553700, 3633000; 553700,
3638800; 549400, 3638800; 549400, 3637200; 553100, 3637200; 553100,
3632300; 553600, 3632300; 553600,
3638900; 549300, 3638900; 549300, 3637100; 553200, 3637100; 553200,
3639000; 549600, 3639000; 549600, 3632200; 553300, 3632200; 553300,
3636900; 552900, 3636900; 552900,
3638600; 549700, 3638600; 549700, 3632300; 553200, 3632300; 553200,
3637000; 552800, 3637000; 552800,
3638700; 549800, 3638700; 549800, 3633000; 553100, 3633000; 553100,
3637100; 552700, 3637100; 552700,
3638900; 549900, 3638900; 549900, 3633200; 553000, 3633200; 553000,
3637000; 552600, 3637000; 552600,
3639000; 549700, 3639000; 549700, 3633300; 552900, 3633300; 552900,
3637100; 552400, 3637100; 552400,
3639200; 549600, 3639200; 549600, 3632800; 552600, 3632800; 552600,
3637200; 552300, 3637200; 552300,
3639300; 549500, 3639300; 549500, 3633000; 552700, 3633000; 552700,
3637100; 552200, 3637100; 552200,
3639500; 549400, 3639500; 549400, 3637000; 552000, 3637000; 552000, 3633400; 552800, 3633400; 552800,
3639600; 549300, 3639600; 549300, 3637100; 551900, 3637100; 551900, 3633800; 552700, 3633800; 552700,
3640000; 549400, 3640000; 549400, 3637300; 551500, 3637300; 551500, 3634300; 552800, 3634300; 552800,
3640100; 549700, 3640100; 549700, 3637200; 551400, 3637200; 551400, 3634400; 553000, 3634400.
3640000; 549800, 3640000; 549800, 3637100; 551200, 3637100; 551200, (iv) Note: Map of Unit 1 (Map 2,
3640100; 549900, 3640100; 549900, 3636700; 551300, 3636700; 551300, Subunits 1A, 1B, and 1C) follows:
3640200; 549700, 3640200; 549700, 3636600; 551400, 3636600; 551400, BILLING CODE 4310–55–P
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(7) Unit 2: Palomar Mountain, San 512400, 3688400; 512300, 3688400; 3690300; 512700, 3690300; 512700,
Diego County, California. From USGS 512300, 3688500; 512000, 3688500; 3690400; 512600, 3690400; 512600,
1:24,000 quadrangle maps Boucher Hill 512000, 3688600; 511900, 3688600; 3690600; 512500, 3690600; 512500,
and Palomar Observatory. 511900, 3688500; 511700, 3688500; 3690700; 512400, 3690700; 512400,
(i) Subunit 2A: lands bounded by the 511700, 3688800; 511500, 3688800; 3690800; 512300, 3690800; 512300,
following UTM NAD27 coordinates (E, 511500, 3688900; 511400, 3688900; 3691100; 512500, 3691100; 512500,
N): 511300, 3689300; 511400, 3689300; 511400, 3689000; 511300, 3689000; 3691200; 513100, 3691200; 513100,
511400, 3689200; 511600, 3689200; 511300, 3689100; 511200, 3689100; 3691300; 513200, 3691300; 513200,
511600, 3689100; 511700, 3689100; 511200, 3689200; 511300, 3689200; 3691200; 513300, 3691200; 513300,
511700, 3689000; 511800, 3689000; 511300, 3689300. 3690900; 513000, 3690900; excluding
511800, 3688900; 512300, 3688900; (ii) Subunit 2B: lands bounded by the lands bounded by the following UTM
512300, 3688800; 512400, 3688800; following UTM NAD27 coordinates NAD27 coordinates (E,N): 509900,
512400, 3689000; 512900, 3689000; (E,N): 513000, 3690900; 513000, 3691000; 510100, 3691000; 510100,
512900, 3688900; 513200, 3688900; 3690800; 513200, 3690800; 513200, 3690900; 510000, 3690900; 510000,
513200, 3688800; 513400, 3688800; 3690600; 513100, 3690600; 513100, 3690800; 509900, 3690800; 509900,
513400, 3688700; 513700, 3688700; 3690400; 513200, 3690400; 513200, 3691000; and 512800, 3691000; 513000,
513700, 3688600; 513900, 3688600; 3690300; 513300, 3690300; 513300, 3691000; 513000, 3690900; 512800,
513900, 3688500; 514000, 3688500; 3690000; 513200, 3690000; 513200, 3690900; 512800, 3691000.
(iii) Subunit 2C: lands bounded by the
514000, 3688400; 514100, 3688400; 3689900; 513300, 3689900; 513300,
following UTM NAD27 coordinates (E,
514100, 3688300; 514400, 3688300; 3689600; 512900, 3689600; 512900,
N): 509200, 3689100; 509400, 3689100;
514400, 3688200; 514500, 3688200; 3689400; 512700, 3689400; 512700,
509400, 3689000; 509700, 3689000;
514500, 3688100; 515300, 3688100; 3689500; 512600, 3689500; 512600,
509700, 3688700; 509800, 3688700;
515300, 3688000; 515400, 3688000; 3689300; 512300, 3689300; 512300,
509800, 3688600; 510200, 3688600;
