2000 Federal Register, 6332; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: February 9, 2000 (Volume 65, Number 27)]
[Rules and Regulations]
[Page 6332-6338]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe00-13]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE55

Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Plant Thlaspi californicum (Kneeland Prairie
Penny-Cress) From Coastal Northern California

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 status pursuant to the Endangered Species Act of 1973, as
amended (Act), for Thlaspi californicum (Kneeland Prairie penny-cress).
Thlaspi californicum is known only from Kneeland Prairie in Humboldt
County, California, where it grows in coastal prairie on serpentine
outcrops. We consider the occurrences of T. californicum reported from
Mendocino County to be T. montanum, a widely distributed species.
Habitat loss, potential road realignment, and proposed airport
expansion activities imperil the continued existence of T.
californicum. The restricted range of this species, limited to a single
population, increases the risk of extinction from naturally occurring
events such as fire. This action implements the protection of the Act
for this plant species.

DATES: This rule is effective on March 10, 2000.

ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, Suite W2605, Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp or Jan Knight,
Sacramento Fish and Wildlife Office (see ADDRESSES section) (telephone
number 916/414-6645; facsimile 916/414-6710).

SUPPLEMENTARY INFORMATION:

Background

The single known population of Thlaspi californicum (Kneeland
Prairie penny-cress) is found on serpentine soils at a coastal prairie
in Humboldt County, California. Serpentine soils are derived from
ultramafic rocks (rocks with unusually large amounts of magnesium and
iron) such as serpentinite, dunite, and peridotite, which are found in
discontinuous outcrops in the Sierra Nevada and Coast Ranges of
California from Santa Barbara County to Humboldt County. The chief
constituent of the parent rock is a variant of iron-magnesium silicate.
Most serpentine soils are formed in place over the parent rock and are,
therefore, shallow, rocky, and highly erodible. Serpentine soils,
because of the parent material, tend to have high concentrations of
magnesium, chromium, and nickel and low concentrations of calcium,
nitrogen, potassium, and phosphorus (Kruckeberg 1984). Serpentine soils
alter the pattern of vegetation and plant species composition nearly
everywhere they occur. While serpentine soils are inhospitable for the
growth of most plants, some plants are wholly or largely restricted to
serpentine substrates (Kruckeberg 1984).
Sereno Watson (1882) described Thlaspi californicum based on a
collection made by Volney Rattan from Kneeland Prairie at 760 meters
(m) (2,500 feet (ft)) elevation in Humboldt County, California. Payson
(1926) maintained it as a full species in his monograph of the genus,
whereas it was referred to as T. alpestre var. californicum in Jepson's
(1925) manual and T. glaucum ssp. californicum by Munz (1959). Holmgren
(1971) assigned the name Thlaspi montanum var. californicum and gave
its range as Kneeland Prairie (including a 1952 specimen from a
serpentine rockpile toward Ashfield Butte). She noted that the plant
had last been collected in 1962. Rollins (1993a, 1993b) has elevated it
to a full species--Thlaspi californicum.
Thlaspi californicum is a perennial herb in the mustard family
(Brassicaceae) that grows from 9.5 to 12.5 centimeters (cm) (3 to 6
inches (in)) tall, with a basal cluster of leaves that develops at the
base of the plant prior to the flowering stage. The margins of the
basal leaves range from entire to toothed. The white flowers have
strongly ascending pedicels (flower stalks). The fruit is a sharply
pointed silicle (a short fruit typically no more than 2 to 3 times
longer than wide). Thlaspi californicum flowers from May to June.
Characteristics that separate T. californicum from T. montanum include
the orientation of the pedicel, shape and notching of the fruit, and
length/width ratio of the fruit. Thlaspi montanum has pedicels
perpendicular to the stem, not strongly ascending, and the silicles are
either truncate or shallowly notched, but not as acute at the apex as
they are in T. californicum (Meyers 1991).

