[Federal Register: June 2, 2008 (Volume 73, Number 106)]
[Proposed Rules]
[Page 31418-31424]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn08-22]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R2-ES-2008-0070; 1111 FY07 MO-B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To List the Cactus Ferruginous Pygmy-Owl (Glaucidium
ridgwayi cactorum) as Threatened or Endangered With Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status
review.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the cactus ferruginous pygmy-owl
(Glaucidium ridgwayi cactorum) (pygmy-owl) as threatened or endangered
under the Endangered Species Act of 1973, as amended (Act). We find
that the petition presents substantial scientific or commercial
information indicating that listing the pygmy-owl may be warranted.
Therefore, with the publication of this notice, we are initiating a
status review of the species, and we will issue a 12-month finding on
our determination as to whether the petitioned action is warranted. To
ensure that the status review of the pygmy-owl is comprehensive, we are
soliciting information and data regarding this species. We will make a
determination on critical habitat for this species if and when we
initiate a listing action.
DATES: We made the finding announced in this document on June 2, 2008.
To allow us adequate time to conduct this review, we request that
information be submitted on or before August 1, 2008.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand delivery: Public Comments Processing,
Attn: [FWS-R2-ES-2008-0070]; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all submissions on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Solicited
section below for more information).
FOR FURTHER INFORMATION CONTACT: Steven Spangle, Field Supervisor,
Arizona Ecological Services Office, U.S. Fish and Wildlife Service,
2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; telephone 602/
242-0210; facsimile 602/242-2513. If you use a telecommunications
device for the deaf (TDD), call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that a petition presents substantial
information to indicate that listing a species may be warranted, we are
required to promptly commence a review of the status of the species. To
ensure that the status review is complete and based on the best
available scientific and commercial information, we are soliciting
information on the status of the pygmy-owl. We request any additional
information from the public, other concerned governmental agencies,
Native American Tribes, the scientific community, industry, or any
other interested parties concerning the status of the pygmy-owl. We are
seeking information regarding the species' historical and current
status and distribution, its biology and ecology, ongoing conservation
measures for the species and its habitat; and threats to the species or
its habitat. Specifically,
[[Page 31419]]
we are requesting input related to the genetics and taxonomy of
ferruginous pygmy-owls, and the status, distribution, and threats to
the pygmy-owl in Mexico.
If we determine that listing the pygmy-owl is warranted, it is our
intent to propose critical habitat to the maximum extent prudent and
determinable at the time we propose to list the species. Therefore,
with regard to areas within the geographical range currently occupied
by the pygmy-owl, we also request data and information on what may
constitute physical or biological features essential to the
conservation of the species, where these features are currently found,
and whether any of these features may require special management
considerations or protection. In addition, we request data and
information regarding whether there are areas outside the geographical
area occupied by the species that are essential to the conservation of
the species. Please provide specific information as to what, if any,
critical habitat you think we should propose for designation if the
species is proposed for listing, and why such habitat meets the
requirements of the Act.
We will base our 12-month finding on a review of the best
scientific and commercial information available, including all
information received during the public comment period. Please note that
submissions merely stating support 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 directs that determinations as to whether any species is a
threatened or endangered species shall be made ``solely on the basis of
the best scientific and commercial data available.'' At the conclusion
of the status review, we will issue the 12-month finding on the
petition, as provided in section 4(b)(3)(B) of the Act.
You may submit your information concerning this status review by
one of the methods listed in the ADDRESSES section. We will not
consider submissions sent by e-mail or fax or to an address not listed
in the ADDRESSES section.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this personal identifying
information from public review. However, we cannot guarantee that we
will be able to do so. We will post all hardcopy submissions on http://
www.regulations.gov.
Information and materials we receive will be available for public
inspection on http://www.regulations.gov, or by appointment, during
normal business hours, at the U.S. Fish and Wildlife Service, Arizona
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
Background
Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information indicating that a
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files at
the time we make the determination. To the maximum extent practicable,
we are to make the finding within 90 days of our receipt of the
petition, and publish our notice of this finding promptly in the
Federal Register.
Our standard for ``substantial information,'' as defined in the
Code of Federal Regulations at 50 CFR 424.14(b), with regards to a 90-
day petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted.'' If we find that substantial information was
presented, we are required to promptly commence a status review of the
species.
We base this finding on information provided by the petitioner that
we determined to be reliable after reviewing sources referenced in the
petition and available in our files. We evaluated that information in
accordance with 50 CFR 424.14(b). Our process for making this 90-day
finding under section 4(b)(3)(A) of the Act is limited to a
determination of whether the information in the petition meets the
``substantial information'' threshold.
