Daily Rules, Proposed Rules, and Notices of the Federal Government
We intend that any final action resulting from this proposal will be based on the best available scientific and commercial data and will be as accurate and as effective as possible. Therefore, we request data, comments, and new information from other concerned governmental agencies, the scientific community, Tribes, industry, or other interested parties concerning this proposed rule. The comments that will be most useful and likely to influence our decisions are those that are supported by data or peer-reviewed studies and those that include citations to, and analyses of, applicable laws and regulations. Please make your comments as specific as possible and explain the basis for them. In addition, please include sufficient information with your comments to allow us to authenticate any scientific or commercial data you reference or provide. In particular we seek comments concerning the following:
(1) Biological data regarding Magazine Mountain shagreen.
(2) Relevant data concerning any threats (or lack thereof) to Magazine Mountain shagreen, including but not limited to:
(a) Whether or not climate change is a threat to the species;
(b) What regional climate change models are available, and whether they are reliable and credible to use as step-down models for assessing the effect of climate change on the species and its habitat; and
(c) The extent of Federal and State protection and management that would be provided to Magazine Mountain shagreen as a delisted species.
(3) Additional information concerning the range, distribution, population size, and trends of Magazine Mountain shagreen, including the locations of any additional populations of this species.
(4) Current or planned activities within the geographic range of Magazine Mountain shagreen that may affect or benefit the species.
(5) The draft post-delisting monitoring plan.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531
Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record.
You may submit your comments and materials concerning the proposed rule by one of the methods listed in the
We will post your entire comment—including your personal identifying information—on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5)(E) of the Act provides for one or more public hearings on this proposal, if requested. We must receive requests for public hearings, in writing, at the address shown in the
On April 28, 1976, we published a proposed rule in the
Magazine Mountain shagreen (
Magazine Mountain shagreen is historically known from only the north slope of Magazine Mountain, Logan County, Arkansas (Pilsbry and Ferriss 1907, p. 545; Caldwell
The rocky slopes formed by the removal of softer, more easily eroded shale on the steep slopes cause the more resistant sandstone capping Magazine Mountain to break off and accumulate along the flanks. This provides the ideal habitat for Magazine Mountain shagreen (Cohoon and Vere 1988 in Caldwell
The geology and forest community of Magazine Mountain were summarized by Caldwell
Little information is available on land snail associations (
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species.
Recovery plans are not regulatory documents and are instead intended to establish goals for long-term conservation of listed species, define criteria that are designed to indicate when the threats facing a species have been removed or reduced to such an extent that the species may no longer need the protections of the Act, and provide guidance to our Federal, State, other governmental and non-governmental partners on methods to minimize threats to listed species. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.
The Magazine Mountain Shagreen Recovery Plan was approved by the Service on February 1, 1994 (Service 1994, 12 pp.). The recovery plan includes the following delisting criteria:
• Magazine Mountain shagreen will be considered recovered when long-term protection of its habitat is achieved; and
• It is determined from 10 years of data that the snail population is stable or increasing.
Long-term protection of habitat will be achieved when a memorandum of understanding (MOU) between the USFS and the Service is developed and implemented. The MOU must delineate measures protecting the species and its habitat, must be continuous in effect, and must require a minimum 2-year written notification prior to cancellation by either party. Criteria for determining what constitutes a stable population were to be determined through implementation of recovery actions (Service 1994, p. 6). Through implementation of these actions, the criteria chosen as the most appropriate for determining a stable population were persistence over time (shown by the number of Magazine Mountain shagreen individuals collected annually), annual catch per unit effort, and size, quality, and stability of habitat.
The recovery plan outlines six primary recovery actions to meet the recovery criteria described above and therefore address threats to the species. The six recovery actions for delisting Magazine Mountain shagreen have been met, as described below. Additionally, the level of protection currently afforded to the species and its habitat and the current status of threats are outlined in the Summary of Factors Affecting the Species section below.
