Rule2021-16249
Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Sierra Nevada Distinct Population Segment of the Sierra Nevada Red Fox
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 3, 2021
Effective
September 2, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the Sierra Nevada Distinct Population Segment (DPS) of the Sierra Nevada red fox (Vulpes vulpes necator) (hereafter referred to in this rule as the Sierra Nevada DPS). The Sierra Nevada red fox is a small mammal occurring in California and Oregon, with the Sierra Nevada DPS of this broader taxon inhabiting the highest elevations of the Sierra Nevada mountain range in California. This rule adds the Sierra Nevada DPS of Sierra Nevada red fox to the List of Endangered and Threatened Wildlife.
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[Federal Register Volume 86, Number 146 (Tuesday, August 3, 2021)]
[Rules and Regulations]
[Pages 41743-41758]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16249]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2019-0006; FF09E21000 FXES11110900000 212]
RIN 1018-BC62
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for the Sierra Nevada Distinct Population Segment of the Sierra
Nevada Red Fox
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the Sierra Nevada Distinct Population Segment
(DPS) of the Sierra Nevada red fox (Vulpes vulpes necator) (hereafter
referred to in
[[Page 41744]]
this rule as the Sierra Nevada DPS). The Sierra Nevada red fox is a
small mammal occurring in California and Oregon, with the Sierra Nevada
DPS of this broader taxon inhabiting the highest elevations of the
Sierra Nevada mountain range in California. This rule adds the Sierra
Nevada DPS of Sierra Nevada red fox to the List of Endangered and
Threatened Wildlife.
DATES: This rule is effective September 2, 2021.
ADDRESSES: This final rule is available on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R8-ES-2019-0006. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are available for public inspection at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R8-ES-2019-0006.
FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, Room W-2605, Sacramento, California 95825; telephone 916-
414-6700. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act, a
species may warrant protection through listing if it is endangered or
threatened throughout all or a significant portion of its range.
Listing a species as an endangered or threatened species can only be
completed by issuing a rule.
What this document does. This rule will finalize listing the Sierra
Nevada DPS of the Sierra Nevada red fox (Vulpes necator) (Sierra Nevada
DPS) as an endangered species under the Endangered Species Act. This
rule adds the Sierra Nevada DPS to the List of Endangered and
Threatened Wildlife in title 50 of the Code of Federal Regulations at
50 CFR 17.11(h).
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (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) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the Sierra Nevada DPS
faces the following threats: (1) Deleterious impacts associated with
small population size, such as inbreeding depression and reduced
genomic integrity (Factor E); (2) hybridization with nonnative red fox
(Factor E); and possibly (3) reduced prey availability and competition
with coyotes resulting from reduced snowpack levels (Factor E).
Existing regulatory mechanisms and conservation efforts do not address
the threats to the Sierra Nevada DPS to the extent that listing the DPS
is not warranted (Factor D).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. In this case, we have
found that the designation of critical habitat for the Sierra Nevada
DPS is not prudent.
Peer review and public comment. During the proposed rule stage, we
sought the expert opinions of five appropriate specialists regarding
the species status assessment (SSA) report. We received responses from
two specialists, which informed our determination. We also considered
all comments and information received from the public during the
comment period.
Previous Federal Actions
On January 8, 2020, we published a proposed rule in the Federal
Register (85 FR 862) to list the Sierra Nevada DPS as an endangered
species under the Act (16 U.S.C. 1531 et seq.). Please refer to that
proposed rule for a detailed description of previous Federal actions
concerning this DPS, which we refer to as a ``species'' or
``subspecies'' in this rule, in accordance with the Act's definition of
``species'' at 16 U.S.C. 1532(16).
Summary of Changes From the Proposed Rule
In preparing this final rule, we reviewed and fully considered
comments from the public on the proposed rule. We did not make any
substantive changes to this final rule after consideration of the
comments we received. We did update some biological and threats
information based on comments and some additional information provided,
as follows: (1) We made several nonsubstantive clarifications and
corrections (including addition of information related to potential
snowmobiling impacts) in the Species Information and Summary of
Biological Status and Threats sections of this rule in order to ensure
better consistency, clarify some information, and update or add new
references; (2) we included additional information we received
regarding observations of Sierra Nevada DPS detections and population
size across its range; and (3) we added a summary discussion of the
threat of habituation to humans and human-based food sources in this
rule, which was based on additional information provided by a
commenter. However, the information we received during the comment
period for the proposed rule did not change our previous analysis of
the magnitude or severity of threats facing the DPS.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the Sierra Nevada DPS (Service 2018, entire). The SSA team was composed
of Service biologists, in consultation with other species experts. The
SSA report represents a compilation of the best scientific and
commercial data available concerning the status of the DPS, including
the impacts of past, present, and future factors (both negative and
beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we sought peer review of the SSA report.
The Service sent the SSA report to five independent peer reviewers and
received two responses. The purpose of peer review is to ensure that
our listing determinations are based on scientifically sound data,
assumptions, and analyses. The peer reviewers have expertise in the
biology, habitat, and threats to the species. The Service also sent the
SSA report to five agency partners and three Tribes, including
scientists with expertise in the Sierra Nevada DPS, conservation
biology, and forest management, for review. We received reviews from
five partners: The fish and wildlife agencies of California and Nevada,
the National Park Service, the U.S. Forest Service (USFS), and the U.S.
Marine Corps.
Final Listing Determination
Background
A thorough review of the taxonomy, life history, ecology, and
overall viability of the Sierra Nevada DPS is presented in the SSA
report (Service 2018; available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>). This
report summarizes the relevant biological data and a description of
past, present, and likely future stressors, and presents an analysis of
the viability of the Sierra Nevada DPS. The SSA report documents
[[Page 41745]]
the results of the comprehensive biological status review, provides an
evaluation of how potential threats may affect the species' viability
both currently and into the future, and provides the scientific basis
that informed our regulatory decision regarding whether this DPS should
be listed as an endangered or threatened species under the Act, as well
as the risk analysis on which the determination was based (Service
2018, entire). The following discussion is a summary of the SSA report.
Species Information
Red foxes (Vulpes vulpes) are small, slender, doglike carnivores,
with elongated snouts, pointed ears, and large bushy tails (Aubry 1997,
p. 55; Perrine 2005, p. 1; Perrine et al. 2010, p. 5). The Sierra
Nevada red fox is one of 10 North American subspecies of the red fox
(Hall 1981, p. 938; Perrine et al. 2010, p. 5). Diagnostic features, by
which red foxes can be distinguished from other small canines, include
black markings on the backs of their ears, black shins, and white tips
on their tails (Statham et al. 2012, p. 123).
Sierra Nevada red foxes average about 4.2 kilograms (kg) (9.3
pounds (lb)) for males and 3.3 kg (7.3 lb) for females, as compared to
the general North American red fox average of about 5 kg (11 lb) for
males and 4.3 kg (9.5 lb) for females (Perrine et al. 2010, p. 5).
The Sierra Nevada red fox is characterized by what appears to be
specialized adaptations to cold areas (Sacks et al. 2010, p. 1524).
These apparent adaptations include a particularly thick and deep winter
coat (Grinnell et al. 1937, p. 377), longer hind feet (Fuhrmann 1998,
p. 24), and small toe pads (4 millimeters (mm) (0.2 inch (in)) across
or less) that are completely covered in winter by dense fur, which may
facilitate movement over snow (Grinnell et al. 1937, pp. 378, 393;
Fuhrmann 1998, p. 24; Sacks 2014, p. 30). The Sierra Nevada red fox's
smaller size may also be an adaptation to facilitate movement over snow
by lowering weight supported by each footpad (Quinn and Sacks 2014, p.
17), or it may simply result from the reduced abundance of prey at
higher elevations (Perrine et al. 2010, p. 5).
Genetic analyses indicate that red foxes living near Sonora Pass,
California, as of 2010 are descendants of the Sierra Nevada red fox
population that was historically resident in the area (Statham et al.
2012, pp. 126-129). This is the only population known to exist in the
Sierra Nevada mountain range, and is thus the last known remnant of the
larger historical population that occurred along the upper elevations
of the Sierra Nevada mountain range from Tulare to Sierra Counties. The
only other known Sierra Nevada red fox population in California is
located near Lassen Peak, in the southern Cascade mountain range, and
shows clear genetic differences from the Sonora Pass population
(Statham et al. 2012, pp. 129-130) (see also DPS analysis in our
October 8, 2015, 12-month finding (80 FR 61011)). The population near
Lassen Peak is part of another population segment, whose range also
includes the Cascade Mountains of Oregon. We determined that listing
the Southern Cascades population segment was not warranted in 2015 (80
FR 60989).