On March 20, 2007, we received a formal petition dated March 15,
2007, from the Center for Biological Diversity and Defenders of
Wildlife requesting that we list the pygmy-owl as a threatened or
endangered species under the Act (CBD and DOW 2007). Additionally, the
petition requested the designation of critical habitat concurrent with
listing. The petition clearly identified itself as a petition and
included the identification information, as required in 50 CFR
424.14(a). We sent a letter to the petitioners dated June 25, 2007,
stating that we were proceeding with a review of the petition.
The petitioners petitioned us on three potentially listable
entities of the pygmy-owl: (1) The Arizona distinct population segment
(DPS) of the pygmy-owl; (2) the Sonoran Desert DPS of the pygmy-owl;
and (3) the western subspecies of the pygmy-owl, which they identified
as Glaucidium ridgwayi cactorum. As an immediate action, the
petitioners requested that we promulgate an emergency listing rule for
the pygmy-owl. In our June 25, 2007, response letter to the
petitioners, we stated our determination that emergency listing was not
warranted for the pygmy-owl and that the designation of critical
habitat would be considered if listing one of the proposed entities of
the pygmy-owl was found to be warranted.
Previous Federal Actions
On May 26, 1992, a coalition of environmental organizations (Galvin
et al. 1992) petitioned us to list the entire cactus ferruginous pygmy-
owl subspecies as endangered under the Act. We published a finding that
the petition presented substantial scientific or commercial information
indicating that listing of the pygmy-owl may be warranted and commenced
a status review of the subspecies (58 FR 13045, March 9, 1993). As a
result of information collected and evaluated during the status review,
including information collected during a public comment period, we
proposed to list the pygmy-owl as endangered with critical habitat in
Arizona and threatened in Texas (59 FR 63975, December 12, 1994). After
a review of all comments received in response to the proposed rule, we
published a final rule listing the Arizona DPS of the pygmy-owl as
endangered (62 FR 10730, March 10, 1997). In that final rule, we
determined that listing in Texas was not warranted and that critical
habitat designation for the Arizona population was not prudent.
In September 1998, we formed the Cactus Ferruginous Pygmy-owl
Recovery Team, comprised of biologists (pygmy-owl experts and raptor
ecologists) and representatives from affected and interested parties
(e.g., Federal and State agencies, local governments, the Tohono
O'odham Nation, and private groups) to develop a pygmy-owl recovery
plan.
On December 30, 1998, in response to an October 31, 1997, lawsuit
filed in the District Court of Arizona by the Southwest Center for
Biological Diversity, we proposed to designate critical habitat in
Arizona for the
[[Page 31420]]
pygmy-owl (63 FR 71820). On April 15, 1999, we released a draft
economic analysis of the proposed critical habitat designation and
reopened a public comment period for 30 days (64 FR 18596). On July 12,
1999, we published our final critical habitat determination (64 FR
37419), essentially designating the same areas as were proposed.
On January 9, 2001, a coalition of plaintiffs filed a lawsuit with
the District Court of Arizona challenging the validity of the Service's
listing of the Arizona DPS of the pygmy-owl as an endangered species
and the designation of its critical habitat. On September 21, 2001, the
District Court upheld the listing of the pygmy-owl in Arizona but, at
our request, and without otherwise ruling on the critical habitat
issues, remanded the designation of critical habitat for preparation of
a new economic analysis and other effects of the designation (Natl.
Ass'n of Home Builders v. Norton, No. Civ.-00-0903-PHX-SRB). The
District Court vacated the critical habitat designation during this
remand. Subsequently, the District Court ordered that we submit a new
proposed critical habitat rule to the Federal Register on or before
November 15, 2002. On November 27, 2002, we published the proposed rule
to designate critical habitat for the pygmy-owl (67 FR 71032) and
opened a public comment period on the proposed rule and the draft
economic analysis until February 25, 2003. We extended the comment
period on February 25, 2003, until April 25, 2003 (68 FR 8730). We then
reopened the comment period on April 28, 2003, until June 27, 2003 (68
FR 22353). Due to a lack of funding, work on the final rule to
designate critical habitat for the pygmy-owl was suspended in April
2003.
On January 9, 2003, we published in the Federal Register (68 FR
1189) a notice of availability and opening of a public comment period
(until April 9, 2003) for the draft pygmy-owl recovery plan. On April
30, 2003 (68 FR 23158), we reopened the public comment period on the
recovery plan until June 30, 2003.