515400, 3687900; 515500, 3687900; 3689400; 512200, 3689400; 512200,
510200, 3688900; 510800, 3688900;
515500, 3687800; 515700, 3687800; 3689500; 512000, 3689500; 512000,
510800, 3688800; 511100, 3688800;
515700, 3687600; 515900, 3687600; 3689700; 511900, 3689700; 511900,
511100, 3688600; 511200, 3688600;
515900, 3687300; 515800, 3687300; 3689900; 511800, 3689900; 511800,
511200, 3688500; 511300, 3688500;
515800, 3687200; 515900, 3687200; 3690200; 511700, 3690200; 511700, 511300, 3688400; 511200, 3688400;
515900, 3687100; 516000, 3687100; 3690300; 511600, 3690300; 511600, 511200, 3688300; 511500, 3688300;
516000, 3687000; 516300, 3687000; 3690500; 511500, 3690500; 511500, 511500, 3688200; 511600, 3688200;
516300, 3686900; 516400, 3686900; 3690600; 511200, 3690600; 511200, 511600, 3687900; 511300, 3687900;
516400, 3686800; 516500, 3686800; 3690700; 511100, 3690700; 511100, 511300, 3687600; 511200, 3687600;
516500, 3686700; 516600, 3686700; 3690800; 510800, 3690800; 510800, 511200, 3687500; 511100, 3687500;
516600, 3686600; 517000, 3686600; 3690900; 510700, 3690900; 510700, 511100, 3687400; 511200, 3687400;
517000, 3686300; 517200, 3686300; 3690800; 510600, 3690800; 510600, 511200, 3687100; 511000, 3687100;
517200, 3686200; 517300, 3686200; 3690900; 510500, 3690900; 510500, 511000, 3687200; 510900, 3687200;
517300, 3686000; 517100, 3686000; 3691000; 510200, 3691000; 510200, 510900, 3687300; 510600, 3687300;
517100, 3685800; 517200, 3685800; 3690900; 510300, 3690900; 510300, 510600, 3687500; 510500, 3687500;
517200, 3685700; 516700, 3685700; 3690600; 510400, 3690600; 510400, 510500, 3687400; 510400, 3687400;
516700, 3685800; 516600, 3685800; 3690300; 510200, 3690300; 510200, 510400, 3687500; 510300, 3687500;
516600, 3686000; 516500, 3686000; 3690400; 509800, 3690400; 509800, 510300, 3687600; 510400, 3687600;
516500, 3686100; 516400, 3686100; 3690500; 509700, 3690500; 509700, 510400, 3687700; 510500, 3687700;
516400, 3686200; 516300, 3686200; 3690600; 509500, 3690600; 509500, 510500, 3687800; 510400, 3687800;
516300, 3686300; 516200, 3686300; 3690700; 509400, 3690700; 509400, 510400, 3687900; 510300, 3687900;
516200, 3686400; 516000, 3686400; 3690800; 509300, 3690800; 509300, 510300, 3687800; 510100, 3687800;
516000, 3686600; 515900, 3686600; 3690900; 509100, 3690900; 509100, 510100, 3687900; 509900, 3687900;
515900, 3686700; 515800, 3686700; 3691000; 509000, 3691000; 509000, 509900, 3688200; 509800, 3688200;
515800, 3686800; 515700, 3686800; 3691200; 509200, 3691200; 509200, 509800, 3688300; 509700, 3688300;
515700, 3686900; 515500, 3686900; 3691100; 509400, 3691100; 509400, 509700, 3688400; 509500, 3688400;
515500, 3687000; 515200, 3687000; 3691300; 509300, 3691300; 509300, 509500, 3688500; 509300, 3688500;
515200, 3687100; 514900, 3687100; 3691500; 509500, 3691500; 509500, 509300, 3688600; 509200, 3688600;
514900, 3687200; 514800, 3687200; 3691400; 510000, 3691400; 510000, 509200, 3689100.
514800, 3687300; 514500, 3687300; 3691500; 510100, 3691500; 510100, (iv) Subunit 2D: lands bounded by the
514500, 3687500; 514400, 3687500; 3691600; 510200, 3691600; 510200, following UTM NAD27 coordinates
514400, 3687600; 514300, 3687600; 3691700; 510700, 3691700; 510700, (E,N): 507700, 3690800; 508000,
514300, 3687700; 514200, 3687700; 3691600; 511000, 3691600; 511000, 3690800; 508000, 3690700; 508100,
514200, 3687800; 514100, 3687800; 3691500; 511100, 3691500; 511100, 3690700; 508100, 3690800; 508300,
514100, 3687900; 514000, 3687900; 3691400; 511400, 3691400; 511400, 3690800; 508300, 3690600; 508400,
514000, 3688000; 513700, 3688000; 3691200; 511600, 3691200; 511600, 3690600; 508400, 3690500; 508500,
513700, 3688100; 513500, 3688100; 3691100; 511700, 3691100; 511700, 3690500; 508500, 3690300; 508400,
513500, 3688000; 513400, 3688000; 3691000; 511900, 3691000; 511900, 3690300; 508400, 3690100; 508500,
513400, 3687700; 513300, 3687700; 3690900; 512000, 3690900; 512000, 3690100; 508500, 3690000; 508600,
513300, 3687400; 513200, 3687400; 3690700; 511800, 3690700; 511800, 3690000; 508600, 3689900; 508700,
jlentini on PROD1PC65 with RULES2

