[Federal Register: June 6, 2002 (Volume 67, Number 109)]
[Page 39035-39037]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; Annual Notice of 
Recycled Petition Finding for the Slender Moonwort

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of review.


SUMMARY: In this notice of review, we announce our recycled petition 
finding, as required in section 4(b)(3)(C)(i) of the Endangered Species 
Act of 1973, as amended, for Botrychium lineare (slender moonwort). 
When, in response to a petition, we complete a 12-month finding that 
listing a species is warranted but precluded, we must make a new 12-
month finding each year until we publish a proposed rule or make a 
determination that listing is not warranted. These subsequent 12-month 
findings are referred to as recycled petition findings.
    Information contained in this notice of review is based on our 
review of the current status and threats to this species that is the 
subject of an outstanding warranted but precluded finding. Based on our 
review, we find that Botrychium lineare continues to warrant listing, 
but this activity is precluded by listing activities of higher 
    We request additional status information that may be available for 
this species. We will consider this information in preparing listing 
documents and future recycled petition findings. This information will 
help us in monitoring changes in the status of Botrychium lineare and 
in conserving this species.

DATES: We will accept comments on this recycled petition finding at any 

ADDRESSES: Submit your comments to the Supervisor, U.S. Fish and 
Wildlife Service, Snake River Basin Office, 1387 S. Vinnell Way, Room 
368, Boise, Idaho 83709. Written comments and materials received in 
response to this notice will be available for public inspection, by 
appointment, during normal business hours at the Snake River Basin 

FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Supervisor (see 
ADDRESSES section) (telephone 208/378-5243; facsimile 208/378-5262).



    The Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 
1531 et seq.), provides two mechanisms for considering species for 
listing. First, the Act places on the Service the duty to identify and 
propose for listing those species which we find require listing under 
the standards of section 4(a)(1). We implement this through the 
candidate assessment program. Candidate species are those taxa for 
which we have on file sufficient information on biological 
vulnerability and threats to support proposals to list them as 
endangered or threatened. Issuance of proposed rules for these species 
is precluded, at present, by other higher priority listing actions. 
Second, the Act provides a mechanism for the public to petition us to 
add a species to the Lists of Threatened and Endangered Wildlife and 
Plants. Under section 4(b)(3)(A), when we receive such a petition, we 
must determine within 90 days, to the maximum extent practicable, 
whether the petition presents substantial information that listing is 
warranted (a ``90-day finding''). If we make a positive 90-day finding, 
under section 4(b)(3)(B), we must make one of three possible findings 
within 12 months of the receipt of the petition (a ``12-month 
    The first possible 12-month finding is that listing is not 
warranted, in which case we need take no further action on the 
petition. Second, we may find that

[[Page 39036]]

listing is warranted, in which case we must promptly publish a proposed 
rule to list the species. Once we publish a proposed rule for a 
species, sections 4(b)(5) and (6) govern further procedures, regardless 
of whether or not we issued the proposal in response to a petition. 
Third, we may find that listing is ``warranted but precluded.'' Such a 
finding means that immediate publication of a proposed rule to list the 
species is precluded by higher priority listing proposals, and that we 
are making expeditious progress to add and remove species from the 
Lists, as appropriate.
    The standard for making a 12-month warranted but precluded finding 
on a petition to list a species is identical to our standard for making 
a species a candidate for listing. Therefore, we add all petitioned 
species subject to such a finding to the candidate list. Similarly, we 
can treat all candidates as having been subject to both a positive 90-
day finding and a warranted but precluded 12-month finding.
    Pursuant to section 4(b)(3)(C)(i), when, in response to a petition, 
we find that listing a species is warranted but precluded, we must make 
a new 12-month finding each year until we publish a proposed rule to 
make a determination that listing is not warranted. These subsequent 
12-month findings are referred to as recycled petition findings. This 
notice constitutes publication of our recycled petition finding for 
Botrychium lineare.

Previous Federal Action

    On July 28, 1999, we received a petition dated July 26, 1999, from 
the Biodiversity Legal Foundation. The petitioner requested us to list 
Botrychium lineare as endangered or threatened and to designate 
critical habitat within a reasonable period of time following the 
listing. The petitioner submitted biological, distributional, 
historical, and other information and scientific references in support 
of the petition.
    On May 10, 2000 (65 FR 30048), we published a 90-day petition 
finding concluding that the petition presented substantial information 
indicating that the requested action may be warranted. Accordingly, we 
initiated a status review pursuant to section 4(b)(3)(B) on the 
petitioned action.
    We reviewed the petition, and published a notice of a 12-month 
petition finding in the Federal Register on June 6, 2001 (66 FR 30368). 
Based on the best scientific and commercial information available, we 
believe that sufficient information is currently available to support a 
finding that listing Botrychium lineare as threatened is warranted, but 
that a proposed rule at this time is precluded by work on other higher 
priority listing actions.
    Section 4(b) of the Act states that we may make warranted but 
precluded findings only if we find that: (1) An immediate proposed rule 
is precluded by other pending actions, and (2) expeditious progress is 
being made on other listing actions. Due to the large amount of 
litigation we face, primarily over critical habitat, we are working on 
numerous listing actions mandated by court orders and settlement 
agreements. Complying with these orders and settlement agreements will 
consume nearly all or all of our listing budget for FY 2002. Any 
funding we may have available for discretionary listing actions will 
likely be allocated for emergency listings only. However, we can 
continue to place species on the candidate species list.