The plaintiffs appealed the District Court's ruling on the listing
of the pygmy-owl as a distinct population segment in Arizona. On August
19, 2003, the Ninth Circuit Court of Appeals upheld the Service's
determination that the Arizona pygmy-owl population was discrete, but
found that the Service did not articulate a rational basis for finding
that the Arizona pygmy-owl population was significant to its taxon
(Natl. Ass'n of Home Builders v. Norton, 340 F.3d. at 852). The Ninth
Circuit reversed the judgment of the District Court and remanded the
case to the District Court for further proceedings consistent with the
Ninth Circuit's opinion.
On October 1, 2003, the intervenor-appellees (CBD and DOW)
petitioned for a rehearing from the Ninth Circuit Court. That request
was denied. On November 12, 2003, the plaintiffs filed a motion with
the District Court seeking removal of the Arizona DPS listing based on
the Ninth Circuit Court's ruling. On December 10, 2003, the Service
filed a response agreeing that removal of the listing was appropriate.
The response also indicated that the Service was undertaking an
internal review of the current status of the pygmy-owl in the United
States and Mexico and was engaged in ongoing surveys of the species.
The interveners in the case opposed the plaintiffs' motion to remove
the Arizona DPS listing and disputed the contention that the listing
rule should be removed.
On June 25, 2004, the District Court of Arizona (CV 00-0903 PHX-
SRB) remanded the listing rule to the Service for reconsideration
consistent with the Ninth Circuit's ruling and ordered that the pygmy-
owl listing should remain in place for the duration of the Service's
deliberations. On January 31, 2005, pursuant to the District Court's
order, we filed a status report with the District Court regarding our
reconsideration of the listing rule for the pygmy-owl. As a result of
our reconsideration, we published a proposed rule on August 3, 2005, to
delist the pygmy-owl (70 FR 44547). On April 14, 2006, following public
comment, we published a final rule removing the pygmy-owl from the
Federal List of Endangered and Threatened Wildlife (71 FR 19452).
The interveners in the above lawsuit filed a request with the
Arizona District Court for a temporary restraining order (denied by the
District Court in May 2006) and a preliminary injunction to halt the
delisting of the pygmy-owl and, concurrently, a lawsuit arguing that
the delisting of the pygmy-owl was arbitrary and capricious. The
Arizona District Court heard the case in October 2006 and issued an
opinion on March 9, 2007, upholding the Federal delisting of the pygmy-
owl and denying the request for a preliminary injunction. Defenders of
Wildlife and the Center for Biological Diversity have appealed the
District Court's decision, and the case is currently pending in the
Ninth Circuit Court of Appeals (9th Cir. No. 07-15854).
Species Information
The pygmy-owl is in the order Strigiformes and the family
Strigidae. It is a small bird, approximately 17 centimeters (6.75
inches) long. In Arizona, male pygmy-owls average 58 grams (g) (2.0
ounces (oz)) and females average 70 g (2.4 oz) (AGFD 2007, p. 2). The
pygmy-owl is reddish brown overall, with a cream-colored belly streaked
with reddish brown. Color may vary, with some individuals being more
grayish brown.
One of the primary issues presented by the petitioners is related
to the taxonomy of the pygmy-owl. Until recently, we considered the
cactus ferruginous pygmy-owl to occur from lowland central Arizona
south through western Mexico to the States of Colima and Michoacan, and
from southern Texas south through the Mexican States of Tamaulipas and
Nuevo Leon (Proudfoot and Johnson 2000, p. 4). The petitioners request
a revised taxonomic consideration for the cactus ferruginous pygmy-owl
based on Proudfoot et al. (2006a, p. 9; 2006b, p. 946) and K[ouml]nig
et al. (1999, pp. 160, 370-373), classifying it as Glaucidium ridgwayi
cactorum. The revised consideration would include recognition of two
subspecies in Mexico and the U.S., G. r. cactorum in western Mexico and
Arizona and G. r. ridgwayi in eastern Mexico and Texas. We find this
request to be reasonable, as Proudfoot and Johnson (2000, p. 4)
indicate that a thorough taxonomic revision for the ferruginous pygmy-
owl is needed. Other authors have also proposed the ``ridgwayi''
classification of the subspecies of pygmy-owl in question (Heidrich et
al. 1995, pp. 37-39; Navarro-Sig[uuml]enza and Peterson 2004, p. 5).
The literature suggests that the taxonomy of the pygmy-owl has been
inconsistent and ever-changing (Coues 1872, p. 370, Bendire 1888, p.
366; Fischer 1893, pp. 199-200; Gilman 1901, p. 145, Howell 1916, p.
211). The use of genetics (Proudfoot et al. 2006a; Proudfoot et al.