[[Page 6333]]

Rollins (1993a, 1993b) and Holmgren (1971) considered Thlaspi
californicum to occur only at Kneeland Prairie. Smith and Wheeler
(1991), in their ``Flora of Mendocino County,'' reported two additional
occurrences of T. californicum located on Mendocino National Forest in
Mendocino County. These sites have been examined by David Isle,
Mendocino National Forest botanist; Dave Imper, Environmental
Specialist with SHN Consulting Engineers and Geologists; and Service
staff. In addition, all of the herbarium specimens for T. californicum
and T. montanum at Humboldt State University, including those collected
in Mendocino County, have been examined by Imper and Service staff. The
only collections considered by Imper and the Service to be T.
californicum are from Kneeland Prairie in Humboldt County (Imper 1997;
Larry Host and Kirsten Tarp, U.S. Fish and Wildlife Service (USFWS),
pers. comms., 1997). Plants from Blue Banks and near the Spruce Grove
campground on the Mendocino National Forest have pedicels that are
perpendicular to the stem and silicles that are truncate and notched,
characteristic of T. montanum. Additionally, the habitat and elevation
are different from Kneeland Prairie. Other herbarium specimens, housed
at the Humboldt State University herbarium and collected from Blue
Banks and from Spruce Grove campground, are identified as T. montanum.
McCarten and Rogers (1991) did not find any T. californicum in their
habitat management study of rare plants and communities associated with
serpentine soils on the Mendocino National Forest. The Mendocino
National Forest botanist and the botanical consultant for Humboldt
County concurred with this conclusion (Imper 1997; David Isle,
botanist, Mendocino National Forest, pers. comm., 1997; L. Host and K.
Tarp, pers. comms., 1997).
The California Natural Diversity Database (CNDDB) includes one
occurrence for Thlaspi californicum based on Constance & Rollins'
collection #2877 from 1942 (5 mi S of Hoopa Valley), housed at the
Humboldt State University herbarium. The specimen had been annotated as
T. californicum in 1976 by T. Nelson, then the herbarium's curator. A
duplicate of this specimen, housed at another herbarium, had been
assigned to T. montanum var. montanum by Patricia Holmgren in her 1971
biosystematic study of North American T. montanum and its allies. The
specimen has since been examined by Imper and Service staff, who concur
that it is T. montanum (Meyers 1991, Imper 1997).
The only known population of Thlaspi californicum is scattered
within an area of 0.25 hectare (ha) (0.6 acre (ac)), with a total of
about 11,000 individuals at Kneeland Prairie in Humboldt County (Dave
Imper, Environmental Specialist, SHN Consulting Engineers and
Geologists, pers. comm., 1997). The Kneeland Prairie population is
bisected into two colonies by the Kneeland Prairie Airport. Both
colonies occur on private land immediately adjacent to the Kneeland
Prairie Airport. At Kneeland Prairie, the habitat for T. californicum
has been reduced by approximately 60 to 70 percent within the past 33
years through development of the site for the Kneeland Prairie Airport,
a county road realignment, and a helitack base (CNDDB 1997, Meyer 1991,
Imper 1997). This population is currently threatened by the proposed
expansion of the County airport and potential additional realignment of
the adjacent road. Because of its extremely restricted range, the plant
is also vulnerable to extinction from naturally occurring events such
as fire (CNDDB 1997).
To assess the significance of the Kneeland Prairie population to
the species, Imper (1997) inspected potentially suitable habitat for
Thlaspi californicum in other areas near Kneeland Prairie and to the
south. He found no other occurrences. Additionally, T. californicum has
been targeted for surveys by the Bureau of Land Management (BLM) and
U.S. Forest Service staff. The Six Rivers National Forest has no
documented occurrences (Lisa Hoover, botanist, Six Rivers National
Forest, pers. comm., 1997). A search for the species has not revealed
any T. californicum on the serpentine at Iaqua Buttes on BLM lands
(Jennifer Wheeler, botanist, BLM, Arcata Resource Area, pers. comm.,
1997).