Range and Habitat
Based on known detections, as well as what is known regarding high-
quality habitat, we consider the current range of the Sierra Nevada DPS
to run southeast along the Sierra crest from just south of California
State Highway 88 to a few miles north of Kings Canyon National Park
(Figure 1). The range includes the easternmost portion of Yosemite
National Park (hereafter referred to as ``Yosemite''), in Tuolumne and
Madera Counties, as well as additional portions of those counties, and
of Alpine, Mono, Fresno and Inyo Counties (Cleve et al. 2011, entire;
Sacks et al. 2015, pp. 10, 14; Eyes 2016, p. 2; Hiatt 2017, p. 1;
Figure 1; Quinn 2018a, attachments; Stermer 2018, p. 1).
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Sierra Nevada DPS sightings have consistently occurred in subalpine
habitat and high-elevation conifer areas at elevations ranging from
2,469 to 3,538 meters (m) (8,100 to 11,608 feet (ft)) (Sacks et al.
2015, pp. 3, 11; Dunkelberger 2020, p. 3). Four detections (out of more
than 750 scat or hair samples that have been obtained since 2011) have
occurred at lower elevations (from 6,805 to 7,059 ft (2,074 to 2,152
m)), but these outliers appear to be from three individuals that were
in the process of dispersing (Quinn 2020, p. 1). In the Sonora Pass
area used by the Sierra Nevada DPS, subalpine habitat is characterized
by a mosaic of high-elevation meadows, rocky areas, scrub vegetation,
and woodlands (largely mountain hemlock (Tsuga mertensiana), whitebark
pine (Pinus albicaulus), and lodgepole pine (Pinus contorta)) (Fites-
Kaufman et al. 2007, p. 475; Sacks et al. 2015, p. 11; Quinn 2017, p.
3). Snow cover is typically heavy, and the growing season lasts only 7
to 9 weeks (Verner and Purcell 1988, p. 3). Forested areas are
typically relatively open and patchy (Verner and Purcell 1988, p. 1;
Lowden 2015, p. 1), and trees may be stunted and bent (krumholtzed) by
the wind and low temperatures (Verner and Purcell 1988, p. 3; Sacks et
al. 2015, p. 11).
[[Page 41747]]
Feeding
Individuals of the Sierra Nevada DPS are opportunistic predators of
small mammals such as rodents (Perrine et al. 2010, pp. 24, 30, 32-33;
Cross 2015, p. 72). Leporids such as snowshoe hare (Lepus americanus)
and white-tailed jackrabbit (Lepus townsendii) are also an important
food source for the Sierra Nevada DPS, particularly in winter and early
spring (Aubry 1983, p. 109; Rich 2014, p. 1; Quinn 2017, pp. 3-4; Sacks
2017, p. 3).
Life History
Although information regarding Sierra Nevada DPS reproductive
biology is limited, it is likely similar in many ways to other North
American red fox subspecies (Aubry 1997, p. 57). Other subspecies are
predominantly monogamous, with a gestation period of 51 to 53 days
(Perrine et al. 2010, p. 14). Based on information from both the Sierra
Nevada and Southern Cascades populations, Sierra Nevada DPS foxes
likely mate in mid-February to early March, with births occurring in
April and early May (Dunkelberger 2020, p. 1; Sacks and Quinn 2020, p.
3). This is somewhat later than lowland subspecies, possibly as an
adaptation to the later growth of spring vegetation at higher
elevations (Quinn and Sacks 2020, p. 3). Members of the Sierra Nevada
DPS use natural openings in rock piles or crevices in exposed bedrock
as denning sites (Grinnell et al. 1937, p. 394). Individual foxes from
the Southern Cascades population in both Oregon and California have
also recently been found to dig earthen dens (Dunkelberger 2020, p. 2;
Sacks and Quinn 2020, p. 3), suggesting that Sierra Nevada DPS foxes do
as well. Dens are used by foxes in the Southern Cascades population
(and likely in the Sierra Nevada DPS) to raise the young from early
spring through early fall, and they are often reused from year to year
(Dunkelberger 2020, pp. 1-3). A 7-year study of the Sierra Nevada DPS
found litter sizes of 2.3 pups on average (9 litters and 21 pups, not
counting one purely nonnative litter) (Quinn and Sacks 2018, p. 38).
This is within the range of two to three pups per litter that appear to
be typical in the Southern Cascades population (Perrine 2005, p. 152).
Reproductive output is generally lower in montane foxes than in those
living at lower elevations, possibly due to comparative scarcity of
food (Perrine 2005, pp. 152-153; Sacks 2017, p. 2).
Demographics
In our proposed listing rule (85 FR 862, p. 866), we estimated the
population size of the Sierra Nevada DPS at 10 to 50 adults. Based on
comments received, we now revise that estimate to approximately 18 to
39 individuals, of which 10 to 31 are north of Yosemite (Sacks and
Quinn 2020, p. 1), about 5 are in or just east of Yosemite (Central
Sierra Environmental Resource Center (CSERC) et al. 2020, pp. 2-3,
California Department of Fish and Wildlife (CDFW) 2020, p. 4), and 3
have been identified south of Yosemite in the general area of Mono
Creek (CDFW 2020, p. 3). All detections, including new detections
mentioned in comments to the proposed rule, have been within the
approximate current range (Figure 1). Population density north of
Yosemite is estimated at approximately 4 foxes per 100 sq km (square
kilometers) (about 1 fox per 10 sq mi (square miles)) (Sacks and Quinn
2020, p. 1).
The average lifespan, age-specific mortality rates, sex ratios, and
demographic structure of the Sierra Nevada DPS are not known, and are
not easily extrapolated from other red fox subspecies because heavy
hunting and trapping pressure on those other subspecies likely skew the
results (Perrine et al. 2010, p. 18). However, three individual Sierra
Nevada red fox within the Southern Cascades population (in the Lassen
area) lived at least 5.5 years (CDFW 2015, p. 2), and a study of the
Sierra Nevada DPS (in the Sonora Pass area) found the average annual
adult survival rate to be about 70 percent, which is relatively high
for red foxes (Sacks and Quinn 2020, p. 2).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an ``endangered species'' or a ``threatened
species.'' The Act defines an endangered species as a species that is
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species that is ``likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' The Act requires that we
determine whether any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(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) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
Analytical Framework
The SSA report documents the results of our comprehensive
biological status review for the DPS, including an assessment of the
potential threats to the species. The SSA report does not represent a
decision by the Service on whether the species should be listed as an
endangered or threatened species
[[Page 41748]]
under the Act. It does, however, provide the scientific basis that
informs our regulatory decisions, which involve the further application
of standards within the Act and its implementing regulations and
policies. The following is a summary of the key results and conclusions
from the SSA report; the full SSA report can be found at Docket No.
FWS-R8-ES-2019-0006 on <a href="http://www.regulations.gov">http://www.regulations.gov</a> and on the Sacramento
Fish and Wildlife Office's website at <a href="https://www.fws.gov/sacramento/">https://www.fws.gov/sacramento/</a>.
To assess the Sierra Nevada DPS's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. This process used the best
available information to characterize viability as the ability of a
species to sustain populations in the wild over time. We use this
information to inform our regulatory decision.
Summary of Biological Status and Threats
The summary below of our analyses represents an evaluation of the
biological status of the DPS, based upon our assessment of the effects
anticipated from each of the identified threats. We also consider the
cumulative impact of all effects anticipated from the identified
threats, and how that cumulative impact may affect the Sierra Nevada
DPS's continued existence currently and in the future. We used the best
available scientific and commercial information, and the expert
opinions of the analysis team members. The threats identified as having
the greatest potential to act upon the DPS include: (1) Deleterious
impacts associated with small population size, such as inbreeding
depression and increased effects of deleterious stochastic events
(Factor E); (2) over-hybridization with nonnative red fox (Factor E);
and possibly (3) competition with coyotes (Factor E) resulting from
reduced snowpack levels. We also evaluated the existing regulatory
mechanisms (Factor D) and implementation of conservation efforts.