2006b), morphology, and vocalizations (K[ouml]nig et al. 1999, pp. 160,
370-373; Heidrich et al. 1995, pp. 25-27) to clarify pygmy-owl taxonomy
may provide the basis for taxonomic revision. The petitioners report
that recent studies suggest that North and Central American ferruginous
pygmy-owls fall into the species ridgwayi, and South American
ferruginous pygmy-owls fall into the species brasilianum (Proudfoot
2006a, p. 9; K[ouml]nig et al. 1999). Proudfoot (2006a, p. 9) further
divides ridgwayi into two subspecies, one found in Arizona, Sonora, and
Sinaloa (Glaucidium ridgwayi cactorum), and one found in Texas,
Tamaulipas, and regions of South-Central Mexico (Glaucidium ridgwayi
ridgwayi). This
[[Page 31421]]
finding addresses the petitioned subspecies G. r. cactorum, which the
petitioners referred to as the cactus ferruginous pygmy-owl.
Some have suggested that the proposed taxonomic change should not
be accepted until it is acknowledged by the American Ornithologist's
Union (AOU) (Johnson and Carothers 2007, pp. 16-17). While the AOU
checklist undergoes vigorous review, it presently does not list entries
at the subspecies level and does not provide the most current
information related to taxonomic classifications at this level (AOU
2007). The Service is not restricted to existing taxonomic checklists
in determining a listable entity. Rather, the Service is required to
use the best available scientific and commercial information. The
information presented by Proudfoot (2006a, 2006b) is found in peer-
reviewed professional journal articles, and the work of K[ouml]nig et
al. (1999) was published by a reputable institution. We judge these
sources to be reliable with regard to the information they present.
Information in our files supports the supposition of the petitioners
that Proudfoot (2006a, 2006b), K[ouml]nig et al. (1999), and Heidrich
et al. (1995) represent the best available scientific information
regarding the taxonomy of the pygmy-owl. We find that the petitioners
have provided reliable and substantial scientific information that a
taxonomic revision may be warranted.
Historically (i.e., late 1800s and early 1900s), pygmy-owls
occupied areas of south-central Arizona--from New River, about 56
kilometers (km) (35 miles (mi)) north of Phoenix, south to the U.S./
Mexico border, west to Agua Caliente near Gila Bend and Cabeza Prieta
Tanks, and east to Tucson, and, rarely, the San Pedro River (Bent 1938,
pp. 435-438; Monson and Phillips 1981, pp. 71-72; Johnson et al. 2003,
pp. 390-391). The geographic area historically occupied by pygmy-owls
in Arizona includes portions of Gila, Pima, Pinal, Maricopa, Graham,
Santa Cruz, Cochise, Greenlee, and Yuma Counties. No pygmy-owls have
been recorded in New Mexico (Hubbard 1978, p. 6) or from the lower
Colorado River valley of both the United States (Rosenberg et al. 1991,
pp. 206-210) and Mexico (van Rossem 1945, p. 111).
Currently, the known locations of pygmy-owls in Arizona are
restricted to two counties, Pima and Pinal (USFWS 2007). As the
petition contends (CBD and DOW 2007, p. 15) and our records support
(Abbate et al. 1996, pp. 8-12; 1999, pp. 14-17; 2000, pp. 15-16;
Johnson et al. 2003, p. 390), the current distribution of pygmy-owls
within Arizona is much reduced when compared to its historical
distribution. Recent data indicate that there are fewer than 50 adult
pygmy-owls and fewer than 10 nest sites in Arizona in any given year
(Abbate et al. 2000, pp. 15-16).
The petitioners provide information indicating that pygmy-owl
populations in Arizona and Sonora, Mexico are declining (CBD and DOW
2007, pp. 15-17). The information in our files is consistent with the
population numbers reported in the petition. We judge the information
regarding a decline in pygmy-owl numbers in northern Sonora (Flesch and
Steidl 2006) to be substantial and reliable.
In Arizona, pygmy-owls rarely occur below 300 meters (m) (1,000
feet (ft)) or above 1,220 m (4,000 ft) (Proudfoot and Johnson 2000, p.
5), except perhaps during dispersal (AGFD 2007, p. 2). Historically,
pygmy-owls were documented in cottonwood (Populus fremontii)-mesquite
(Prosopis spp.) forest and mesquite woodland along the Gila and Salt
rivers and major tributaries (Gilman 1909, pp. 148-149; Johnson et al.