Previous Federal Action

Federal Government action on Thlaspi californicum began when we
published an updated Notice of Review (NOR) for plants on December 15,
1980 (45 FR 82480), that identified those plants currently being
considered for listing as endangered or threatened. We included T.
californicum (then known as T. californicum var. montanum) as a
category 2 candidate for Federal listing in this document. Category 2
candidates were those taxa for which data on biological vulnerability
and threats in our possession indicated that listing was possibly
appropriate but was not sufficient to support proposed rules. Our
November 28, 1983, supplement to the NOR (48 FR 53640) as well as the
subsequent revision on September 27, 1985 (50 FR 39526), included T.
californicum as a category 2 candidate.
We revised the plant NOR again on February 21, 1990 (55 FR 6184),
and September 30, 1993 (58 FR 51144). In both notices, we included
Thlaspi californicum as a category 1 candidate. Category 1 candidates
were those taxa for which we had on file sufficient information on
biological vulnerability and threats to support preparation of listing
proposals, but issuance of the proposed rule was precluded by other
pending listing proposals of higher priority. In our February 28, 1996,
Federal Register Notice of Review of Plant and Animal Taxa that are
Candidates for Listing as Endangered or Threatened Species (61 FR
7596), we discontinued designation of multiple categories of
candidates, and only those taxa meeting the definition of former
category 1 are now considered candidates for listing. Thlaspi
californicum was included as a candidate species in the February 28,
1996, notice. We published a proposed rule on February 11, 1998, to
list this species as endangered. We based the proposal on information
supplied by reports to the CNDDB and observations and reports by
numerous botanists.
Based on all available information including comments received in
response to the proposal (see the Summary of Comments and
Recommendations section of this final rule), we have now determined
Thlaspi californicum to be endangered. The processing of this final
rule conforms with our Listing Priority Guidance published in the
Federal Register on October 22, 1999 (64 FR 57114). The guidance
clarifies the order in which we will process rulemakings. Highest
priority is processing emergency listing rules for any species
determined to face a significant and imminent risk to its well-being
(Priority 1). Second priority (Priority 2) is processing final
determinations on proposed additions to the lists of endangered and
threatened wildlife and plants. Third priority is processing new
proposals to add species to the lists. The processing of administrative
petition findings (petitions filed under section 4 of the Act) is the
fourth priority. The processing of critical habitat determinations
(prudency and determinability decisions) and proposed or final
designations of critical habitat will no longer be subject to
prioritization under Listing Priority Guidance. This final rule is a
Priority 2 action. We have updated this rule to reflect any changes in
information

[[Page 6334]]

concerning distribution, status, and threats since the publication of
the proposed rule.