The environmental characteristics that are most important for
Sierra Nevada DPS population resiliency include cold subalpine habitat
with low primary productivity, high snowpack, and rodent and leporid
prey (Service 2018, pp. 14-20). Additional demographic characteristics
contributing to the species' redundancy and representation include (1)
Either a single large or multiple populations, which would help insure
that large portions of the DPS remain even after a catastrophic loss
over a large area; (2) a population(s) situated to include habitat
variations occurring from northern to southern portions of the range
(rather than clustering in one general area); and (3) representative
genetic diversity to avoid genetic swamping and loss of the species'
adaptive native genes, which could result from continuing and overbroad
levels of interbreeding with nonnative red fox subspecies.
The best available scientific and commercial information at this
time indicates that the Sierra Nevada DPS population size needs to be
larger to help ensure its viability into the future. The minimum
population size necessary for the Sierra Nevada DPS to maintain
viability is unknown, but that number has been estimated at about 150
individuals for the Santa Catalina Island fox (Urocyon littoralis
catalinae) (Kohlmann et al. 2005, p. 77), which has a small range
compared to suitable habitat available for the Sierra Nevada DPS.
Lacking better data, we use this number as an example of what the
minimum viable population size for the Sierra Nevada DPS could be. The
current estimated population size of 18 to 39 individuals is well below
that number, meaning that the population is likely vulnerable to
stochastic disturbance (in addition to other threats discussed below).
When considering redundancy, there is currently only one small,
isolated population of Sierra Nevada DPS known within the Sierra Nevada
mountain range. In general, given the low number of foxes currently
known within this DPS and the limited range they inhabit, the DPS
appears to have a low ability to withstand catastrophic events should
they occur. Additionally, there do not appear to be any other
populations within the range of this DPS to serve as a source to
recover from a catastrophic loss of individuals.
When considering the breadth of genetic and environmental diversity
within and among populations (representation), the Sierra Nevada DPS
historically occurred throughout the high elevations of the Sierra
Nevada. The current, small population has been experiencing genetic
challenges, including inbreeding depression, as well as hybridization
with non-Sierra Nevada red fox individuals, which can potentially lower
survivorship or reproductive success by interfering with adaptive
native genes or gene complexes (Allendorf et al. 2001, p. 617; Frankham
et al. 2002, pp. 386-388). Having broad genetic and environmental
diversity would help the DPS withstand environmental changes. However,
at this time, the Sierra Nevada DPS does not have this broad diversity.
Summary of Existing Regulatory Measures and Voluntary Conservation
Efforts
Since 1998, the USFS have identified the Sierra Nevada DPS as a
sensitive species where it occurs on National Forest lands. The current
range of the DPS includes portions of the Stanislaus, El Dorado,
Humboldt-Toiyabe, Inyo, and Sierra National Forests. Sensitive species
receive special consideration during land use planning and activity
implementation to ensure species viability and to preclude population
declines (USFS 2005, section 2670.22). The USFS included Sierra Nevada
red fox-specific protection measures in the Sierra Nevada Forest Plan
Amendment (SNFPA) Standards and Guidelines given the extensive overlap
of suitable and in some cases occupied habitat for the Sierra Nevada
red fox with USFS lands. These specific protection measures require the
USFS to conduct and analyze potential impacts of activities within 8 km
(5 mi) of a verified Sierra Nevada red fox individual sighting (USFS
2004, p. 54). The protection measures also limit the time of year that
certain activities may occur to avoid adverse impacts to Sierra
[[Page 41749]]
Nevada red fox breeding efforts, and require 2 years of evaluations
following activities near sightings that are not associated with a den
site (USFS 2004, p. 54).
The National Park Service management policies prohibit hunting,
trapping, and snowmobiling in Yosemite and manage natural resources to
``preserve fundamental physical and biological processes, as well as
individual species, features, and plant and animal communities'' (NPS
2006, p. 26). Land management plans for Yosemite and Sequoia National
Parks (the latter of which is not known to currently harbor Sierra
Nevada DPS foxes but are within the DPS's historical range) do not
contain specific measures to protect the Sierra Nevada DPS individuals
or habitat. However, areas not developed specifically for recreation
and camping are managed toward natural processes and species
composition, and the best available scientific and commercial
information indicates that the National Park Service would maintain the
DPS's habitat.
The Department of Defense recently completed an Integrated Natural
Resources Management Plan (INRMP) for the U.S. Marine Corps Mountain
Warfare Training Center (MWTC), which is a facility and training area
that falls within the Sierra Nevada DPS's range, including overlap with
some known sightings. The INRMP includes provisions prohibiting
disturbance within 100.6 m (330 ft) of Sierra Nevada red fox den sites
from March 1 to June 30 (MWTC 2018, p. 4-37). The INRMP also
establishes food storage and trash clean-up provisions to prevent
habituation (MWTC 2018, p. 4-38). A table in the INRMP incorrectly
identifies the dates during which disturbance of den sites must be
avoided as January 1 to June 30 (MWTC 2018, p. 3-26), but the MWTC's
2020 Annual Operating Plan supports the March 1 to June 30 dates (MWTC
2019, p. 24).
On October 2, 1980, the State of California listed the Sierra
Nevada red fox as a threatened species. The designation prohibits
possession, purchase, or ``take'' of threatened or endangered species
without an incidental take permit, issued by the CDFW. Additionally,
red foxes in general are protected by the State from hunting and
trapping (14 C.C.R. 460).
A conservation effort currently is underway by the Sierra Nevada
Red Fox Working Group. This working group was formed in 2015 by
representatives of Federal and State wildlife agencies, State
universities, and nongovernmental conservation organizations (Sierra
Nevada Red Fox Working Group 2015, p. 1; 2016, p. 1). In addition to
continued monitoring of the Sierra Nevada red fox across its range,
including the Sierra Nevada DPS, the working group is currently
developing a conservation strategy, which will include a genetics
management plan. While the Sierra Nevada DPS population remains low,
careful monitoring and genetics management will be key in identifying
and responding appropriately to any downward trends in population
numbers.
Risk Factors Affecting the Sierra Nevada DPS of Sierra Nevada Red Fox
Our SSA considered a variety of environmental and demographic
characteristics important to the viability of the Sierra Nevada DPS,
taking into consideration both current and potential future conditions
that may impact the DPS. The environmental characteristics we
considered were: (1) Extent of subalpine habitat, (2) deep winter snow
cover, (3) and rodent and leporid (rabbit and hare) populations.
Subalpine habitat is important because its lower primary productivity
and short growing season leave it unable to support as many prey
animals as typically occur at lower elevations (Verner and Purcell
1988, p. 2). This makes subalpine habitat more ``marginal'' for
supporting mid-sized carnivores, such as coyotes and foxes. Red foxes
tend to avoid competition with coyotes by relocating to marginal
habitats that coyotes find less attractive (Cross 2015, p. 38). Several
studies have found this tendency can result in elevational
stratification, with red foxes relegated to the poorer habitat at
higher elevations (Perrine 2005, p. 84).
The smaller size and furred feet of Sierra Nevada DPS foxes also
improve their chances relative to coyotes at catching leporids running
over deep snow (Grinnell et al. 1937, pp. 395-396; Perrine 2005, p.
81), and let them travel over snow more easily to reach productive
hunting areas (Grinnell et al. 1937, p. 393; Fuhrmann 1998, p. 24;
Perrine 2005, p. 81). Mule deer carrion (Odocoileus hemionus) is an
important non-winter food source for both red foxes and coyotes at high
elevations in and around Lassen Volcanic National Park, but deer in
Lassen typically descend to lower elevations in winter, avoiding heavy
snow (Perrine 2005, p. 30). Mule deer are also present in the range of
the Sierra Nevada DPS, but a camera survey found none in the area
during winter months (Sacks et al. 2015, p. 24). The low productivity
and heavy snows of the Sierra Nevada DPS's high-elevation range
therefore appear to discourage coyotes from occupying the area in
winter to the same extent as at lower elevations, thereby leaving
Sierra Nevada DPS foxes to occupy the area with less direct competition
from coyotes (Sacks 2017, p. 2).
The remaining environmental characteristic, rodent and leporid
population levels, is important to consider separately because prey
population numbers can change for reasons unrelated to primary
productivity or snowpack depth.
The demographic characteristics we considered important to the
viability of the Sierra Nevada DPS include: (1) Genomic integrity
(extent of hybridization or inbreeding depression), (2) population
size, and (3) number of populations.