513200, 3687300; 513000, 3687300; 3690600; 511900, 3690600; 511900, 3689900; 508700, 3689700; 508800,
513000, 3687600; 512900, 3687600; 3690500; 512000, 3690500; 512000, 3689700; 508800, 3689600; 508900,
512900, 3688000; 512800, 3688000; 3690400; 512100, 3690400; 512100, 3689600; 508900, 3689100; 508700,
512800, 3688100; 512500, 3688100; 3690300; 512200, 3690300; 512200, 3689100; 508700, 3689200; 508600,
512500, 3688200; 512400, 3688200; 3690200; 512500, 3690200; 512500, 3689200; 508600, 3689300; 508400,

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74614 Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations

3689300; 508400, 3689400; 508200, 3690400; 507500, 3690300; 507400, (v) Note: Map of Unit 2 (Map 3,
3689400; 508200, 3689800; 508000, 3690300; 507400, 3690500; 507500, Subunits 2A, 2B, 2C, and 2D) follows:
3689800; 508000, 3690000; 507900, 3690500; 507500, 3690700; 507700, BILLING CODE 4310–55–P
3690000; 507900, 3690200; 507800, 3690700; 507700, 3690800.
3690200; 507800, 3690400; 507500,
jlentini on PROD1PC65 with RULES2

ER12DE06.003</GPH>

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Federal Register / Vol. 71, No. 238 / Tuesday, December 12, 2006 / Rules and Regulations 74615

* * * * * Dated: November 21, 2006.


David M. Verhey,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 06–9498 Filed 12–11–06; 8:45 am]
BILLING CODE 4310–55–C
jlentini on PROD1PC65 with RULES2

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