Finding on the Slender Moonwort Petition

    Pursuant to section 4(b)(3)(C)(i), when, in response to a petition, 
we find that listing a species is warranted but precluded, we must make 
a new 12-month finding each year until we publish a proposed rule or 
make a determination that listing is not warranted. These subsequent 
12-month findings are referred to as recycled petition findings.
    We reviewed the current status and threats to Botrychium lineare, 
and we have found the petitioned action to be warranted but precluded 
for this species. As a result of this review, we continue to make a 
warranted but precluded finding for Botrychium lineare. As discussed 
above, this finding means that the immediate publication of proposed 
rules to list these species was precluded by our work on the following 
higher priority listing actions during the period from November 1, 
2001, through May 30, 2002: Court orders or settlement agreements to 
propose critical habitat and/or complete critical habitat 
determinations for 3 southern California plants, Kneeland Prairie 
pennycress, purple amole, Santa Cruz tarplant, Oahu elepaio, Newcomb's 
snail, 76 Kauai and Nihau plants (reproposal), 5 California carbonate 
plants, Blackburn's sphinx moth, 32 Lanai plants (reproposal), 2 
Hawaiian invertebrates, 8 northwest Hawaiian Islands plants, 61 Maui 
and Kahoolawe plants (reproposal), Quino checkerspot butterfly, 46 
Molokai plants (reproposal), San Bernardino kangaroo rat, 56 Hawaiian 
Island plants, 15 vernal pool species (4 fairy shrimp and 11 plants), 
103 Oahu plants, Rio Grande silvery minnow, gulf sturgeon; proposed 
listings for pygmy rabbit, Carson's wandering skipper, Island fox, 4 
southwestern invertebrates (proposed listing with critical habitat), 
and Tumbling Creek cavesnail; final listing determinations for Buena 
Vista Lake shrew, showy stickseed, scaleshell mussel, Vermilion darter, 
Mississippi gopher frog, golden sedge, and desert yellowhead; emergency 
listings for pygmy rabbit, Carson's wandering skipper, and Tumbling 
Creek cavesnail; 90-day petition finding for Miami blue butterfly; and 
12-month petition finding for Big Cypress fox squirrel and Cape Sable 
seaside sparrow (for critical habitat).
    We find that the immediate issuance of a proposed rule and timely 
promulgation of a final rule for this species, for the preceding 7 
months has been, and will over the next year, be precluded by higher 
priority listing actions. During the past 7 months, almost all of our 
listing budget has been needed to take various listing actions to 
comply with court orders and court-approved settlement agreements. For 
a list of the listing actions taken over the 7 months, see the 
discussion of ``Progress on Revising the Lists,'' below.
    For the next year, the majority of our remaining listing budget for 
FY 2002, and our anticipated listing budget for FY 2003 based on the 
President's requested budget, will be needed to take listing actions to 
comply with court orders and court-approved settlement agreements. 
Currently, we will address or complete the following actions: Court 
ordered or settlement agreements to complete the critical habitat 
determinations for 57 Hawaii Island plants, Otay tarplant, Oahu 
elepaio, Blackburn's sphinx moth, Newcomb's snail, 2 Kauai 
invertebrates, 81 Kauai and Niihau plants, yellow and Baker's 
larkspurs, 3 Southern California coastal plants, Keck's checkermallow, 
purple amole, 69 Maui and Kahoolawe plants, Santa Cruz tarplant, 37 
Lanai plants, 49 Molokai plants, 6 Northwestern Hawaiian Islands 
plants, 101 Oahu plants, 15 vernal pool fairy shrimp, Carolina 
heelsplitter and Appalachian elktoe, Kneeland prairie pennycress, 6 
Guam species, bull trout, 5 carbonate plants, Ventura Marsh milkvetch, 
Cook's lomatium and large-flowered wooly meadowfoam, Rio Grande silvery 
minnow, 9 Texas invertebrates, Topeka shiner, Prebles' meadow jumping 
mouse, Great Plains piping plover, and a final determination for the 
Sacramento splittail. In addition, the following are higher priority 
statutory deadlines: final listing for Mississippi gopher frog, 
Chiricahua leopard frog, Gila chub,