Risk factors affecting the environmental characteristics that the
DPS relies on include changing climate-related conditions, such as
primary production levels and snowpack, which can affect coyote
presence (and thus competition with Sierra Nevada DPS individuals) in
high-elevation areas; prey availability; and potential impacts of
habituation to humans and human-provided food sources. Risk factors
affecting the demographic characteristics include deleterious impacts
associated with small population size, including inbreeding depression
(as a consequence of population reduction and a lack of other
populations) and reduced genomic integrity, and levels of hybridization
with nonnative red foxes. Our evaluation of the best available
scientific and commercial information indicates the Sierra Nevada DPS's
resiliency is not significantly adversely affected by impacts
specifically associated with its habitat. We presented several
potential causal connections between habitat conditions and their
importance to the Sierra Nevada DPS, as well as scenarios related to
possible future trajectories of the risk factors that could affect
those habitat conditions. As we analyzed these potentialities, we
determined that the relative importance of potential causal connections
was lower than presented in some scenarios, and that the most likely
scenario of future conditions would exhibit a lower overall risk to the
DPS's habitat. As such, we conclude that there are not any current or
future significant habitat-based threats. The best available scientific
and commercial information suggests that threats to the subspecies
directly (as opposed to habitat) are of greatest concern. Below is a
summary of the factors influencing the species viability, provided in
detail in the SSA report (Service 2018) and
[[Page 41750]]
available on the internet at <a href="http://www.regulations.gov">www.regulations.gov</a>, Docket No. FWS-R8-ES-
2019-0006.
Subalpine Habitat Suitability, Snowpack Levels, and Coyote Presence
Over the past 75 years, average annual temperatures in the Sierra
National Forest (which overlaps the southwestern portion of the Sierra
Nevada DPS's range) have increased by about 1.0 to 1.5 [deg]C (Meyer et
al. 2013, p. 2). In the Lake Tahoe region (northern Sierra Nevada
mountain range in California), the average number of days per year for
which the average temperature was below-freezing has decreased from 79
in 1910 to about 51 in 2010 (Kadir et al. 2013, p. 102). These
increased average temperatures coupled with periodic drought conditions
can result in changed habitat conditions in subalpine habitat. For
example, direct measurements of primary productivity in a subalpine
meadow in Yosemite have shown that mesic (medium wet) and hydric (wet)
meadows both tend to increase productivity in response to warmer, drier
conditions (Moore et al. 2013, p. 417). Xeric (dry) meadows tend to
increase productivity due to warmth, but decrease due to drier
conditions (Moore et al. 2013, p. 417). A comparison of tree biomass
and age in subalpine forests now and about 75 years ago also points to
increased productivity over time (Kadir et al. 2013, p. 152).
Specifically, small trees with comparatively more branches increased by
62 percent, while larger trees decreased by 21 percent, resulting in
younger, denser stands (Kadir et al. 2013, p. 152). This overall
increase in biomass occurred consistently across the subalpine regions
of the Sierra Nevada mountain range and across tree species. The
primary cause was an increase in the length of the growing season
(Kadir et al. 2013, p. 152).
A study of coyotes and montane red foxes in the Lassen area of
California found that coyotes moved out of high elevation areas during
the winter, possibly due to deep snow (Perrine 2005, p. 74). Red foxes
also moved to somewhat lower elevations in winter, but tended to remain
at higher elevations than coyotes (average 1,878 m (6,161 ft) versus
average 1,690 m (5,545 ft) for coyotes) (Perrine 2005, p. 96). Studies
in Alberta and Maine have also documented elevational separation of
coyotes and red foxes (Perrine 2005, p. 84). A study of coyotes in
Sonora Pass, however, where Sierra Nevada DPS foxes occur, found that
coyotes outnumber DPS foxes during the summer in the high elevation
areas most used by Sierra Nevada DPS foxes, and also found several
coyotes that were occupying the high-elevation areas year-round (Quinn
and Sacks 2014, p. 12; Quinn 2017, pp. 6-7). Areas unoccupied by
coyotes may serve as refugia for red foxes (Perrine 2005, p. 84), so
the coyotes occupying high elevation areas near Sonora Pass during the
winter may be negatively impacting Sierra Nevada DPS foxes by
restricting them from hunting areas or den sites, by the threat of
direct predation on adult foxes or cubs, and by generally reducing the
carrying capacity of the area available for the foxes (Quinn and Sacks
2018, p. 18). The extent of the impact is of course unclear, but given
the current small estimated size of the Sierra Nevada DPS population,
any death or reproductive failure resulting largely from coyote
presence could affect the overall viability of the DPS as a whole.
In the central portion of the Sierra Nevada mountain range, average
recent April 1 snowpack levels in Yosemite (which overlaps a portion of
the known Sierra Nevada DPS sightings) have been just above 60 cm (23.6
in) (Curtis et al. 2014, p. 9). To date, all Sierra Nevada DPS
individuals sighted within the park have been in the areas of highest
snowpack (Eyes 2016, p. 2).
While snowpack conditions vary by year and location, the best
available scientific and commercial information suggests that the areas
where the Sierra Nevada DPS occurs have been maintaining high snowpack
during winter and spring most years (see section 4.1 of the SSA report
(Service 2018, pp. 22-23)). Therefore, the current condition of the
snowpack depth appears adequate for the DPS's needs, except during
drought years such as occurred in California and other western states
from 2012 to 2017 (Kim and Lauder 2017, pp 2-45).
Prey Availability
Rodent population numbers in subalpine areas have likely increased
due to an increase in primary productivity (Service 2018, pp. 21, 24).
Despite several factors that may limit their availability (e.g.,
increased presence of coyotes), the general landscape appears adequate
for rodents.
Adequate leporid population numbers may be of concern given that
both white-tailed jackrabbits and snowshoe hares are considered species
of special concern across the Sierra Nevada by CDFW (CDFW 2017, p. 51),
a designation meaning they are potentially vulnerable to extirpation in
California (CDFW 2017, p. 10). Regardless of rangewide leporid
abundance, the best available scientific and commercial information
does not indicate that leporid abundance is inadequate in the vicinity
of the majority of known Sierra Nevada DPS sighting locations (i.e.,
Sonora Pass area); leporids appear currently to be relatively common
and present all year in the Sonora Pass area (Rich 2014, p. 1).
Habituation
Based on new information received, habituation of Sierra Nevada DPS
foxes to humans and human food sources may expose Sierra Nevada DPS fox
individuals to harm or injury, such as from dog attacks, dog diseases,
and vehicle collisions (Dunkelberger 2020, p. 2). Sierra Nevada red
foxes in the Southern Cascades population have been exhibiting begging
behavior at the Lassen Peak parking lot (Perrine 2005, p. 150). A
female from that population was killed by a dog in 2002 after having
previously exhibited begging behavior (Perrine 2005, p. 135). The death
occurred less than 175 m (600 ft) from a ski chalet.
Other indicators of habituation have also been noted in the range
of the Sierra Nevada DPS. The Humboldt-Toiyabe National Forest has
several photographs of Sierra Nevada DPS foxes closely approaching
hikers and snowmobilers, presumably in hopes of obtaining food
(Dunkelberger 2020, p. 2). Hikers within the DPS's range have also
posted photographs on social media showing themselves feeding Sierra
Nevada DPS foxes. Although we have no reports of Sierra Nevada DPS
foxes approaching soldiers at the MWTC, trash has occasionally been
left after training exercises, and tracks from Sierra Nevada red foxes,
as well as fox scat containing food wrappers have been found in these
debris areas (Dunkelberger 2020, p. 2). The recently completed INRMP
commits the MWTC to implement measures that prevent habituation of
foxes, including an education program for military personnel on these
measures (MWTC 2018, p. 3-67). As a result of these actions, we do not
expect habituation on MWTC lands to significantly affect the population
of the DPS. We have no information indicating loss of Sierra Nevada DPS
foxes due to habituation. Overall, the best available information
suggests that habituation of individual foxes may occur, but is
expected to be restricted to a few individuals over time.
Deleterious Effects Associated With Small Populations
Sierra Nevada DPS population numbers are currently low (18 to 39
individuals spread across the Sonora Pass, northern Yosemite, and Mono
[[Page 41751]]
Creek areas) (Sacks and Quinn 2020, p. 1; CSERC et al. 2020, pp. 2-3,
CDFW 2020, pp. 3-4) and appear to have been low for many years.
Sightings fell considerably in the mid-1900s, for instance, as compared
to trapping data reported by Grinnell et al. (1937, p. 389) (Schempf
and White 1977, p. 44). The low numbers make this DPS more susceptible
to deleterious stochastic events such as major fires or diseases. Loss
of a few individuals due to stochastic events would mean the loss of a
relatively large proportion of the small Sierra Nevada DPS population.
