Comment on FR Doc # E8-30110

GOVERNOR Bill Richardson DIRECTOR AND SECRETARY TO THE COMMISSION Tod Stevenson Robert S. Jenks, Deputy Director STATE OF NEW MEXICO DEPARTMENT OF GAME & FISH One Wildlife Way Post Office Box 25112 Santa Fe, NM 87504 Phone: (505) 476-8101 Fax: (505) 476-8128 Visit our website at www.wildlife.state.nm.us For information call: 505/476-8000 To order free publications call: 1-800-862-9310 STATE GAME COMMISSION Jim McClintic, Chairman Albuquerque, NM Sandy Buffett, Vice-Chairman Santa Fe, NM Dr. Tom Arvas, Commissioner Albuquerque, NM Alfredo Montoya, Commissioner Alcalde, NM Kent A. Salazar, Commissioner Albuquerque, NM M.H. “Dutch” Salmon, Commissioner Silver City, NM Leo V. Sims, II, Commissioner Hobbs, NM February 17, 2009 Public Comments Processing Attn: FWS-R6-ES-2008-0088 Division of Policy and Directives Management U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, Suite 222 Arlington, VA 22203 Re: 90-Day Finding on Petition to Change the Listing Status of the Canada Lynx; NMDGF Doc. No. 12397 Dear Sirs: The New Mexico Department of Game and Fish (Department) has reviewed the 18 December 2008 Federal Register document, in which the U.S. Fish and Wildlife Service (Service) announce a 90-day finding on a petition to revise the listing status of the Canada lynx (Lynx canadensis) as threatened under the Endangered Species Act of 1973 (Act), as amended, to include the mountains of north-central New Mexico. The Service has found that the petition presents substantial scientific or commercial information indicating that changing the listing status of the contiguous United States Distinct Population Segment (DPS) of Canada lynx to include New Mexico may be warranted. With the publication of this notice, the Service is initiating a further review in response to the petition. The Service is required to seek additional information from the public, other concerned governmental agencies, tribal entities, industry, or any other interested parties concerning the status of the lynx. The Service is seeking information regarding the species’ historical and current status and distribution, its biology and ecology, and threats to the species and its habitat. Submissions stating support or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that the determination shall be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the review, the Service will issue a 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act. As stated on page 76993 of the Federal Register announcement, lynx were listed in 2000 within what was determined to be the contiguous United States Distinct Population Segment (DPS), which included the known current and historical range of the lynx. The DPS range included the States of Colorado, Idaho, Maine, Minnesota, Montana, New Hampshire, New York, and Washington, and also areas that could support dispersers, i.e., portions of Michigan, Oregon, Utah, Vermont, Wisconsin, and Wyoming. Other areas outside of boreal forest, where dispersing lynx had only been sporadically documented, were not considered to be within the range of the lynx, because they were deemed incapable of supporting lynx. These areas included Connecticut, Indiana, Iowa, Massachusetts, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Dakota, and Virginia. New Mexico was not included in this list of states because there are no known records of occurrence of lynx in New Mexico, so it was not considered current or historical range of the species. In addition, the Service did not conduct a review of the potential habitat in New Mexico. The Service did not consider lynx recently released in Colorado that dispersed south of the state line as sufficient reason to extend the DPS area into New Mexico. The petitioners challenge these assumptions and provide information to support their assessment that lynx should be listed in New Mexico (references therein by Ruediger et al. 2000; Frey 2006; Frey 2003; Malaney 2003; Malaney and Frey 2005; BISON 2003; Checklist 2003; and Shenk 2001, 2005a, 2005b, 2006, 2007). The petitioners indicate that the Southern Rockies include high elevation, mountainous habitat that extends into north-central New Mexico. They indicate that, although no known historical occurrence records of lynx in New Mexico exist (Frey 2006, p. 20), the Service should carefully review the forest zones in New Mexico to ascertain whether suitable habitat exists. Furthermore, the petitioners discuss why the final listing rule is not logical and is contrary to the purpose and goals of the Act, which include conserving ecosystems upon which species depend. The petitioners indicate that lynx travelling into New Mexico could be legally shot and hunted, and that this is contrary to the purpose of the Act. Therefore, based on these arguments and others, the Service has found that the petition presents substantial scientific or commercial information indicating that changing the listing status of lynx to include the mountains of north-central New Mexico in the threatened contiguous United States Distinct Population Segment may be warranted. The Department provides the following information to assist the Service in making a determination of the appropriateness of including the mountains of north-central New Mexico in the lynx U.S. DPS. Status of Canada lynx in New Mexico Because no records of occurrence of