Summary of Comments and Recommendations

In the proposed rule published February 11, 1998, in the Federal
Register (63 FR 7112) and associated notifications, we requested all
interested parties to submit factual reports or information that might
contribute to development of a final rule. The public comment period
closed on April 13, 1998. We contacted appropriate Federal agencies,
State agencies, county and city governments, scientific organizations,
and other interested parties and requested comments. We also sent
copies of the proposed rule and the letter for request of comment to
three local libraries for public display. We published a newspaper
notice in the Eureka Times-Standard on February 25, 1998, which invited
general public comment. We received no requests for a public hearing.
Six individuals or agencies submitted comments. Two commenters
supported the listing, three commenters opposed the listing, and one
commenter was neutral. We received supporting comments from the
California Native Plant Society and BLM. We received opposing comments
from the Washington Legal Foundation, Pacific Legal Foundation, and a
private citizen. We organized opposing comments and other comments
questioning the proposed rule into specific issues, grouped comments of
a similar nature by issue, and summarized them as follows:
Issue 1: One respondent asserted that listing this species would
exceed the scope of the Federal commerce power under the Commerce
Clause of Article I, section 8 of the U.S. Constitution.
Response: We maintain that we do have the authority to list plants
such as the one in this final rule pursuant to the Act. A recent
decision in the United States Court of Appeals for the District of
Columbia Circuit (National Association of Home Builders of the U.S. v.
Babbitt, 130 F.3d 1041, D.C. Cir. 1997) makes it clear in its
application of the test used in the United States Supreme Court case,
United States v. Lopez, 514 U.S. 549 (1995), that regulation of species
limited to one State under the Act is within Congress' commerce clause
power. On June 22, 1998, the Supreme Court declined to accept an appeal
of this case (118 S. Ct. 2340 1998). Therefore, our application of the
Act to Thlaspi californicum is constitutional.
Issue 2: One respondent wanted to know the full economic impact of
the listing of this plant.
Response: Under section 4(b)(1)(A) of the Act, a listing
determination must be based solely on the best scientific and
commercial data available. The legislative history of this provision
clearly states the intent of Congress to ``ensure'' that listing
decisions are ``based solely on biological criteria and to prevent non-
biological considerations from affecting such decisions,'' H.R. Rep.
No. 97-835, 97th Cong. 2d Sess. 19 (1982). As further stated in the
legislative history, ``Applying economic criteria * * * to any phase of
the species listing process is applying economics to the determinations
made under section 4 of the Act and is specifically rejected by the
inclusion of the word ``solely'' in this legislation,''
H.R. Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982). Because we are
specifically precluded from considering economic impacts in a final
decision on a proposed listing, we have not examined such impacts and
cannot respond to comments and requests concerning possible economic
consequences of listing this plant.
Issue 3. One respondent stated that the Service does not have
sufficient scientific data to support a determination of endangered and
that the Service did not cite any studies that might question the
validity of the proposal.
Response: The Act requires us to reach a decision based on the best
scientific and commercial information available. We believe that
botanical study of the appropriate habitats on public lands in Humboldt
and nearby counties has been adequate to show that this plant is indeed
extremely rare. The threats to this species discussed under the Summary
of Factors Affecting the Species section of this rule are also based on
the best information available and are well documented or reasonably
foreseeable. By their nature, threats are descriptions of events that
have not yet taken place but are likely to occur in the foreseeable
future. All information received from all sources was carefully
evaluated.
Criteria for what information may be considered are discussed in
the Summary of Factors Affecting the Species section. We have attempted
to check all substantive information for accuracy and believe that the
information included in this rule is reliable.
Issue 4: One respondent asked a series of questions about the CNDDB
including its function, sources of information and funding, and review
process.
Response: The CNDDB is a computerized inventory with information on
the location and condition of special status plants, animals, and
natural communities. The CNDDB receives funding through the State of
California and receives its information from a variety of sources
including consultants, academia, State and Federal agency biologists,
and knowledgeable lay people. The information submitted to CNDDB is
reviewed by CNDDB staff for general accuracy before it is entered into
the database.

Peer Review

We have routinely solicited comments from parties interested in,
and knowledgeable of, species that have been proposed for listing as
threatened or endangered. The July 1, 1994, Peer Review Policy (59 CFR
34270) established the formal requirement that a minimum of three
independent peer reviewers be solicited to review our listing
decisions. We received no responses to our requests for peer review of
this listing action.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, we have determined that Thlaspi californicum should be
classified as an endangered species. We followed procedures found at
section 4(a)(1) of the Act and regulations (50 CFR part 424)
implementing the listing provisions of the Act. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1). These factors and
their application to Thlaspi californicum are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The habitat of Thlaspi
californicum has been significantly reduced within the past 33 years.
Just before 1964, an estimated 2.0 to 2.25 ha (5 to 6 ac) of habitat
existed at Kneeland Prairie (Meyers 1991). Approximately 60 to 70
percent of the habitat at Kneeland Prairie has been lost since 1964,
due to construction of the Kneeland Prairie Airport, realignment of the
county road that runs through Kneeland Prairie, and construction of the
California Department of Forestry (CDFFP) helitack base (Meyers 1991;
Imper 1990; Imper, pers. comm., 1997). Additional habitat and plants
are currently threatened by the proposed expansion of the Kneeland
Prairie Airport and potential road realignment.