1987). Currently, most pygmy-owls in southern Arizona are found in
Sonoran desertscrub communities as described by Brown (1982, pp. 181-
221). These communities include dense thickets bordering dry desert
washes consisting of palo verde (Cercidium spp.), ironwood (Olneya
tesota), mesquite, acacia (Acacia spp.), and saguaro (Carnegiea
gigantea) (Johnson and Haight 1985, p. 145; Millsap and Johnson 1988,
p. 138). In the 1990s and early 2000s, pygmy-owls were also found in
suburban areas containing exotic landscaping supported by irrigation
(Abbate et al. 1996, p. 26). Pygmy-owls have also been located in
semidesert and Sonoran savanna grasslands with washes (e.g., the Altar
Valley) (Abbate et al. 2000, p. 27, Flesch 2003, pp. 153-156). Dominant
tree species in riparian areas include mesquite, ash (Fraxinus
velutina), and hackberry (Celtis spp.).
In Mexico, the pygmy-owl occurs from sea level to 1,219 m (4,000
ft) (Friedmann et al. 1950, p. 145). It is a resident of primarily
giant cactus associations, in western Sonora (van Rossem 1945, p. 111).
It also occurs in desertscrub, tropical thornscrub, and tropical
deciduous forest (Russell and Monson 1998, p. 141). The pygmy-owl is
absent from tropical deciduous forest and higher vegetation zones in
west Mexico, where it is replaced by G. minutissimum and G. gnoma
(Schaldach 1963, p. 40). Flesch (2003, p. 37) reported that pygmy-owls
occurred in the greatest numbers and highest frequencies within the
Arizona Upland subdivision of Sonoran desertscrub in northern Sonora,
Mexico. Densities were greatest in the Plains of Sonora and lowest in
Sinaloan Thornscrub. Density of owls was relatively high in the Central
Gulf Coast, but frequency of occurrence was low. Semidesert grasslands
were second only to Arizona Upland for frequency of occurrence of
pygmy-owls in Sonora, Mexico.
Threats Analysis
Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations at 50 CFR part 424, set forth the procedures for adding
species to the Federal List of Endangered and Threatened Wildlife and
Plants. A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1) of the Act: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
In making this 90-day finding, we evaluated whether information on
threats to the pygmy-owl, as presented in the petition and other
information available in our files at the time of the petition review,
is substantial, thereby indicating that the petitioned action may be
warranted. Our evaluation of this information is presented below.
A. Present or Threatened Destruction, Modification, or Curtailment of
the Species' Habitat or Range
The petitioners claim that numerous threats to pygmy-owl habitat
occur in both Arizona and Sonora, Mexico, and that these threats have
resulted in the loss and fragmentation of pygmy-owl habitat (CBD and
DOW 2007, p. 18). As a result, pygmy-owls have been lost from portions
of their range and are declining in abundance in the United States and
Mexico (Phillips et al. 1964, p. 52; Johnson et al. 1979, p. 51; Hunter
1988, pp. 3-6; Millsap and Johnson 1988, pp. 137-139; Johnson et al.
2003, pp. 393-398; Flesch and Steidl 2006, pp. 869-870). The
petitioners (CBD and DOW 2007, pp. 18-24) specifically identified
riparian forest destruction, urban sprawl, woodcutting, vegetation
clearing for agriculture, livestock grazing, border issues, and exotic
plant species invasions as threats to the pygmy-owl (Ohmart 1994, pp.
276-281; Flesch 2003, p. 134; Abouhaider 1989, pp. 58-59; Burquez and
Martinez-Yrizar
[[Page 31422]]
1997, pp. 383-388; Burquez-Montijo et al. 2002, pp. 134-138; Flesch and
Steidl 2006, pp. 869-870).
The petitioners indicate that widespread destruction of riparian
woodlands in Arizona and Sonora has occurred within the range of the
pygmy-owl and has led to a subsequent decline in pygmy-owl abundance
(CBD and DOW 2007, p. 19). They cite papers, also found in our files,
estimating that between 85 and 90 percent of riparian bottomland
forests in the southwestern United States have been modified or lost,
and that these alterations and losses are attributable to woodcutting,
urban and agricultural encroachment, water diversion and impoundment,
channelization, groundwater pumping, livestock overgrazing, and
hydrologic changes resulting from various land-use practices (Carothers
1977, pp. 2-3; Kusler 1985, p. 6; Jahrsdoerfer and Leslie 1988, pp. 17-
36; USGAO 1988, p. 8; Szaro 1989, pp. 73-81; State of Arizona 1990, pp.
1-5; Bahre 1991, pp. 119-151). Information provided by the petitioners
was found to be reliable and corroborated by information found in our
files. Information from our files indicates that threats to riparian
communities are also evident in Mexico. Deloya (1985, pp. 11-12)
expressed concern over the declining trend of riparian ecosystems there
and a lack of strategy to reverse it.