To meet the recovery criterion to provide long-term habitat protection for Magazine Mountain shagreen, in 2005, the Service, USFS Ozark-St. Francis National Forest, and ADPT entered into a MOU that provides for long-term cooperation in the management and protection of the species and its habitat on Magazine Mountain. The MOU is a continuing agreement without a designated termination date. Additionally, the USFS designated Magazine Mountain as a Special Interest Area in the 2005 Revised Land Resource Management Plan (USFS 2005, p. 2-43). The Special Interest Area designation prohibits timber harvest, prescribed burning from leaf fall until the end of Magazine Mountain shagreen's reproductive period, application of aerial fire retardant, road construction, and recreational development on talus slopes. Therefore, through development and implementation of the MOU and Special Interest Area, we consider this action complete.
Historic surveys for Magazine Mountain shagreen prior to development of the 1994 Recovery Plan were limited to two surveys: (1) A 1903 collection of 114 live specimens and one dead specimen from the north and south slopes of Magazine Mountain (Pilsbry and Ferriss 1906, p. 545), and (2) a comprehensive status review by Caldwell (1986). The specimen collected in 1903 on the south slope has never been verified as Magazine Mountain shagreen by other researchers (Robison 1996, p. 3). Neither survey reported population estimates nor catch per unit effort. Therefore, it is not possible to make a comparative analysis of these collections to subsequent collections that reported number of live and dead snails per search time (see discussion below).
In 1996, two surveys were conducted for Magazine Mountain shagreen at each of the 10 sampling stations (Table 1; Robison 1996, pp. 17-20). Using VES, live Magazine Mountain shagreen were found at four sampling stations on May 24-27, 1996, and four stations on June 6-8, 1996 (Table 1; Robison 1996, p. 19). At all sites, dead Magazine Mountain shagreen shells were encountered before live individuals were discovered (Table 1). Magazine Mountain shagreen shell size was comparable between 1986 and 1996: Mean height/width ratio was 0.55 (range 0.52-0.59, N = 18; Caldwell 1986) and 0.56 (range 0.50-0.61, N = 25; Robison 1996, p. 38), respectively.
A third survey was conducted by Robison in May 1997 (Table 1; Robison 1997, pp. 16-17). Live individuals and dead shells were found at four and five sampling stations, respectively (Table 1). Magazine Mountain shagreen shell size (height/width ratio) in 1997 was within the range of shell size measurements collected during the 1986 (Caldwell 1986) and 1996 (Robison 1996, p. 38) surveys.
The USFS conducted Magazine Mountain shagreen population monitoring from 1998 through 2011 using the same sampling protocols and 10 stations established by Robison (1996). Station 10 was dropped from surveys in 2002, with Service approval, as no live or dead Magazine Mountain shagreen had been collected at this station during any previous surveys. One person hour (60 minutes) per station was spent searching for Magazine Mountain shagreen for all survey years (1998-2011, except during 2000, when no surveys were conducted, and during 2007, when three stations were not sampled). The number of live and dead Magazine Mountain shagreen collected at each station from 1998-2011 are shown in Table 2. The amount of time (minutes) that elapsed until the first encounter of live and dead Magazine Mountain shagreen at each station from 1998-2011 are shown in Table 3.
Overall, the number of live Magazine Mountain shagreens collected annually from 1996-2011 indicates the species is persisting over time. Annual fluctuation in numbers of live Magazine Mountain shagreens collected is likely attributable to climatic or temporal conditions or both (Tables 1, 2, and 3). For example, monitoring conducted in mid-June 2009 yielded zero live Magazine Mountain shagreen. However, June 2009 was considerably drier than May 2009 (95 mm versus 301 mm monthly rainfall, respectively; 5 versus 13 days with rainfall, respectively) and likely explains the lack of live specimens observed during the survey, because the snails are more active during times of high humidity and cooler temperatures (USFS 2009, pp. 1, 4-5).