[[Page 6335]]

The Kneeland Prairie Airport serves principally as the backup
airport for Rohnerville, Murray, Eureka Municipal, and Arcata-Eureka
airports. Small single-engine and occasionally twin-engine planes use
Kneeland Prairie Airport. This airfield is especially important when
airports at lower elevations are fogged in, a frequent occurrence in
the region (Hodges & Shutt 1993). Kneeland Prairie Airport is the only
airport in the Humboldt Bay area that can be used when the bay is
fogged in (Don Tuttle, Resource Specialist, Humboldt County Public
Works, pers. comm., 1997). The airport is particularly important for
commercial express mail and air freight carriers, as well as other
couriers (Ray Beeninga, Airports Manager, Humboldt County, pers. comm.,
1997).
Humboldt County contracted a study to evaluate its airports and
prepare appropriate planning documents (Hodges & Shutt 1993). The study
provided an assessment of Kneeland Airport's role and associated
airfield requirements. The report also discussed land use compatibility
issues and descriptions of capital projects and provided documentation
required to upgrade Kneeland Prairie Airport from temporary to
permanent inclusion in the National Plan for Integrated Airport
Systems. That designation allows the county to receive Federal funding
for airport modifications through the Federal Aviation Administration
(FAA). Recommendations in the report included development of a complete
geotechnical study of specific engineering designs to stabilize the
airport and construction of a new parking area meeting FAA setback
standards. The report discussed design constraints for placement of the
new parking area. The location of the CDFFP helitack base limits the
ability of the airport to expand the existing parking area to the
northwest (Hodges & Shutt 1993). The recommended location for the new
parking area is on the eastern side of the airport (Hodges & Shutt
1993), adjacent to the eastern colony of Thlaspi californicum.
Construction of the parking facility at Kneeland Prairie Airport could
adversely affect the habitat and individuals of the eastern colony due
to the proximity of the plants to the potential site.
Humboldt County is also contracting an initial study to evaluate
the geotechnical feasibility and cost of modifying Kneeland Prairie
Airport. The study, currently in progress (D. Tuttle and D. Imper,
pers. comms., 1997), is evaluating ways to solve problems involving
subsidence of the runway, slope stabilization, and the safety issue
that the runway is too short (Dave Dietz, Project Manager, Shutt-Moen
Associates, pers. comm., 1997). Possible options include leaving the
airport configuration as is (i.e., repairing current subsidence, but
not extending the runway), finding a different site for a new airport,
or modifying the existing airport (D. Dietz, pers. comm., 1997).
Financial constraints could influence the choice among the alternatives
(R. Beeninga, pers. comm., 1997). In addition, exploratory soil boring
is needed to determine how to stabilize the airport and to determine
the cost of extending the runway (D. Dietz, pers. comm., 1997). Thlaspi
californicum occurs on the slopes immediately adjacent to the airfield.
Exploratory boring may affect individuals located immediately adjacent
to airport lands (L. Host and K. Tarp, pers. obs. 1997). Modification
of the existing airport is anticipated to occur in the year 2000 (R.
Beeninga, pers. comm., 1997).
The realignment of the county road adjacent to the airport could
affect the western occurrence of Thlaspi californicum at Kneeland
Prairie (D. Imper, pers. comm., 1997). The road currently runs along
the southwest edge of the runway and serves areas beyond the airport.