lynx are known for New Mexico, Canada lynx is not considered a native species in New Mexico by the Department and is not recognized as a furbearer in the state. As such, the species is not afforded any protection or legal status under the New Mexico State statutes. The Department does advise trappers to release any lynx captured in traps set for bobcat or other legally harvestable furbearers, or to contact the Department if the animal is killed or injured. To date, we have received no reports of any lynx trapped in New Mexico. We also have not discovered any new evidence to indicate that lynx were historically present in the state. Habitat The Center for Applied Spatial Ecology (CASE) at New Mexico State University, through the Southwest Regional Gap Analysis Project (SWReGAP), has created predicted distribution maps for lynx and snowshoe hare (Lepus americanus) based on modeling habitat associations using geographical information system procedures. The respective predictive distribution maps for both species can be found at the following links: http://fws-nmcfwru.nmsu.edu/swregap/habitatreview/Models/180585.pdf http://fws-nmcfwru.nmsu.edu/swregap/habitatreview/Models/180112.pdf We have included copies of these maps with these comments for your review. The lynx predictive habitat map provided by CASE does not include New Mexico. Decision criteria that are part of the modeling process excluded New Mexico because lynx were not known to have occurred within New Mexico within the last 5 generations of the species (Ken Boykin, Center for Applied Spatial Ecology, pers. comm.). We also note that the snowshoe hare predictive habitat map includes the Jemez Mountains, although no snowshoe hare specimen records have been collected there. One observation record exists, but may be a case of misidentification (Malaney 2003, Frey and Malaney 2006). We have not quantified snowshoe hare habitat in northern New Mexico as identified in this model, but this could easily be done. The Service could consider comparing New Mexico snowshoe hare habitat as depicted in this model to actual reintroduced lynx occurrence data gathered by CDOW to determine how closely dispersing lynx have associated with snowshoe hare habitat in New Mexico. A cursory examination of the data presented in the Shenk 2007 (page 29) do not appear to show a strong interdependence between the tracking locations and the predicted snowshoe hare distribution in the SWReGAP predictive distribution map referenced above. In fact, most lynx locations in New Mexico appear to be outside of the predicted snowshoe hare distribution. Because New Mexico was not initially included in the lynx DPS, we have not had access to routine tracking information collected by the Colorado Division of Wildlife (CDOW) that could provide additional information on habitat selection of reintroduced lynx that have dispersed into New Mexico. Essentially, all information that we are aware of on lynx that have occurred in New Mexico since 1999, the first year they were released in Colorado, has been provided to us by CDOW, and can be found in the annual CDOW Lynx Wildlife Research Reports. As stated in the most recent Lynx Wildlife Research Report (for the period July 2007 to June 2008), no reproduction has occurred in New Mexico. However, the report further states that, although no reproduction has been documented in New Mexico or Utah the available information regarding the highest intensity of use and the continuous presence of lynx within these states for over six years suggests the potential for year-round residency of lynx and reproduction. Year-round residency without reproduction does not constitute a sustainable population. The report also documents 14 mortalities of reintroduced lynx that have occurred in New Mexico since the start of the reintroduction project. At present, it is probable that northern New Mexico may be functioning as a population sink for lynx dispersing from southwestern Colorado. Based on information we have received from CDOW, mortality in New Mexico is possibly due to a combination of man-made causes (e.g., shooting, vehicle impact) and natural causes (e.g., starvation). Prey availability Page 76992 of the Federal Register document states that because lynx population dynamics, survival and reproduction are closely tied to snowshoe hare availability, snowshoe hare habitat is a component of lynx habitat. Lynx generally concentrate their foraging and hunting activities in areas where snowshoe hare populations are high. Frey and Malaney (2006), during 2 summers of field surveys in montane and subalpine coniferous forests in the Sangre de Cristo, San Juan and Jemez Mountains, found snowshoe hares to be relatively uncommon and restricted to subalpine coniferous forest (dominated by subalpine fir (Abies lasiocarpa) and Engelmann spruce (Picea engelmannii)), which occurs just below timberline at 3,000 to 3,650 meters elevation. Regarding snowshoe hare densities in northern New Mexico, the following is quoted from Malaney (2003): “A mark-recapture study resulted in the capture of 61 different snowshoe hare over five, 10-day trapping periods during summer 2002. There was an additional 9 new individuals captured during an 8-day trapping period in spring 2003. There was a high density of 0.767 hares/ha during the July trapping period. However, even this density was low