The petitioners state that continued population growth in both
Arizona and Mexico will continue to contribute to the loss of important
riparian resources. They cite specific examples of the San Pedro River
in Arizona and the Rio Magdelena in Mexico, including Flesch and Steidl
(2006b), who stated that the Rio Magdalena watershed had the largest
human population of the watersheds they studied, which likely reduces
habitat quality for the pygmy-owl (CBD and DOW 2007, p. 20).
The petition cites urban sprawl as a significant threat to pygmy-
owls in both Arizona and Mexico (USFWS 2005, Burquez and Martinez-
Yrizar 1997) (CBD and DOW, p. 20). Impacts to pygmy-owls and pygmy-owl
habitat from urbanization are related to housing development, lighting,
roads, traffic, predation by domestic pets, and the alteration of
hydrologic patterns supporting important pygmy-owl habitat elements.
Petitioners point out that low-density urban development may provide
some benefit to pygmy-owl habitat elements and that pygmy-owls have
occurred in these types of areas in the past. However, most recent
urbanization in Arizona cannot be categorized as low density (AZ Daily
Star 2006, p. B-1); therefore, it is usually not beneficial to the
pygmy-owl. In addition, the petitioners point out a concern that if the
beneficial habitat elements in low-density developments attract pygmy-
owls, these areas may act as population sinks (a population with a
negative balance between productivity and mortality) if there is
increased mortality from automobile and window collisions, pet
predation, and other urban factors. Information in our files supports
the petitioners' claims of increasing human population growth along the
border in both Mexico and Arizona (AZ Daily Star 2000a, 2000b; Clement
et al. 2003, p. 60; DES 1997, East Valley Tribune 2005; Ewing et al.
2005, pp. 7-16; PAG 2003; Pineiro 2001, p. 1). The impacts of
urbanization on pygmy-owls and their habitat have been identified and
discussed in numerous documents within our files (USFWS 2005b, 2005c,
2005d), and we find that the information presented by the petitioners
is reliable.
According to the petition, the conversion of native vegetation to
non-native grasses for livestock grazing represents a threat to pygmy-
owl habitat in Arizona and Mexico. The petition states that the
conversion to and invasion by buffelgrass (Pennisetum ciliaris) results
in the direct loss and fragmentation of pygmy-owl habitat by
eliminating large columnar cacti (nest substrates) and other vegetation
required by pygmy-owls for nesting, perching, and cover; reduces prey
availability; and increases fire frequency in a non-fire-adapted
vegetation community (CBD and DOW 2007, p. 22). The petitioners point
out that this threat is widespread (8-10 million acres (3.2-4 million
hectares) in northern Mexico and the southwestern U.S.) and will likely
result in permanent impacts to pygmy-owls and pygmy-owl habitat. They
cite Van Devender and Dimmit (2000), who state that the introduction of
buffelgrass into fire-intolerant desert communities results in a
permanent conversion to a buffelgrass savanna with reduced plant cover
and diversity (CBD and DOW 2007, p. 22). Information within our files
supports the magnitude of this threat identified by the petitioners,
and we find that the information presented is reliable. In some cases
the conversion to buffelgrass has been so complete that consequences
are irreversible in the short term (Burquez et al. 1998, p. 21).
Talking about the potential extent of the threat of buffelgrass
conversion in Sonora, Mexico, Arriaga et al. (2004, pp. 1507-1510)
predict that buffelgrass could cover up to 53 percent of Sonora and
affect 26 percent of the desertscrub, 12 percent of the mesquite
woodlands, and 8 percent of the tropical deciduous forest. However,
regional efforts to reduce the extent of buffelgrass are being
initiated in southern Arizona.
The petition points out that the introduction of fire into non-
fire-adapted communities, such as the Sonoran Desert, has significant
effects on the native vegetation. The petitioners state that many
desert trees, shrubs, and cacti, including saguaros, are not fire-
adapted and cannot withstand fires. This is particularly significant in
relation to the pygmy-owl because of effects to nest cavities and prey
availability. As the conversion of native habitat to non-native plant
communities is primarily a human-facilitated issue, and because many
current fires are human-caused, the issue of fire in an environment of
increasing non-native plant communities and increasing population
growth is a legitimate threat to pygmy-owl habitat. The information
available in our files corroborates the increased occurrence and
severity of fires within the range of the pygmy-owl, and the
significant conversion of native plant communities to non-native
grassland savannahs in both the United States and Mexico.