The aviation manager would not be authorized to modify the road except
as necessary for slope stabilization or as the result of possible
runway extension at the south end of the airport. The extension of the
runway to the south is not expected to directly impact T. californicum.
However, if the runway is extended 30 to 65 m (90 to 200 ft) (R.
Beeninga, pers. comm., 1997), the runway will run through the current
road. The road would then either need to go under the runway via a
tunnel or be realigned. The western colony of T. californicum occurs
just downslope of the current road. Road realignment could result in
impacts to habitat and individual plants.
For safety reasons, it is likely that Humboldt County will
undertake straightening and/or widening the road, either independent of
or concurrent with runway expansion (L. Host, in litt., 1997). The road
adjacent to the airport is narrow; a blind, 90-degree curve in the road
around the end of the runway limits safe speeds to only 10 to 15 miles
per hour. These conditions could warrant a county decision to realign
the road to achieve a safer curve radius at the end of the runway.
Unless the approach to that portion of the road is moved outward beyond
the plants (which would require extra length and expense), the
realignment would cross the remaining serpentine habitat and eliminate
about half of the remaining plants in the western colony. We anticipate
that such roadwork would occur during airport construction to avoid the
expense of bringing necessary machinery to the site twice.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Overutilization is not known to be a threat for
this plant.
C. Disease or predation. We know of no threats to Thlaspi
californicum from disease. Cattle grazing occurs throughout the prairie
and the area surrounding the airport (Imper 1997). Cattle trails run
through T. californicum habitat (Meyers 1991), but current levels of
grazing do not appear to threaten the species.
D. The inadequacy of existing regulatory mechanisms. The California
Environmental Quality Act (CEQA) (chapter 2, section 21050 et seq. of
the California Public Resources Code) requires full disclosure of the
potential environmental impacts of proposed projects. The public agency
with primary authority or jurisdiction over the project is designated
as the lead agency and is responsible for conducting a review of the
project and consulting with the other agencies concerned with the
resources affected by the project. Section 15065 of the CEQA guidelines
requires a finding of significance if a project has the potential to
reduce the number or restrict the range of a rare or endangered plant
or animal. Species that are eligible for listing as rare, threatened,
or endangered but are not so listed are given the same protection as
those species that are officially listed with the State or Federal
governments. Once significant effects are identified, the lead agency
has the option of requiring mitigation for effects through changes in
the project or to decide that overriding considerations make mitigation
infeasible. In the latter case, projects may be approved that cause
significant environmental damage, such as destruction of endangered
species. Protection of listed species through CEQA is therefore
dependent upon the discretion of the agency involved.
When the CDFFP constructed the Kneeland Helitack Base in 1980, a
botanical assessment was required by the Humboldt County Planning
Department for issuance of a conditional use permit. However, CDFFP did
not include any analysis of potential impacts to Thlaspi californicum,
although records of its California Native Plant Society 1B status and
CNDDB documentation of the species' presence were available at that
time (Imper 1990, Meyers 1991).