Additionally, the Sierra Nevada DPS's low population numbers make
it vulnerable to inbreeding depression. Inbreeding depression is caused
by the chance loss of beneficial gene variants (alleles) in small
populations, leaving deleterious alleles as the only remaining variants
of a given gene (Soul[eacute] 1980, pp. 157-158). It can result in
lowered reproductive ability, congenital defects, and lowered disease
resistance (Soul[eacute] 1980, pp. 157-158; Gilpin 1987, p. 132;
O'Brien 2003, pp. 62-63). To avoid inbreeding depression, a population
typically requires an ``effective'' population size of at least 100
reproducing adults (Frankham et al. 2014, p. 58). The ``effective
size'' of a population is generally smaller than the actual size, and
refers to the number of breeding individuals that would be necessary to
produce the level of genetic diversity observed in the population if
the members of the population interbred in a manner that was ideal for
maximizing genetic diversity (Lande and Barrowclough 1987, pp. 88-89).
So for instance, a population in which few individuals bred, and in
which they chose mates from among their geographical neighbors, would
have a smaller effective size than a population in which almost all
adults bred and chose mates from among the entire population.
The Sierra Nevada DPS's actual population size of 18 to 39
individuals is already well below 100, but (based on samples taken from
2015 to 2017) its effective population size was only 6.1 prior to the
immigration into the population of two nonnative males in 2012 (CDFW
2020, p. 3). Thus, the same level of genetic diversity could have been
produced by only about six breeding individuals in an ``ideal''
population in which breeding practices maximized diversity. This means
the Sierra Nevada DPS had likely been suffering from inbreeding
depression prior to the arrival of two Great Basin foxes in 2012 (Sacks
et al. 2015, pp. 3, 10, 29-30) (see Genomic Integrity, below).
Additional support for this conclusion is provided by preliminary
results of a study that estimated the inbreeding coefficient of a
Sierra Nevada DPS fox that was born prior to the arrival of the Great
Basin immigrants (Sacks and Quinn 2020, p. 2). The inbreeding
coefficient was found to be above 0.4, which is at the high end of the
range found in Isle Royal wolves, a population with demonstrated severe
inbreeding depression (Sacks and Quinn 2020, p. 2).
These data indicate that lowered reproductive success from
inbreeding depression may be primarily responsible for the complete
lack of pup production documented in the Sonora Pass area from 2011
through 2017 by mated pairs of pure Sierra Nevada DPS foxes (Quinn et
al. 2019, p. 571). It is thus likely to have constituted a limiting
factor on population size in recent years (Sacks and Quinn 2020, p. 3).
And while recent interbreeding with foxes from the Great Basin appears
to have increased reproductive success, we have no information
regarding the extent of other potential effects that are typically
associated with inbreeding depression, such as congenital defects and
lowered disease resistance, nor whether these potential effects may
also have been alleviated. The population also remains small at
present, and thus potentially susceptible to renewed impacts from
inbreeding depression (Quinn et al. 2019, p. 573), or from deleterious
chance events such as drought or fire. If inbreeding depression does
return, the impacts would likely be worse due to the addition of new
alleles from the Great Basin into the population (Quinn et al. 2019, p.
573).
Genomic Integrity
Prior to spring of 2013, no reproduction between native individuals
of the Sierra Nevada DPS and nonnative immigrant red fox was known to
have occurred (Sacks et al. 2015, p. 9; Sacks 2017, p. 4). However, two
nonnative male red foxes with a mixture of Great Basin montane (V. v.
macroura) and fur-farm ancestry arrived at the Sonora Pass area in 2012
(Sacks et al. 2015, pp. 3, 10, 29-30). By 2014, they had produced a
total of 11 hybrid pups (Sacks et al. 2015, pp. 29-30), and by 2017,
the hybrids had interbred and produced 13 additional pups (Quinn et al.
2019, p. 571). These 24 pups, all with a mixture of Sierra Nevada DPS
and Great Basin montane fox ancestry, are the only pups known to have
been produced in the population since 2011 (Quinn et al. 2019, p. 571;
Sacks and Quinn 2020, p. 2). A third nonnative male was sighted (once)
in 2014, and a fourth in 2017 (Sacks and Quinn 2020, p. 2), although we
have no information to indicate whether either of these produced young.
While the hybrid pups assist in helping the Sierra Nevada DPS
experience less inbreeding depression (as discussed above), there
remains the possibility that so many immigrants might enter the
population and produce young that the unique heritable characteristics
of the Sierra Nevada DPS are lost (Sacks et al. 2015, pp. 17-18; Quinn
et al. 2019, p. 573). This loss of genes representative of the
diversity of the DPS would initially mean a loss of representation
(i.e., a diminished ability to adapt to long-term changes due to the
lost genes). If such genetic replacement continued to the point where
the DPS as a whole was facing replacement by nonnative foxes, then that
would represent a loss of resiliency (i.e., the inability of remaining
members of the DPS in the population to recover from stochastic
events). For instance, if the last remaining individuals considered
members of the DPS were of an older generation because their pups were
all too hybridized to qualify as Sierra Nevada DPS, then any stochastic
event that eliminated the last of the older DPS individuals would also
eliminate the DPS as a whole, despite the continuing existence of non-
DPS foxes in the area.
The current demographic circumstances of the DPS as a single, small
population is also likely to result in low representation, because
unique adaptations and genetic variations that DPS members in other
portions of the historical range may once have had are likely to be
lost now that the DPS no longer includes those areas. The historical
range (as sketched by Grinnell et al. (1937, p. 382)) stretched for
roughly 460 km (285 mi) from the northern to the southern Sierra Nevada
mountains. The estimated current range, at only about 188 km (117 mi)
long, and about half as wide, only covers portions of the central
Sierras. Examples of differing ecological characteristics across the
historical range include a north to south pattern of decreasing annual
precipitation, increasing temperatures for a given elevation, and
increasing maximum elevations (Fites-Kaufman et al. 2007, p. 458).
Vegetation differences also follow this gradient, with whitebark pine
more dominant in the north, but limber pine (Pinus flexilis) becoming
more prominent in the central Sierras and foxtail pine (Pinus
balfouriana) in the south (Fites-Kaufman et al. 2007, 475).
Cumulative or Synergistic Effects
As discussed above, both rodent population numbers and the
incidence
[[Page 41752]]
of droughts affecting snowpack levels have been affected by climate
change in ways that have likely increased coyote numbers in the DPS's
range. It is possible that a gradual increase in coyote numbers during
the mid 1900's was one of the factors causing the DPS's numbers to
drop. Whatever the cause, this drop in population size eventually led
to inbreeding depression, which would have tended to lower the
population size even more. The recent instances of hybridization with
immigrant males from the Great Basin appears to have helped alleviate
the most obvious reproductive impacts of inbreeding depression, but (as
discussed above) risks from inbreeding depression and deleterious
chance events remain so long as the population remains small.
Current Condition Summary
We considered several risk factors involving both environmental and
demographic characteristics affecting the Sierra Nevada DPS. The
available information does not show that any environmental risk factors
are currently threatening the DPS's viability. Increased primary
productivity in high elevation areas due to climate change may have
increased coyote numbers in the fox's range, but we lack evidence of
the extent of increase or of resulting impacts. Important prey species
remain generally available, and we lack evidence of population-level
impacts resulting from habituation.
Several demographic risk factors do appear to constitute current
threats to the viability of the Sierra Nevada DPS. The DPS currently
consists of a single known population of fewer than 50 individuals.
This small size leaves the DPS susceptible to serious impacts from
relatively common stochastic changes in the environment, such as
drought or wildfire. The resiliency and redundancy of the DPS--its
ability to survive and quickly rebound from both common stochastic
changes and more serious catastrophes--is thus low. Since this one
small population is the last representative of a DPS that was once much
larger, the representation of the DPS is also threatened by the
population's small size and susceptibility to extirpation.
The small size of the population has also led to inbreeding
depression in the recent past, which in turn likely contributed to
further contractions in size due to lowered reproductive success.
Population size appears to have begun increasing again since the
arrival and interbreeding of two nonnative male foxes in 2011, but it
is too early to determine if previous impacts from inbreeding
depression have been ameliorated. Additionally, renewed inbreeding
depression remains a possibility so long as the population size remains
low. Thus, inbreeding depression also constitutes an apparent threat to
the resiliency, redundancy, and representation of the DPS.