The number of dead Magazine Mountain shagreens collected annually from 1996-2011 has shown greater annual fluctuation than the number of live individuals (Tables 1, 2, and 3). A closely related species, shagreen (
There are numerous problems with sampling populations of terrestrial snails, including their rupicolous nature (living or growing on or among rocks), which makes it difficult to locate individuals during surveys; effects of climate variables (
Population size, density, and age structure cannot be reliably estimated for a rupicolous species that spends most of the year deep within the talus slopes of Magazine Mountain (Caldwell
The first life-history and ecology information for Magazine Mountain shagreen, including information on habitat (geology and forest community), associations with other land snails, food habits, activity periods, breeding, egg deposition and hatching times, growth rates, and limiting factors, was provided in 2009 as a result of surveys conducted by Caldwell
Magazine Mountain shagreen prefers moist woods with some noteworthy differences in the tree and shrub communities present on the north and south slopes of Magazine Mountain (Caldwell
In 1986, Caldwell (1986) failed to find Magazine Mountain shagreen egg masses, but he suspected that eggs were laid deep within the talus (Service 1994, p. 3). Caldwell
No live Magazine Mountain shagreen individuals or egg masses were located from June through March during the 2-year survey. Therefore, Caldwell
As discussed above, Caldwell
Due to the rupicolous nature (living or growing on or among rocks) of Magazine Mountain shagreen, it is not possible to estimate population size or age structure. The size and quality of habitat available to Magazine Mountain shagreen was defined by Caldwell
Magazine Mountain shagreen surveys have been conducted in similar talus habitats near Magazine Mountain (Caldwell
Because surveys of potential habitat near Magazine Mountain have been conducted, we consider this action complete.
In conjunction with this proposed rule, we have developed a draft post-delisting monitoring plan (see Post-Delisting Monitoring section below) that includes information on distribution, habitat requirements, and life history of Magazine Mountain shagreen and a monitoring protocol provided by Caldwell
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing, reclassifying, or removing species from the Federal Lists of Endangered and Threatened Wildlife and Plants. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider these same five factors in reclassifying or delisting a species. We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial information indicates that the species is neither endangered nor threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error.
Under section 3 of the Act, a species is “endangered” if it is in danger of extinction throughout all or a “significant portion of its range” and is “threatened” if it is likely to become endangered within the foreseeable future throughout all or a “significant portion of its range.” The word “range” refers to the range in which the species currently exists, and the word “significant” refers to the value of that portion of the range being considered to the conservation of the species. The “foreseeable future” is the period of time over which events or effects reasonably can or should be anticipated, or trends extrapolated. A recovered species is one that no longer meets the Act's definition of endangered or threatened. Determining whether or not a species is recovered requires consideration of the same five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened, the analysis for a delisting due to recovery must include an evaluation of the threats that existed at the time of listing, the threats currently facing the species, and the threats that are reasonably likely to affect the species in the foreseeable future following the downlisting or delisting and the removal of the Act's protections.
The following analysis examines all five factors currently affecting or that are likely to affect Magazine Mountain shagreen within the foreseeable future. In making this final determination, we have considered all scientific and commercial information available, which includes monitoring data collected from 1996 to 2011 (Robison 1996, USFS 2009) and life-history and habitat information (Caldwell
The 1989 final rule to list Magazine Mountain shagreen as threatened (54 FR 15206) identified the following habitat threats: Possible negative effects from USFS use of the land, a military proposal that would bring troop training exercises and heavy equipment into the species' habitat, and the development of a new State park and lodge on Magazine Mountain.