in comparison with more northern populations. Excluding hares that were captured in only one or two trap stations, home ranges varied from 0.40 – 3.0 ha (mean = 1.10 ha for adults and 1.93 ha for juveniles/subadults). Adult female snowshoe hare had a mean litter size of 3.78 (range 1 – 6) with 3.2 (range 3 – 4) litters per female. Based on Jolly-Seber estimates for over-winter survival, juvenile/subadults had a survival estimate of 0.481 whereas the adult survival estimate was 0.778. Natality and survival estimates were similar to more northern latitudes. New Mexico snowshoe hare had significantly poorer physical body condition than Yukon individuals. Compared to northern populations, snowshoe hare in New Mexico exhibited lower densities, smaller home ranges, poorer body condition, and syntopy with mountain cottontail. Natality and survival were similar to more northern populations. These results supported the hypothesis that habitat fragmentation is a major determinant of population demographics of extreme southern snowshoe hare populations…” The current marginal status of snowshoe hare populations in New Mexico is likely to be a function of their location at the southern extremity of the species’ range. The potential impacts of climate change include warming and drying of the southwest. If these impacts occur, existing snowshoe habitat will further deteriorate in quality and contract in extent rendering northern New Mexico less and less suitable for year-round lynx occupation. In summary, we reiterate that there are no occurrence records from New Mexico that would suggest that Canada lynx was a native species here. However, based on available habitat and prey, it is plausible that a reproducing population may have occurred in New Mexico, but there is no conclusive proof of this. Although snowshoe hare, the preferred prey species, does occur in suitable habitats in New Mexico, research has shown these populations to be less dense and not as healthy as in Colorado (Malaney 2003). We have no data to suggest the potential for a successful reproducing population of lynx in northern New Mexico. Furthermore, we feel that the potential persistence of lynx pairs in New Mexico would be dependant on surplus lynx in the reintroduction areas in southwestern Colorado. These would serve as a source of dispersing animals to maintain pairs in New Mexico, especially during periods of prey base decline, such as during droughts. Without further research, we cannot determine whether a reproducing population of Canada lynx in New Mexico could ever be an important factor in maintaining a viable metapopulation in Colorado. The Department has concerns that the Service is considering a change of the listing status of the lynx in New Mexico when there is no credible evidence that the state was ever part of the species’ range. Our review of the historic and current status of lynx in New Mexico indicates that the USFWS original delineation of viable habitat, that did not include New Mexico, is still valid. Potential viable habitat and availability of snowshoe hare, the lynx’s primary prey base, do not support extending threatened status to New Mexico. We appreciate the opportunity to comment on this 90-day finding by the Service. Should you have any questions regarding our comments, please contact Mark Watson, Habitat Specialist, of my staff, at (505) 476-8115, or <mark.watson@state.nm.us>. Sincerely, Tod W. Stevenson Director MW/TWS CC: Wally Murphy (Ecological Services Field Supervisor, USFWS) Bob Jenks (Deputy Director, NMGF) Lief Ahlm (Northeast Area Operations Chief, NMGF) Brian Gleadle (Northwest Area Operations Chief, NMGF) Rick Winslow (Carnivore Biologist, NMGF) Scott Draney (Northeast Area Habitat Specialist, NMGF) Mark Olson (Northwest Area Habitat Specialist, NMGF) Mark Watson (Conservation Services Habitat Specialist, NMGF) Literature Cited Frey, J. K. 2003. Distributional records and natural history notes for uncommon mammals on the Llano Estacado of eastern New Mexico. New Mexico Journal of Science 43, 1-24. Frey, J. K. 2006. Inferring species distributions in the absence of occurrence records: An example considering wolverine (Gulo gulo) and Canada lynx (Lynx Canadensis) in New Mexico. Biological Conservation 130:16-24. Frey, J. K., and J. Malaney. 2006. Snowshoe hare (Lepus americanus) and mountain cottontail (Sylvilagus nuttallii) biogeography at their southern range limit. Journal of Mammalogy 87(6):1175-1182. Malaney, J. L. 2003. Distribution, habitat characteristics, and population demographics of snowshoe hare (Lepus americanus) at the extreme southern edge of its geographic range. M. S. thesis, Eastern New Mexico University, Portales. Malaney, J. L., and J. Frey. 2006. Summer habitat use by snowshoe hare and mountain cottontail at their southern zone of sympatry. Journal of Wildlife Management 70:877-883. Ruediger, B. J. Claar, S. Gniadek, B. Holt, L. Lewis, S. Mighton, B. Naney, G. Patton, T. Rinaldi, J. Trick, A. Vandehey, F. Wahl, N. Warren, D. Wenger, A. Williams. 2000. Canada lynx conservation assessment and strategy, second edition. USDA Forest Service, USDI Fish and Wildlife Service, USDI Bureau of Land Management, USDI National Park Service. Forest Service Publication #R1- 00-53, Missoula, MT. Shenk, T. M. 2007. Wildlife Research Report –Colorado Division of Wildlife July 2006 – June 2007. 38 pp.