[[Page 39037]]

golden sedge, mountain plover, San Diego ambrosia, southern California 
mountain yellow-legged frog, coastal cutthroat trout, slickspot 
peppergrass, and desert yellowhead.
    Finally, work on a proposed rule for Botrychium lineare, with a 
listing priority number of 11, is also precluded by the need to issue 
proposed rules for higher priority species, particularly those facing 
high-magnitude, imminent threats (i.e., listing priority numbers of 1, 
2, or 3).
    Below, we provide information on the biology, current status, and 
threats to Botrychium lineare. More complete information, including 
references, are found in the candidate form. You may obtain a copy of 
this form from the Regional Director (TE), U.S. Fish and Wildlife 
Service, Eastside Federal Complex, 911 N.E. 11th Avenue, Portland, 
Oregon 97232-4181 (503/231-6158), or from the Service's web site: 
http://endangered.fws.gov/. You may also direct general comments or 
questions to this address. We will consider all information provided in 
response to this notice of review in deciding whether to propose 
Botrychium lineare for listing and when to undertake necessary listing 
actions. Comments received will become part of the administrative 
record for the species.

Biological Information

    Botrychium lineare (slender moonwort) (Ophioglossaceae) is a small 
perennial fern that is currently known from a total of 9 (possibly 11) 
populations in Colorado, Oregon, Montana, and Washington. Surveys 
conducted in 2001 identified two new Botrychium lineare populations in 
Idaho and Nevada on the basis of their plant morphology, although 
Farrar (Iowa State University, in litt. 2002) stated that their 
identity should be verified by enzyme electrophoresis. Historic 
populations were previously known from Idaho (Boundary County), Montana 
(Lake County), California (Fresno County), Colorado (Boulder County), 
and Canada (Quebec and New Brunswick), have not been seen for at least 
20 years and may be extirpated (Wagner and Wagner 1994). Known threats 
to populations of this species include road maintenance, herbicide 
spraying, trampling by recreational foot or vehicle traffic, timber 
harvest, trampling and grazing by wildlife and livestock, exotic 
species, and development. Because we concluded that the overall 
magnitude of threats to Botrychium lineare throughout its range is 
moderate, and the overall immediacy of these threats is non-imminent, 
we assigned this species a listing priority number of 11. We assign 
this number based on the immediacy and magnitude of threats, as well as 
on taxonomic status. We published a complete description of our listing 
priority system in a September 21, 1983, Federal Register notice (48 FR 

Progress in Revising the Lists

    As described in section 4(b)(3)(B)(iii) of the Act, in order for us 
to make a warranted but precluded finding on a petitioned action, we 
must be making expeditious progress to add qualified species to the 
Lists and to remove from the Lists species for which the protections of 
the Act are no longer necessary. This notice describes our progress in 
revising the lists with regards to the slender moonwort since our 
October 30, 2001, publication of the last CNOR. We intend to publish 
such descriptions annually as part of the Candidate Notice of Review.
    Our progress in listing and delisting qualified species since 
October 30, 2001, is represented by the publication in the Federal 
Register of final listing actions for 6 species, emergency listing 
actions for 3 species, proposed listing actions for 10 species, and 
proposed delisting actions for 3 species. In addition, we proposed 
critical habitat for 184 listed species, reproposed critical habitat 
for 215 species, and finalized critical habitat for 3 listed species. 
Given our limited budget for implementing section 4 of the Act, these 
achievements constitute expeditious progress.

Request for Information

    Although we are not proposing a listing priority change or removal 
of candidate status at this time, any new information we receive on the 
distribution of and threat/conservation actions for B. lineare may have 
a bearing on whether listing under the Act is still warranted. We 
request you submit any further information on this species as soon as 
possible or whenever it becomes available. We especially seek 
    (1) Indicating that we should remove this species from candidate 
    (2) Recommending areas that we should designate as critical habitat 
for Botrychium lineare, or indicating that designation of critical 
habitat would not be prudent for the species;
    (3) Documenting threats to Botrychium lineare;
    (4) Describing the immediacy or magnitude of threats facing 
Botrychium lineare;
    (5) Pointing out taxonomic or nomenclatural changes for Botrychium 
lineare; or
    (6) Noting any mistakes, such as errors in the indicated historical 

References Cited

    Wagner, W.H. and F.S. Wagner. 1994. Another widely disjunct, rare 
and local North American moonwort (Ophioglossaceae: Botrychium subg. 
Botrychium). American Fern Journal 84(1):5-10.


    This notice of review is published under the authority of the 
Endangered Species Act (16 U.S.C. 1531 et seq.).

    Dated: May 31, 2002.
Marshall P. Jones Jr.,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 02-14155 Filed 6-5-02; 8:45 am]