[[Page 6336]]

E. Other natural or manmade factors affecting its continued
existence. Thlaspi californicum has never been found anywhere other
than at Kneeland Prairie, where the single population occupies 0.25 ha
(0.6 ac), bisected by the Kneeland Airport. This plant occupies
serpentine prairie habitat that is quite restricted in extent. The
combination of a single population and restricted habitat makes T.
californicum susceptible to destruction of all or a significant portion
of its range from naturally occurring events such as fire, drought, or
severe erosion (Shaffer 1981, Primack 1993). Chance events causing
population fluctuations or even population extirpations are not usually
a concern until the number of individuals or geographic distribution
becomes as limited as with T. californicum (Primack 1993). The single
known locality of the species also makes the population at Kneeland
Prairie particularly susceptible to extinction due to fire or an
erosional event causing slope failure. Even one such event has the
potential to seriously impact the sole population of the species.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by this species in determining to propose this rule. Airport
expansion activities, potential road realignment, inadequate regulatory
mechanisms, and naturally occurring events such as fire imperil the
continued existence of this plant. The one known population of Thlaspi
californicum includes approximately 11,000 individual plants scattered
within a 0.25 ha (0.6 ac) area. The species is in danger of extinction
throughout all of its known range. Based on this evaluation, the
preferred action is to list T. californicum as endangered. Other
alternatives to this action were considered but not preferred. A
conservation agreement could not be negotiated with the private land
owners (D. Imper, in litt., 1994), and listing T. californicum as
threatened would not provide adequate protection and would not be
consistent with the Act. Listing T. californicum as endangered would
provide additional protection and is consistent with the Act's
definition of endangered.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The
specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures needed to bring the species to the point at which listing
under the Act is no longer necessary. The regulations (50 CFR
424.12(a)(1)) state that designation of critical habitat is not prudent
when one or both of the following situations exist--(1) the species is
threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of threat to
the species, or (2) such designation of critical habitat would not be
beneficial to the species.
In the proposed rule, we indicated that designation of critical
habitat was not prudent for Thlaspi californicum because of a concern
that publication of precise maps and descriptions of critical habitat
in the Federal Register could increase the vulnerability of this
species to incidents of collection and vandalism. We also indicated
that designation of critical habitat was not prudent because we
believed it would not provide any additional benefit beyond that
provided through listing as endangered.
In the last few years, a series of court decisions have overturned
Service determinations regarding a variety of species that designation
of critical habitat would not be prudent (e.g., Natural Resources
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d
1280 (D. Hawaii 1998)). Based on the standards applied in those
judicial opinions, we have reexamined the question of whether critical
habitat for Thlaspi californicum would be prudent.
Due to the small number of populations, Thlaspi californicum is
vulnerable to unrestricted collection, vandalism, or other disturbance.
We remain concerned that these threats might be exacerbated by the
publication of critical habitat maps and further dissemination of
locational information. However, we have examined the evidence
available for Thlaspi californicum and have not found specific evidence
of taking, vandalism, collection, or trade of this species or any
similarly situated species. Consequently, consistent with applicable
regulations (50 CFR 424.12(a)(1)(i)) and recent case law, we do not
expect that the identification of critical habitat will increase the
degree of threat to this species of taking or other human activity.
In the absence of a finding that critical habitat would increase
threats to a species, if a critical habitat designation would provide
any benefits, then a prudent finding is warranted. In the case of this
species, designating critical habitat may provide some benefits. The
primary regulatory effect of critical habitat is the section 7
requirement that Federal agencies refrain from taking any action that
destroys or adversely modifies critical habitat (see Available
Conservation Measures section). While a critical habitat designation
for habitat currently occupied by this species would not be likely to
change the section 7 consultation outcome because an action that
destroys or adversely modifies such critical habitat would also be
likely to result in jeopardy to the species, there may be instances
where section 7 consultation would be triggered only if critical
habitat is designated. Examples could include unoccupied habitat or
occupied habitat that may become unoccupied in the future. Designating
critical habitat may also provide some educational or informational
benefits. Therefore, we find that critical habitat is prudent for
Thlaspi californicum.
The Final Listing Priority Guidance for FY 2000 (64 FR 57114)
states, the processing of critical habitat determinations (prudency and
determinability decisions) and proposed or final designations of
critical habitat will no longer be subject to prioritization under the
Listing Priority Guidance. Critical habitat determinations, which were
previously included in final listing rules published in the Federal
Register, may now be processed separately, in which case stand-alone
critical habitat determinations will be published as notices in the
Federal Register. We will undertake critical habitat determinations and
designations during FY 2000 as allowed by our funding allocation for
that year. As explained in detail in the Listing Priority Guidance, our
listing budget is currently insufficient to allow us to immediately
complete all of the listing actions required by the Act. Deferral of
the critical habitat designation for Thlaspi californicum has allowed
us to concentrate our limited resources on higher priority critical
habitat (including court ordered designations) and other listing
actions, while allowing us to put in place protections needed for the
conservation of Thlaspi californicum without further delay. However,
because we have successfully reduced, although not eliminated, the

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backlog of other listing actions, we anticipate in FY 2000 and beyond
giving higher priority to critical habitat designation, including
designations deferred pursuant to the Listing Priority Guidance, such
as the designation for this species, than we have in recent fiscal
years.
We plan to employ a priority system for deciding which outstanding
critical habitat designations should be addressed first. We will focus
our efforts on those designations that will provide the most
conservation benefit, taking into consideration the efficacy of
critical habitat designation in addressing the threats to the species,
and the magnitude and immediacy of those threats. We will develop a
proposal to designate critical habitat for Thlaspi californicum as soon
as feasible, considering our workload priorities. Unfortunately, for
the immediate future, most of Region 1's listing budget must be
directed to complying with numerous court orders and settlement
agreements, as well as due and overdue final listing determinations
(like the one at issue in this case).