The 1989 final listing rule cited the species' restricted range as its greatest vulnerability to land use change or activity that would modify the talus slopes inhabited by the species. A request from the ADPT for a special use permit from the USFS to develop a State park and the associated construction of buildings, roads, trails, pipelines, and recreational activities had the potential to adversely affect Magazine Mountain shagreen and its habitat if talus slopes were disturbed. In 1993, several agencies, including the Service, contributed to an environmental impact statement (EIS) for the development and construction of a State park on the summit of Magazine Mountain (Service 1994, p. 5). Of the five assessed alternatives, the selected alternative included construction of facilities on the south slopes, improvement of existing camping and picnic facilities on the north slopes, additional hiking trails, and a reconstructed homestead. However, it was determined that, with
Since the final listing rule was published, the USFS Ozark-St. Francis National Forests have designated the north and west slopes of Magazine Mountain above the 1,600 ft (487.7 m) contour interval as a Special Interest Area. This designation encompasses all of the known range of Magazine Mountain shagreen plus a 600-ft (182.9-m) contour interval buffer. The Special Interest Area designation also protects the area from land management practices that might be detrimental to Magazine Mountain shagreen and its habitat. We expect that the delisting of Magazine Mountain shagreen would not weaken USFS's commitment to the conservation of the Special Interest Area. In 2005, the Service, USFS Ozark-St. Francis National Forests, and ADPT entered into a MOU that provides for long-term cooperation in the management and protection of Magazine Mountain shagreen and its habitat on Magazine Mountain. The MOU is a continuing agreement without a designated termination date. Therefore, USFS land use activities no longer pose a threat to the survival of Magazine Mountain shagreen.
Wildfires have been cited as the single greatest threat to Magazine Mountain shagreen (Caldwell
The U.S. Army is no longer considering the use of Magazine Mountain for military training exercises, an activity that was considered an imminent threat to Magazine Mountain shagreen when it was listed. The U.S. Army has no plans to conduct military training exercises on Magazine Mountain in the foreseeable future and withdrew its previous consideration after Magazine Mountain shagreen was listed as threatened in 1989 (Service 1994, p. 5). Therefore, potential U.S. Army military training operations no longer pose a threat to the survival of Magazine Mountain shagreen.
The final rule to list Magazine Mountain shagreen identified overutilization as a potential threat. A knowledgeable collector could adversely affect the population by removing large numbers of individuals. However, to the Service's knowledge, no Magazine Mountain shagreen individuals have been removed from the population for commercial, recreational, scientific, or educational purposes since the species was listed in 1989, except by Caldwell
The 1989 listing rule for Magazine Mountain shagreen (54 FR 15206) did not list any threats to the species from disease or predation. The best available science does not provide any evidence that either of these factors has become a threat to this species since it was listed in 1989, nor will either become a threat in the foreseeable future. Therefore, we find that disease and predation are not threats to Magazine Mountain shagreen.
The 1989 final rule to list Magazine Mountain shagreen (54 FR 15206) indicated that no protections other than the USFS Special Interest Area existed to protect Magazine Mountain shagreen and its habitat. The entire range of Magazine Mountain shagreen is now on USFS or ADPT property. Collection of animals is prohibited in the State park, and there is no indication that this prohibition is not effective in preventing collection of this species. In 2005, the Service, USFS Ozark-St. Francis National Forest, and ADPT entered into a MOU that provides for long-term cooperation in the management and protection of Magazine Mountain shagreen and its habitat on Magazine Mountain. The MOU is a continuing agreement without a designated termination date.
The 1989 final listing rule for Magazine Mountain shagreen (54 FR 15206) identified the restricted range (Magazine Mountain), temperature, and moisture as potential stressors to Magazine Mountain shagreen. Magazine Mountain shagreen inhabits 27 talus habitats on the north and west slopes of Magazine Mountain, Logan County, Arkansas. Populations occur in the vegetated and leaf litter covered portion of talus rock between 2,200 ft (670.6 m) and 2,600 ft (792.5 m). However, as a result of habitat protection provided by the USFS and ADPT (see analysis under Factors A and D above), vulnerability associated with restricted range is no longer a threat.
The Intergovernmental Panel on Climate Change (IPCC) concluded that evidence of warming of the climate system is unequivocal (IPCC 2007a, p. 30). Numerous long-term climate changes have been observed, including changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, wind patterns and aspects of extreme weather including droughts, heavy precipitation, heat waves, and the intensity of tropical cyclones (IPCC 2007b, p. 7). While continued change is certain, the magnitude and rate of change is unknown in many cases. Species that are dependent on specialized habitat types, limited in distribution, or that have become restricted to the extreme periphery of their range will be most susceptible to the effects of climate change.