Finally, the DPS is currently at risk of genetic swamping due to
ongoing interbreeding with nonnative immigrant foxes. The extent of
this risk cannot be precisely determined because it depends on
currently unknown factors, such as the extent to which ongoing
immigration and interbreeding will continue into the future.
Critical Habitat
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary shall designate critical
habitat at the time a species is determined to be an endangered or
threatened species. In the proposed rule (85 FR 862, January 8, 2020),
we determined that designation of critical habitat was not prudent
because the present or threatened destruction, modification, or
curtailment of habitat or range is not a threat to the Sierra Nevada
DPS, and habitat does not appear to be a limiting factor for the
species.
Summary of Comments and Recommendations
In the proposed rule published on January 8, 2020 (85 FR 862), we
requested that all interested parties submit written comments on the
proposal by March 9, 2020. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Fresno Bee. We did not receive any requests for a public hearing. All
substantive information received during the comment period has either
been incorporated directly into this final determination or addressed
below. We did not receive comments from Tribes.
Peer Reviewer Comments
In accordance with our joint policy on peer review published on
July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum
updating and clarifying the role of peer review of listing actions
under the Act, we sought peer review of the SSA report. We sent the SSA
report to five independent peer reviewers and received two responses.
The purpose of peer review is to ensure that our listing determinations
are based on scientifically sound data, assumptions, and analyses. The
peer reviewers have scientific expertise that included familiarity with
the Sierra Nevada DPS and its habitat, biological needs, and threats.
We incorporated the peer reviewers' comments into the final SSA
report (Service 2018, entire). The changes consisted of adjustments and
additions regarding average litter size; certainty regarding the
genetic basis of local adaptations; the importance of coyotes,
leporids, and snowmobiles; the extent to which snowpack level may
affect coyote presence; and the extent to which ongoing hybridization
may constitute a potential benefit or threat. The peer reviewers'
comments did not change our determination that this DPS meets the
definition of an endangered species under the Act.
Federal Agency Comments
(1) Comment: The USFS requested that we work closely with the
Sierra Nevada Red Fox Conservation Advisory Team, an informal recovery
planning organization with representative members from numerous State
and Federal agencies, universities, and environmental organizations.
They noted that the Conservation Advisory Team is currently drafting a
Conservation Strategy for the Sierra Nevada red fox subspecies, and
asked us to update our Sierra Nevada red fox SSA report with new
information from the Conservation Strategy.
Our Response: We participate as members of the Sierra Nevada Red
Fox Conservation Advisory Team and will continue to work closely with
them. We consider the SSA report a living document, and will update it
as substantive new information becomes available and as funding
permits. We will consider all such information as we proceed with
recovery-related actions for the species.
(2) Comment: The USFS stated that our range map and habitat
description do not reflect recent data made available by the Sierra
Nevada Red Fox Working Group, and that the lower elevational limit for
detections is 2,469 m (8,100 ft) rather than 2,743 m (9,000 ft). They
also noted that the range map should show a higher resolution, and it
should show elevation, spatial references, and landmarks.
Our Response: We recognize that the range map included in our
proposed listing rule is not at a high resolution nor as finely
detailed as the commenter would prefer, rather it is just intended to
give the public an understanding of where the DPS generally occurs.
Species
[[Page 41753]]
ranges are not hard and fast boundaries beyond which individuals cannot
go, so range maps are our best attempt to capture where the species is
likely to occur, based on available information. For the Sierra Nevada
DPS, our range map was based both on detections known at this time and
on Sierra Nevada DPS preferred habitat features identified by Cleve et
al. (2011, entire). Our range map was not based on elevational contour
lines; however, we note that the range map includes several areas below
2,469 m (8,100 ft), and so comports with the commenters point about
Sierra Nevada red fox detections.
We have confirmed that all but three Sierra Nevada DPS detections
are within the mapped range. The three foxes not within the mapped
range were found within one fifth of a mile of State Highway 395 (Quinn
in litt. 2020, unpublished data), and presumably reflect use of that
highway as a dispersal corridor. Two of the three were scat detections
(both from the same individual) near the highway in the town of Lee
Vining, and the third was a road-killed individual on State Highway 395
just south of the junction with State Highway 108 (Quinn in litt. 2020,
p. 1). These three detections were at elevations ranging from 2,074 to
2,152 m (6,805 to 7,059 ft) (Quinn in litt. 2020, unpublished data). A
fourth detection below 2,469 m (8,100 ft) (specifically at 2,311 m
(7,581 ft)) occurred in the valley of the West Walker River, just south
of the MWTC and within the mapped range (Quinn in litt. 2020,
unpublished data). All other detections were above 2,469 m (8,100 ft).
More detailed GIS mapping information is available from the
Sacramento Fish and Wildlife Office on request. The range map is also
available on the internet at <a href="https://ecos.fws.gov/ecp">https://ecos.fws.gov/ecp</a>.
(3) Comment: The USFS noted that recent detections of Sierra Nevada
DPS foxes near Dunderberg Peak and Virginia Lakes change the extent of
the gap in detections mentioned in the proposed rule from 77.2 km (48
mi) to 19.3 km (12 mi).
Our Response: The detections are north of the gap, but we have
removed discussion of the gap in order to avoid possible confusion
regarding the estimated range (which does not have gaps) versus the
location of Sierra Nevada DPS detections.
Comments From States
(4) Comment: The CDFW provided information on the Lassen population
of Sierra Nevada red foxes, noting in particular that the population is
highly inbred and so cannot be used for translocations to help solve
genetic issues in the Sierra Nevada DPS until it recovers.
Our Response: Our listing analysis did not extend to the status of
the Lassen population (see the 12-month finding (October 8, 2015, 80 FR
60990) regarding the range of the Southern Cascades DPS), but we will
incorporate this information (and all other pertinent information
received) into our recovery plan for the Sierra Nevada DPS.
Comments From Local Governments
(5) Comment: Two county boards of supervisors requested that, if
the Sierra Nevada red fox is listed as endangered, we seek interagency
coordination and public review prior to completing a recovery plan. One
county board was concerned that a recovery plan would not allow
important fuels reduction or forest health projects to proceed.
Our Response: While we explain further below that recovery plans
are not intended, nor do they have the regulatory force, to disallow
projects, we first note that fuels reduction or forest health actions
typically take place below the elevational range of the Sierra Nevada
DPS.
Recovery plans delineate reasonable actions that are determined
necessary for the recovery and protection of listed species. Recovery
plans do not obligate other parties to undertake (or refrain from
undertaking) specific actions, and are not regulatory documents. When
developing recovery plans, our process includes seeking public comment
prior to finalizing them. We also coordinate with stakeholders and
interested parties during the recovery planning process. We also
participate in the Sierra Nevada Red Fox Working Group (discussed under
Summary of Existing Regulatory Measures and Voluntary Conservation
Efforts, above), which is an interagency organization.
(6) Comment: One county board of supervisors noted that snowmobile
impacts in the Bridgeport Winter Recreation Area may be minimal due to
lack of trail grooming, minimum snow depth requirements, date
restrictions on use, and permit requirements for snowmobile users.
These points were also raised by the USFS.
Our Response: We acknowledge the information provided indicates
snowmobiling in the BWRA is unlikely to have population-level impacts
on Sierra Nevada DPS foxes. We will consider any additional information
that may come to light when writing the recovery plan for the species,
and as otherwise necessary in consultation with Federal agencies.
(7) Comment: Two county boards of supervisors requested input into
any restrictions on snowmobile operations that might result if the
species is listed as endangered.
Our Response: The USFS will work with us in accordance with Act
requirements (16 U.S.C. 1536(a)(2)) to ensure that their policies do
not jeopardize the species. Any changes to current land management
practices will involve public comment as required by applicable
environmental laws.
(8) Comment: A county board of supervisors stated that there is not
enough information regarding Sierra Nevada DPS viability to know
whether listing would help the species thrive.
Our Response: The Act requires our listing determination to be
based solely on whether the best scientific and commercial information
indicates the species meets the definitions of an endangered or
threatened species (see Determination section, below) (16 U.S.C.
1533(b)(1)(A); 50 CFR 424.11(b)). The purpose of listing is to provide
the regulatory protections needed to prevent further decline on a
trajectory toward extinction. Although the listing itself is not
intended to ``help the species thrive,'' subsequent components of the
Act (e.g., recovery plans) may provide the necessary mechanisms for the
species to thrive and recover.
(9) Comment: One county board of supervisors noted the large degree
of variation that exists in our initial estimate of 10 to 50 adult
Sierra Nevada DPS foxes in the population, and also noted the
possibility of other undiscovered populations. The board stated that
knowledge of population numbers is insufficiently precise to support
listing.