The petitioners indicate that livestock grazing eliminates and
modifies pygmy-owl habitat, especially in sensitive riparian areas (CBD
and DOW 2007, p. 23). They contend that overgrazing results in the
direct removal of riparian vegetation, changes channel morphology, and
has been a primary factor in the loss of most riparian woodlands in the
southwest. With specific regard to pygmy-owl habitat elements, our
files indicate that overgrazing can affect saguaro (nest sites)
recruitment (Abouhaidar 1989, pp. 58-59), cause a loss of riparian
species diversity and cover (Belsky et al. 1999, pp. 425-428), and
reduce prey diversity (Jones 1981, pp. 109-114; Krueper 1996, pp. 288-
294). The threats to pygmy-owl habitat from livestock overgrazing as
raised by the petitioners were found to be reliable based on
information in our files. However, it is important to note that such
effects are typically the result of overgrazing and not well-managed
livestock grazing that occurs under an appropriate livestock-grazing
system, which under certain conditions, can have beneficial effects to
wildlife (Holochek et al. 1982, p. 208; Smith et al. 1996, p. 492). In
addition, no studies specifically related to the effects of livestock
grazing on pygmy-owls have been done.
The petitioners indicate that border activities can affect pygmy-
owls and pygmy-owl habitat. In particular, they
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point to the current construction of a wall along the U.S./Mexico
border intended to impede illegal immigration and smuggling activities.
They cite Flesch and Steidl (2007), who state that pygmy-owls often fly
short distances just above the ground when crossing vegetation
openings. The petitioners therefore claim that construction of the
border wall will preclude movement of individuals between Arizona and
Sonora. Our observations of pygmy-owl movements in the landscape
indicate that tall fences, in association with a zone cleared of
vegetation, would likely result in an impediment to pygmy-owl movements
in that area, and could affect local movements within territories, as
well as immigration and dispersal across the international border
(Abbate et al. 1999, p. 28-29; Flesch and Steidl 2007, p. 35, Scott
Richardson, personal observations). The effects to natural resources
resulting from illegal border crossing and smuggling, and the response
of enforcement agencies to such activities, such as the construction of
fences, is documented in our files, and we find the information
presented by the petitioners to be reliable (Cohn 2007, p. 96; Marris
2006, pp. 1-2).
In summary, we find that the information provided in the petition,
as well as other information in our files, presents substantial
scientific or commercial information indicating that the petitioned
action may be warranted due to the present or threatened destruction,
modification, or curtailment of the habitat or range of the subspecies
of ferruginous pygmy-owl defined in the petition. Information in our
files identifies the top ten threats to the natural resources of the
Sonoran bioregion, which includes many of the threats proposed by the
petitioners and described above (Nabhan and Holdsworth 1998, pp. 1-3).
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
According to the petition, overutilization is not considered a
major factor in pygmy-owl declines past or present.
C. Disease or Predation
The petition names a number of diseases or disease-related issues
that could potentially affect the status of the pygmy-owl population
throughout its range. These include hematozoa (blood parasites),
trichomoniasis, external parasites, and West Nile Virus. Information in
our files indicates that the information presented in the petition is
reliable and that ectoparasites, in particular, represent potential
threats to pygmy-owl populations (Proudfoot et al. 2005, pp. 186-187;
Proudfoot et al. 2006c, pp. 874-875). While little is known of the
natural occurrence of disease within pygmy-owl populations (Proudfoot
and Johnson 2000, p. 13), more is known regarding the occurrence of
parasites (Proudfoot et al. 2005, p. 186; Proudfoot et al. 2006, p.
873). Proudfoot et al. (2005, p. 186) could not rule out that blood
loss from external parasites, in combination with other factors, may
have contributed to the loss of an entire clutch of pygmy-owls in
Arizona. Serious disease problems have not been documented to date in
pygmy-owl populations; however, should such an event occur, the
population effects are clear given that fewer than 10 pygmy-owl nest
sites are typically documented in Arizona on an annual basis (Abbate et
al. 2000, pp. 15-16). The effects of an introduced virus, like the West
Nile Virus, on pygmy-owls are of particular concern (Ganez et al. 2004,
pp. 2135-2136).
The petitioners point out that predation on pygmy-owls has been
documented throughout its range. Recently-fledged young are
particularly vulnerable to predation, affecting the overall
productivity of pygmy-owls in Arizona (Abbate et al. 1999, p. 50). With
so few nests documented in Arizona, reduced productivity due to
predation can have population-level effects. Predation occurs naturally
within pygmy-owl populations; however, ongoing drought conditions
contribute to increasing predation rates due to lack of vegetation
cover and poor condition of individual pygmy-owls (USFWS 2004, AGFD
unpublished data). Information in our files indicates that this
information is reliable and that predation can affect the status of
local pygmy-owl populations. Non-native predators may increase
predation rates above natural levels. Introduced predators in urbanized
areas, such as domestic cats, have been documented as pygmy-owl
predators and are an ongoing threat to pygmy-owls and other wildlife as
urbanization increases (Evans 1995, pp. 4-5; Coleman et al. 1997, pp.