Estimates of the effects of climate change using available climate models lack the geographic precision needed to predict the magnitude of effects at a scale small enough to discretely apply to the range of Magazine Mountain shagreen. However, data on recent trends and predicted changes for the Southeast United States (Karl
Rates of warming are predicted to more than double in comparison to what the Southeast has experienced since 1975, with the greatest increases projected for summer months. Depending on the emissions scenario used for modeling change, average temperatures are expected to increase by 4.5 °F to 9 °F (2.5 °C to 5 °C) by the 2080s (Karl
Since Magazine Mountain shagreen prefers cool, moist microhabitats, prolonged drought and concomitant warming of temperatures could adversely affect the species. In particular, nesting sites and egg masses may be affected (Caldwell
We are not aware of any climate change information specific to the habits or habitat (i.e., talus slopes) of the Magazine Mountain shagreen that would indicate what potential effects climate change and increasing temperatures may have on this species. Therefore, based on the best available information, we do not have any evidence to determine or conclude that climate change is a threat to Magazine Mountain shagreen now or within the foreseeable future.
Under section 3 of the Act, a species is endangered if it is “in danger of extinction in a significant portion of its range” and threatened if it is “likely to become endangered in the foreseeable future throughout all or a significant portion of its range.” We have carefully assessed the best scientific and commercial information available regarding the threats faced by Magazine Mountain shagreen in developing this proposed rule. Based on the analysis above and given the reduction in threats, Magazine Mountain shagreen does not currently meet the Act's definition of endangered in that it is not in danger of extinction throughout all of its range, or the definition of threatened in that it is not likely to become endangered in the foreseeable future throughout all of its range.
Having determined that Magazine Mountain shagreen no longer meets the definition of endangered or threatened throughout its range, we must next consider whether there are any significant portions of its range that remain in danger of extinction or likely to become endangered. The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The definition of “species” is also relevant to this discussion. The Act defines the term “species” as follows: “The term `species' includes any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” The phrase “significant portion of its range” (SPR) is not defined by the statute, and we have never addressed in our regulations: (1) The consequences of a determination that a species is either endangered or likely to become so throughout a significant portion of its range, but not throughout all of its range; or (2) what qualifies a portion of a range as “significant.”
Two recent district court decisions have addressed whether the SPR language allows the Service to list or protect less than all members of a
Consistent with that interpretation, and for the purposes of this rule, we interpret the phrase “significant portion of its range” in the Act's definitions of “endangered species” and “threatened species” to provide an independent basis for listing; thus there are two situations (or factual bases) under which a species would qualify for listing a species in its entirety: A species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an “endangered species.” The same analysis applies to “threatened species.” Therefore, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species will be listed as endangered or threatened, respectively, and the Act's protections will be applied across the species' entire range.
We conclude, for the purposes of this rule, that interpreting the SPR phrase as providing an independent basis for listing or for changes in listing status is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (i.e., prior to the 2007 Solicitor's Opinion), as no consistent, long-term agency practice has been established; and it is consistent with the judicial opinions that have most closely examined this issue. Having concluded that the phrase “significant portion of its range” provides an independent basis for listing and protecting the entire species, we next turn to the meaning of “significant” to determine the threshold for when such an independent basis for listing exists.
Although there are potentially many ways to determine whether a portion of a species' range is “significant,” we conclude, for the purposes of this rule, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. Thus, for the purposes of this proposed rule and finding, a portion of the range of a species is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.
We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation.
For the purposes of this rule, we determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether,
We recognize that this definition of “significant” establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for “significant” that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered “significant” even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species' range can be said to contribute some increment to a species' viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: Listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for “significant” that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered “significant” only if threats in that portion result in the entire species' being currently endangered or threatened. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in
The definition of “significant” used in this rule carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions will be imposed or resources expended that do not
The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant
Applying the process described above in considering delisting this snail, we evaluated the range of Magazine Mountain shagreen