Our Response: We have revised population estimates in this final
rule to an estimate of 18 to 39 individuals based on additional
information that has been made available through the public comment
process (Sacks and Quinn 2020, p. 1; CSERC et al. 2020, pp. 2-3; CDFW
2020, pp. 3-4; See Demographics, above). This estimate includes the
results of camera trapping and scat searches throughout the DPS's
range. Additionally, as discussed under Deleterious Effects Associated
With Small Populations, the Sierra Nevada DPS appears to have been
subject to inbreeding effects in the recent past, which is consistent
with known information on small population size effects (Quinn et al.
2019, pp. 559-560, 571; Sacks and Quinn 2020, p. 2). Therefore, the
best available scientific and commercial information indicates that
fewer than 50 individuals currently remain in the DPS. While the exact
[[Page 41754]]
number remains unknown, and is also subject to change with new births
and deaths, it is well below population levels that would provide
resiliency, redundancy, and representation to the population. We
discuss this issue in greater depth above, under Deleterious Effects
Associated With Small Populations.
(10) Comment: One county board of supervisors indicated concern
that listing would interfere with activities such as hiking and
snowmobiling. They asked for an analysis of potential economic impacts
prior to listing, and requested an opportunity to review any economic
analyses conducted.
Our Response: As described below in Determination, the Act requires
us to determine whether a species is endangered or threatened ``solely
on the basis of the best scientific and commercial data available'' (16
U.S.C. 1533(b)(1)(A); 50 CFR 424.11(b)). We are not allowed to consider
economic impacts in our determination on whether to list a species
under the Act. However, at this time we have no information to indicate
that public hiking or snowmobile use in accordance with applicable
regulations is impacting the Sierra Nevada DPS.
Public Comments
(11) Comment: One commenter noted that snowmobiles would be allowed
in two near-natural roadless areas (Pacific Valley and Eagle) in the
Stanislaus National Forest within the Sierra Nevada DPS's range if a
proposed change to the Forest Plan is approved. The commenter indicated
that compaction of snow by snowmobiles could increase ease of access to
a given area for coyotes, which do not move over uncompacted snow as
efficiently as Sierra Nevada DPS foxes. The commenters also stated that
snow compaction may impact subnivean (under-snow) rodent populations by
lowering the temperature and decreasing the oxygen content in the
compacted area. The commenter stated that this is one of the few types
of potential impacts to the Sierra Nevada DPS that government
institutions have the power to prevent.
Our Response: The potential change to existing snowmobile
restrictions in the areas mentioned is part of the best available
scientific and commercial information we must consider for our listing
determination (16 U.S.C. 1533(b)(1)(A)). The best available information
does not suggest that snowmobiling and its potential to compact snow is
a risk factor to the DPS, although we note that the resulting impacts
associated with the proposal depend on several variables, including the
likelihood that the proposed changes would be adopted, the number of
snowmobiles allowed and Sierra Nevada DPS foxes in the two areas, and
the extent of resulting snow compactions. This, at this time, the best
available information does not suggest that this proposed regulatory
change constitutes a threat to the population. However, because we are
listing the Sierra Nevada DPS as an endangered species based on other
information (see Risk Factors Affecting the Sierra Nevada DPS of Sierra
Nevada Red Fox, above), we anticipate consulting with the USFS under
section 7 of the Act to minimize effects should that agency change
snowmobile regulations, thus insuring the continued existence of the
species is not jeopardized (as required by the Act under 16 U.S.C.
1636(a)(2)).
(12) Comment: One commenter stated that poachers take more Sierra
Nevada DPS foxes than recorded, and also indicated that Wildlife
Services personnel (wildlife pest and predator removers from the Animal
and Plant Health Inspection Service) impact the species. Another
commenter stated that indiscriminate use of m-44 cyanide anti-predator
devices threatens the Sierra Nevada DPS. No further information was
provided by either commenter regarding these statements.
Our Response: Our review of the best available scientific and
commercial information does not indicate these sources are a threat to
the DPS. If the commenters, or other interested parties, have
additional information that might indicate otherwise, we would
appreciate receiving it.
(13) Comment: One commenter asked us to work with other agencies to
recover the Sierra Nevada DPS and restore its role in the ecosystem.
The commenter also suggested we seek additional information regarding
why the Sierra Nevada DPS appears to have such low population numbers.
Our Response: We are working with State and Federal agencies,
academics, environmental groups, and other interested parties as part
of the Sierra Nevada Red Fox Working Group to develop a conservation
strategy and recovery plan. We also will consult with Federal agencies
under section 7 of the Act to avoid actions that jeopardize the
species, and will work with non-Federal agencies and individuals who
wish to initiate recovery actions or habitat management plans in
accordance with section 10 of the Act.
Regarding reasons for the current small size of the population, new
information submitted by commenters, based on research supported in
part by us, shows that the population was likely inbred prior to the
arrival of immigrants from the Great Basin (see Deleterious Effects
Associated With Small Populations, above). Inbreeding depression may
therefore be the primary reason the population has been so small
recently. It remains unclear, however, when and why the population
became so low that inbreeding depression became an issue.
(14) Comment: One commenter stated that the Sierra Nevada DPS is
threatened by logging and farming of livestock and fish. The commenter
also stated that Sierra Nevada DPS numbers had diminished to as low as
10 to 15 in the 1990s, and that no action was taken at that time.
Our Response: In our 12-month finding published on October 8, 2015
(80 FR 60990), we investigated logging, livestock grazing, and fish
stocking as potential threats to Sierra Nevada red fox in both the
Sierra Nevada and Southern Cascades DPSs. The best available scientific
and commercial information indicates that these activities have more
potential for negative impacts to the Southern Cascades DPS, as foxes
in the Sierra Nevada DPS typically occur at elevations above those used
for grazing or logging. Additionally, as discussed in our 12-month
finding (80 FR 60990), fish stocking might affect foxes in the Southern
Cascades DPS because the stocked fish can potentially transmit a
parasite deadly to canines that eat them; the parasite has not been
found within the range of the Sierra Nevada DPS.
The best available information does not include the population size
of the Sierra Nevada DPS in the 1990s. This population was rediscovered
by scientists in 2010 (Statham et al. 2012, p. 122), and a rough
population estimate (of 14 to 50 adults) was not available until 2015
(Sacks et al. 2015, p. 14).
(15) Comment: One commenter mentioned that according to an Oregon
Department of Fish and Wildlife website (i.e., <a href="https://www.oregonconservationstrategy.org/strategy-species/sierra-nevada-red-fox/">https://www.oregonconservationstrategy.org/strategy-species/sierra-nevada-red-fox/</a>), fires are a potential threat to the species, while actions that
promote recruitment and maintenance of high-elevation conifer forests
are beneficial. The commenter also mentioned that radio-collaring foxes
to learn more about them would be beneficial.
Our Response: The Oregon website information is specific to the
Southern Cascades DPS, as opposed to the Sierra Nevada DPS that is
addressed in this rule. We agree that available information on the
Southern Cascades DPS may be helpful to consider when
[[Page 41755]]
we develop a recovery plan. For example, we agree that radio-collaring
can provide important information, and at least one fox in the Sierra
Nevada DPS has been radio-collared since publication of our proposed
listing rule (Stock and Eyes 2017, p. 21). We will take this and other
information into consideration when we coordinate with partners and
species experts, including the Sierra Nevada Working Group, to develop
a conservation strategy for the entire subspecies and a recovery plan
for the Sierra Nevada DPS.
(16) Comment: One commenter indicated concern regarding the impact
of listing the Sierra Nevada DPS on Federal timber sales conducted for
fire management.
Our Response: We do not expect listing the Sierra Nevada red fox to
have a significant impact on Federal timber sales conducted for fire
management because most such sales are outside the range of the DPS.
Most of that range is designated wilderness, where logging is not
permitted. Most is also in alpine and subalpine habitats, where the
scattered tree stands, thin soils, and small amounts of litter
accumulation produce a relatively low fire risk (Fites-Kaufman et al.
2007, p. 475). In contrast, most Federal and state fuels reduction
efforts are conducted at lower elevations closer to urban areas (van
Wagtendonk et al. 2018, p. 271). Finally, any fuel reduction projects
that do occur in the range of the DPS are likely to take place during
summer months, after most of the snow has melted, and are thus less
likely to impact springtime denning and pup raising. For any timber
sales within the range of the Sierra Nevada DPS, we will coordinate
with the Federal action agency through section 7 consultations to
ensure projects minimize effects to the species while meeting fuels
reduction goals.