2-3; Winter and Wallace 2006, p. 3).
In summary, we find that the information provided in the petition,
as well as other information in our files, presents substantial
scientific or commercial information indicating that the petitioned
action may be warranted due to disease, especially given the low
population size of the pygmy-owl, and predation, particularly of
fledglings.
D. Inadequacy of Existing Regulatory Mechanisms
The petition includes four levels of current regulation that the
petitioners contend fall short in their protection of pygmy-owls and
pygmy-owl habitat. The petitioners indicate that Federal laws such as
the Migratory Bird Treaty Act and the National Environmental Policy Act
do not require protection of pygmy-owl habitat. The Arizona Game and
Fish Department includes the pygmy-owl as an endangered species on its
Species of Special Concern list (AGFD 1996, p. 15), but this list does
not afford the pygmy-owl any legal or regulatory protections. While
State wildlife laws prohibit the illegal take of pygmy-owls, they do
not address impacts to pygmy-owl habitat. Some local conservation
mechanisms, such as habitat conservation plans, are in development in
southern Arizona. These plans include conservation measures for pygmy-
owls, but are several years from completion and, as drafts, do not
afford the pygmy-owl any level of protection or conservation (although
some pygmy-owl habitat has been conserved through acquisitions related
to these plans). There are no regulations or laws in Mexico that
provide any specific protection to pygmy-owl habitat. Based on the
information in our files, the information presented by the petitioners
regarding existing regulatory mechanisms is reliable.
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
The petition identifies two issues under this factor, genetic
stochasticity and fire, that affect the continued existence of the
pygmy-owl. The petitioners indicate that the incidence of inbreeding
and the low genetic diversity within the pygmy-owl population may make
the population susceptible to stochastic genetic events. Caughley and
Gunn (1996, p. 166) are cited, noting that small populations can become
extinct entirely by chance even when their members are healthy and the
environment favorable (CBD and DOW 2007, p. 28). Information in our
files supports the contention that there is low genetic variability
within genetic samples obtained from pygmy-owls in the United States
and northern Mexico (Proudfoot and Slack 2001, p. 5; Proudfoot et al.
2006a, p. 9), and that pairings within family groups have been
documented in this same area (Abbate et al. 2000, p. 21).
The issue of fire and its effects on pygmy-owl habitat is related
to the issue
[[Page 31424]]
of non-native plant species and is more appropriately discussed earlier
in this document within the context of Factor A, rather than under
Factor E.
Distinct Vertebrate Population Segments and Significant Portion of the
Range
The petition asserts that the pygmy-owl occurs in two possible DPSs
and implies that, as a subspecies, the pygmy-owl is also threatened or
endangered throughout a significant portion of its range. We conclude
that the petition presents substantial information that listing the
entire subspecies may be warranted (see Finding below). Therefore, we
have not specifically evaluated whether the petition provides
substantial information with respect to the two potential DPSs outlined
within the petition, or the extent to which the pygmy-owl is endangered
or threatened throughout a significant portion of its range. An
analysis of these additional entities will occur during the 12-month
status review if we determine that listing of the entire subspecies is
not warranted.
Finding
We have reviewed the petition and the literature cited in the
petition, and evaluated the information to determine whether the
sources cited support the claims made in the petition. We also reviewed
reliable information that was readily available in our files to
evaluate the petition.
The petitioners presented substantial information indicating that
the pygmy-owl may be threatened by Factors A, C, D, and E throughout
the entire range of the subspecies defined in the petition in Arizona
and northwest Mexico. The petitioners did not assert that Factor B is
currently, or in the future, considered a threat to this species. Based
on this review and evaluation, we find that the petition has presented
substantial scientific or commercial information that listing the
pygmy-owl throughout all or a portion of its range may be warranted due
to current and future threats under Factors A, C, D, and E. As such, we
are initiating a status review to determine whether listing the pygmy-
owl under the Act is warranted. As part of our status review of the
pygmy-owl, we will examine whether the purported subspecific
designation is appropriate; whether the Arizona or Sonoran Desert DPSs
of the pygmy-owl warrant listing under the Act; or if the subspecies is
in danger of extinction within a significant portion of its range. We
will issue a 12-month finding as to whether any of the petitioned
actions are warranted.
References Cited
A complete list of references cited is available on the Internet at
http://www.regulations.gov and upon request from the Arizona Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
Author
The primary authors of this document are the staff of the Arizona
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (U.S.C. 1531 et seq.).
Dated: May 20, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-12168 Filed 5-30-08; 8:45 am]
BILLING CODE 4310-55-P