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, and individuals. The Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required
of Federal agencies and the prohibitions against certain activities
involving listed plants are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened 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)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a proposed species or result in destruction or adverse
modification of proposed critical habitat. If a species is listed
subsequently, section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or to 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 formal consultation with us.
All of the occurrences of Thlaspi californicum are on privately
owned land. However, impacts of modifying the adjacent airport have the
potential to adversely affect T. californicum, due to the proximity of
the plants to the proposed parking apron. Funds from the FAA have been
used to partially finance a planning document for the Kneeland Prairie
Airport and are proposed to be used for airport modifications. Private
sector funding is not anticipated to be available for Kneeland Prairie
Airport (Hodges & Shutt 1993). Realignment of a county road adjacent to
the airport may be required if the runway is extended. This work could
be partially funded by Federal Highway Administration grants, thereby
providing another avenue for section 7 consultation.
Listing Thlaspi californicum would provide for development of a
recovery plan for this plant. Such a plan would bring together both
State and Federal efforts for conservation of the plant species. The
plan would establish a framework for agencies to coordinate activities
and cooperate with each other in conservation efforts. The plan would
set recovery priorities and estimate costs of various tasks necessary
to accomplish recovery. It also would describe site-specific management
actions necessary to achieve conservation and survival of the plant.
Additionally, under section 6 of the Act, we would be able to grant
funds to the State for management actions promoting the protection and
recovery of this species.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.61 for endangered plants, apply. These prohibitions, in part,
make it illegal for any person subject to the jurisdiction of the
United States to import or export an endangered plant, transport such a
plant in interstate or foreign commerce in the course of a commercial
activity, sell or offer for sale an endangered plant in interstate or
foreign commerce, or remove and reduce an endangered plant to
possession from areas under Federal jurisdiction. In addition, for
plants listed as endangered, the Act prohibits malicious damage or
destruction on areas under Federal jurisdiction, and the removal,
cutting, digging up, or damaging or destroying of such plants in
knowing violation of any State law or regulation or in the course of
any violation of a State criminal trespass law. Certain exceptions to
the prohibitions apply to agents of the Service and State conservation
agencies.
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plant species under certain circumstances. Such permits are
available for scientific purposes and to enhance the propagation or
survival of the species. It is anticipated that few trade permits would
ever be sought or issued because this species is not common in
cultivation or common in the wild. Information collections associated
with these permits are approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
clearance number 1018-0094. For additional information concerning these
permits and associated requirements, see 50 CFR 17.62. Requests for
copies of the regulations concerning listed plants and general
inquiries regarding prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Endangered Species Permits, 911 N.E.
11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063;
facsimile 503/231-6243).
It is our policy, published in the Federal Register (59 FR 34272)
on July 1, 1994, to identify to the maximum extent practicable those
activities that would or would not be likely to constitute a violation
of section 9 of the Act if a species is listed. The intent of this
policy is to increase public awareness of the effect of the species'
listing on proposed and ongoing activities within its range. Collection
of listed plants or activities that would damage or destroy listed
plants on Federal lands are prohibited without a Federal endangered
species permit. Such activities on non-Federal lands would constitute a
violation of section 9 of the Act if they were conducted in knowing
violation of California State law or regulation, or in the course of
violation of California State criminal trespass law. Otherwise such
activities would not constitute a violation of the Act on non-Federal
lands.
Questions on whether specific activities would likely constitute a
violation of section 9 should be directed to the Field Supervisor of
the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

[[Page 6338]]

Regulatory Planning and Review

This rule is not subject to review by the Office of Management and
Budget under Executive Order 12866.

National Environmental Policy Act

We have determined that an environmental assessment and
environmental impact statement, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the
Endangered Species Act of 1973, as amended. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any information collection requirements
for which Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An
information collection related to the rule pertaining to permits for
endangered and threatened species has OMB approval and is assigned
clearance number 1018-0094. For additional information concerning
permits and associated requirements for endangered plants, see 50 CFR
17.62 and 17.63.

References Cited

A complete list of all references cited in this rule is available
upon request from the Field Supervisor, Sacramento Fish and Wildlife
Office (see ADDRESSES section).

Author

The primary author of this final rule is Kirsten Tarp, Sacramento
Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we hereby amend part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend Sec. 17.12(h) by adding the following, in alphabetical
order under Flowering Plants, to the List of Endangered and Threatened
Plants:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS

* * * * * * *
Thlaspi californicum............. Kneeland Prairie U.S.A. (CA)........ Brassicaceae....... E 684 NA NA
penny-cress.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: January 13, 2000.
Jamie Rapport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 00-2950 Filed 2-8-00; 8:45 am]
BILLING CODE 4310-55-U