(17) Comment: One commenter stated that existing regulatory
mechanisms, including hunting and trapping restrictions and USFS
sensitive species status, are adequate to protect the Sierra Nevada
DPS.
Our Response: The Sierra Nevada DPS faces several threats that
existing regulatory mechanisms are unlikely to adequately address,
including inbreeding depression, loss of genetic distinctiveness
through hybridization, impacts of deleterious events to small
populations, and competition with coyotes. Existing regulatory
mechanisms include:
<bullet> Identification of the Sierra Nevada red fox (including the
Sierra Nevada DPS) as a sensitive species by the USFS;
<bullet> Inclusion of Sierra Nevada red fox protection measures in
the Standards and Guidelines for the Sierra Nevada Forest Plan
Amendment;
<bullet> Prohibition of hunting and trapping in Yosemite;
<bullet> Management of Yosemite and other national parks to
``preserve fundamental physical and biological processes, as well as
individual species, features, and plant and animal communities'' (NPS
2006, p. 26);
<bullet> Completion of an INRMP for the MWTC, with provisions to
minimize disturbance or habituation of Sierra Nevada DPS foxes;
<bullet> Listing of the Sierra Nevada red fox as a threatened
species under the California Endangered Species Act, which prohibits
``take'' of protected species; and
<bullet> Protection of red foxes throughout California from hunting
and trapping (14 C.C.R. 460).
Many of these protections have been in place for decades throughout
California, but the Sierra Nevada DPS has nevertheless experienced low
population numbers, currently estimated at 18 to 39 individuals (see
Demographics, above).
Determination of Sierra Nevada DPS Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of ``endangered species'' or
``threatened species.'' The Act defines an ``endangered species'' as a
species that is ``in danger of extinction throughout all or a
significant portion of its range,'' and a ``threatened species'' as a
species that is ``likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range.'' The Act requires that we determine whether a species meets the
definition of ``endangered species'' or ``threatened species'' because
of any of the following factors: (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) The inadequacy of
existing regulatory mechanisms; or (E) Other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
The Sierra Nevada DPS faces the following threats: Deleterious
impacts associated with small population size (including inbreeding
depression and increased susceptibility to deleterious stochastic
events) (Factor E), genetic swamping due to over-hybridization with
nonnative red fox (Factor E). Existing regulatory mechanisms and
conservation efforts do not address the threats to the Sierra Nevada
DPS to the extent that listing the DPS is not warranted.
After evaluating these threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, and
consideration of comments and new information received (including
updated population estimate information), we continue to determine that
the Sierra Nevada DPS of the Sierra Nevada red fox is presently in
danger of extinction throughout its range, and that endangered status
is therefore appropriate. The threats discussed above, particularly
threats associated with small population size, leave the DPS in danger
of extinction throughout all of its range at the present time rather
than likely to become endangered in the foreseeable future. The DPS
thus meets the definition of an endangered species rather than a
threatened species.
The DPS is likely to face additional potential threats in the
future. Climate projections indicate a continuing loss of snowpack
depth (Curtis et al. 2014, p. 9) and of the general subalpine habitat
to which the Sierra Nevada DPS has adapted (Lenihan et al. 2008, pp. S
219, S 221). This will likely lead to increased numbers of coyotes in
high-elevation areas, and to increased competition between coyotes and
Sierra Nevada DPS foxes. White-tailed jackrabbit populations, an
important food source, appear to be declining (Simes et al. 2015. p.
506), and, if the trend continues, the resiliency of the Sierra Nevada
DPS is likely to suffer. Numbers of both white-tailed jackrabbit and
snowshoe hare also tend to fluctuate (Simes et al. 2015, pp. 493, 505),
which would tend to exacerbate the negative effects of deleterious
chance events if those events coincide with periods of prey scarcity.
As discussed above, recent interbreeding with immigrants from the Great
Basin has helped alleviate low pup production that had resulted from
inbreeding depression. However, the population remains small so renewed
inbreeding depression remains a threat, as does the increased
susceptibility of small populations to deleterious stochastic events.
Our analysis of the DPS's current and future environmental and
demographic conditions, as well as consideration of existing regulatory
mechanisms and continued coordination with partners on conservation
efforts (as discussed under Available Conservation Measures, below),
show that the factors used to determine the resiliency, representation,
[[Page 41756]]
and redundancy for the Sierra Nevada DPS will likely continue to
decline. Thus, after assessing the best available scientific and
commercial information, we determine that the Sierra Nevada DPS of the
Sierra Nevada red fox is in danger of extinction throughout all of its
range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Sierra Nevada DPS of Sierra
Nevada red fox is in danger of extinction throughout all of its range,
and accordingly, did not undertake an analysis of any significant
portions of its range. Because we have determined that this DPS
warrants listing as endangered throughout all of its range, our
determination is consistent with the decision in Center for Biological
Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), in which
the court vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant Portion of Its Range'' in the Endangered
Species Act's Definitions of ``Endangered Species'' and ``Threatened
Species'' (79 FR 37578; July 1, 2014) that provided the Services do not
undertake an analysis of significant portions of a species' range if
the species warrants listing as threatened throughout all of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Sierra Nevada DPS of Sierra Nevada red
fox meets the definition of an endangered species. Therefore, we are
listing this DPS as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="http://www.fws.gov/endangered">http://www.fws.gov/endangered</a>), or from our Sacramento Fish and
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and tribal lands.
Following publication of this final rule, funding for recovery
actions will be available from a variety of sources, including Federal
budgets, State programs, and cost-share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of California
(and Nevada if surveys indicate the species occurs there) will be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the DPS. Information on our grant
programs that are available to aid species recovery can be found at:
<a href="http://www.fws.gov/grants">http://www.fws.gov/grants</a>.
Please let us know if you are interested in participating in
recovery efforts for the Sierra Nevada DPS of Sierra Nevada red fox.
Additionally, we invite you to submit any new information on this
species whenever it becomes available and any information you may have
for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require
consultation as described in the preceding paragraph include: Issuance
of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the
U.S. Army Corps of Engineers; construction and maintenance of roads or
highways by the Federal Highway Administration; and management actions
or activities taken by the NPS, USFS, or Department of Defense that
occur in the high elevation habitat of the DPS and that may affect
individual DPS foxes.
[[Page 41757]]
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
For scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. There are also certain statutory exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Normal agricultural and silvicultural practices, including
pesticide use;
(2) Vehicular travel within the range; and
(3) Hiking and backpacking.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
Activities that the Service believes could potentially harm the
Sierra Nevada DPS individuals and result in ``take'' include, but are
not limited to:
(1) Unauthorized pursuit, capture, or injury of members of the
species;
(2) Unauthorized destruction or modification of den sites;
(3) Unauthorized feeding of members of the species, or unauthorized
food disposal within the species' range, in a manner likely to cause
habituation;
(4) Rodenticide applications within the species' range in violation
of label restrictions;
(5) Activities that, due to negligence or intent, cause wildfire
within the species' range; and
(6) Unauthorized importation into the species' range of nonnative
foxes or coyotes.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Sacramento
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act, need not be prepared in connection with
listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
In development of the SSA, the proposed and final listing rules,
and recent efforts in developing a conservation strategy for the
species, we coordinated with Tribes by sending them notification
letters. The Tribes we coordinated with were those with lands in the
general area of the DPS (noting that no Tribal lands actually occur
within the range of the DPS). We did not receive comments from Tribes.
We will continue to consult on a government-to-government basis with
Tribes as necessary.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a> and upon request from the
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this final rule are the staff members of the
Fish and Wildlife Service's Species Assessment Team, and the Sacramento
and Reno Fish and Wildlife Offices.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11 in paragraph (h) by adding an entry for ``Fox,
Sierra Nevada red [Sierra Nevada DPS]'' to the List of Endangered and
Threatened Wildlife in alphabetical order under Mammals to read as set
forth below:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 41758]]
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Fox, Sierra Nevada red [Sierra Vulpes vulpes U.S.A. (CA)-- E 86 FR [Insert Federal
Nevada DPS]. necator. Sierra Nevada. Register page where
the document begins],
8/3/2021.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
Martha Williams,
Principal Deputy Director Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-16249 Filed 8-2-21; 8:45 am]
BILLING CODE 4333-15-P
</pre></body>
</html>Indexed from Federal Register on August 3, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.