[Federal Register: September 5, 2003 (Volume 68, Number 172)]
[Page 52784-52786]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
Petition To Delist Astragalus magdalenae var. peirsonii (Peirson's 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service, make a 90-day finding 
for a petition to remove Astragalus magdalenae var. peirsonii 
(Peirson's milk-vetch) from the Federal List of Threatened and 
Endangered Wildlife and Plants pursuant to the Endangered Species Act 
(ESA) (16 U.S.C. 1531 et seq.). We find that the petition presents 
substantial information indicating that delisting this plant may be 
warranted. We are initiating a status review to determine if delisting 
this species is warranted.

DATES: This finding was made on August 29, 2003. To be considered in 
the 12-month finding on this petition, comments and information should 
be submitted to us by November 4, 2003.

ADDRESSES: Comments, material, information, or questions concerning 
this petition and finding should be sent to the Field Supervisor, 
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 
Hidden Valley Road, Carlsbad, CA 92009. The petition and supporting 
information are available for public inspection by appointment during 
normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, at the above address (telephone: 760-431-



    Section 4(b)(3)(A) of the Endangered Species Act of 1973 (ESA) (16 
U.S.C. 1531 et seq.) requires that we make a finding on whether a 
petition to list, delist, or reclassify a species presents substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. To the maximum extent practicable, this 
finding is to be made within 90 days of receipt of the petition, and 
the finding is to be published promptly in the Federal Register. If we 
find substantial information present, we are required to promptly 
commence a review of the status of the species (50 CFR 424.14). 
``Substantial information'' is defined in 50 CFR 424.14(b) as ``that 
amount of

[[Page 52785]]

information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted.'' Petitioners need 
not prove that the petitioned action is warranted to support a 
``substantial'' finding; instead, the key consideration in evaluating a 
petition for substantiality involves demonstration of the reliability 
and adequacy of the information supporting the action advocated by the 
    On October 25, 2001, we received a petition to delist Astragalus 
magdalenae var. peirsonii (Peirson's milk-vetch) dated October 24, 
2001, from David P. Hubbard, Ted J. Griswold, and Philip J. Giacinti, 
Jr. of Procopio, Cory, Hargreaves & Savitch, LLP, that was prepared for 
the American Sand Association (ASA), the San Diego Off-Road Coalition, 
and the Off-Road Business Association (ASA et al. 2001). Various 
supporting documents were submitted with the petition. The petition 
(ASA et al. 2001) asserts that the original decision to list A. 
magdalenae var. peirsonii was in error, and claims that: (1) The 
original listing decision was made without an actual plant count; (2) 
the original listing relied on data developed prior to the 
implementation of the California Desert Protection Act (CDPA); (3) the 
original listing decision relied on field studies that the Bureau of 
Land Management (BLM) has since determined were biased and 
scientifically unsound; (4) monitoring studies indicate that A. 
magdalenae var. peirsonii is abundant and thriving; and (5) plant 
counts confirm that the Imperial Sand Dunes support more than 100,000 
A. magdalenae var. peirsonii individuals and a healthy seed bank.
    On November 6, 2002 we received a 60-day notice of intent to sue 
from David P. Hubbard et al., representing the ASA et al, citing our 
alleged failure to make the findings on this petition as required by 
the ESA. A complaint was executed in the United States District Court 
for the Southern District of California on February 25, 2003. The 
plaintiffs (ASA et al.) challenge the Service's failure to make both 
the 90-day finding and 12-month finding on petition to delist the 
Peirsons's milk-vetch. In August 2003, the Department of Justice 
entered into a settlement agreement with ASA et al., requiring us to 
make a 90-day finding on this petition by August 29, 2003, and, if the 
90-day finding is that the petition contains substantial information 
that delisting Astragalus magdalenae var. peirsonii may be warranted, a 
12-month finding by May 31, 2004. As part of this settlement agreement, 
the petitioners asked that we also accept and consider the information 
provided in Phillips and Kennedy (2002) when making our findings.
    The factors for listing, delisting, or reclassifying species are 
described at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction, (2) recovery, or (3) a determination that 
the original data used for classification of the species as endangered 
or threatened were in error.

Biology and Distribution

    Astragalus magdalenae var. peirsonii occurs essentially as one 
population of scattered colonies within the Algodones Dunes in the 
Sonoran Desert of Imperial County, California. The Algodones Dunes are 
often called the Imperial Sand Dunes, a designation derived from a land 
use area called the Imperial Sand Dunes Recreation Area established by 
BLM. The habitat for A. magdalenae var. peirsonii is slopes and hollows 
of wind-blown desert dunes, chiefly along a northwest-to-southeast 
orientation on the BLM-managed land. The distribution and relative 
abundance of the plant varies from place to place and year to year 
(WESTEC Services, Inc. (WESTEC) 1977; Willoughby 2000, 2001; Thomas 
Olsen Associates, Inc. (TOA) 2001; Phillips and Kennedy 2002). The 
tendency of plants to be found in patches is likely due to the 
localized dispersal of the fruits and seeds, as well as dune morphology 
and differences in local rainfall patterns.
    Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) is an 
erect to spreading, short-lived perennial in the Fabaceae (Pea family) 
(Barneby 1959, 1964). Plants may reach 20 to 70 centimeters (cm) (8 to 
27 inches (in)) in height and develop taproots (Barneby 1964) that 
penetrate to the deeper, more moist sand. The stems and leaves are 
covered with fine, silky appressed (flat on surface) hairs. The small, 
narrow, widely spaced leaflets may fall off in response to drought. The 
purple flowers are arranged in 10-to 17-flowered axillary racemes. 
Individuals are reportedly able to flower in their first growing season 
(Barneby 1964; Romspert and Burk 1979). Romspert and Burk (1979) found 
inflorescences present from December through at least April. The fruits 
are 2 to 3.5 cm (0.8 to 1.4 in) long and inflated. Phillips and Kennedy 
(2002) determined that the mean number of fruits per older plant was 
171.5 compared with an estimated 5 fruits per plant for plants said to 
be in their first year. The seeds, among the largest known for any 
species of Astragalus (Bowers 1996), average 15 milligrams (mg) (less 
than 0.1 ounces (oz)) each in weight and are up to 4.7 millimeters (mm) 
(0.2 in) in length. There are 11 to 16 seeds per fruit (Barneby 1964). 
Astragalus lentiginosus var. borreganus, easily distinguished by its 
conspicuously broad leaflets, is the only similar taxon in the area.
    Seeds are dispersed by three basic mechanisms: (1) Falling from 
partially open fruits that remain on the plant; (2) falling from fruits 
that are blown across the sand; or (3) falling to the ground within the 
fruit (Barneby 1964; Bowers 1986; Phillips and Kennedy 2002). Wind 
dispersal of fruits across the surface of the dunes is likely the 
primary long-distance dispersal method for this plant. The fruits and 
seeds tend to accumulate on the leeward side of the dunes. These seeds 
may be found scattered on the sand surface at times.
    The number and location of standing plants may vary considerably 
from year to year due to a number of factors, including the amount, 
timing, and location of rainfall; temperature; soil conditions; and the 
extent and nature of the seed bank. For example, along the BLM 
transects, Willoughby (2001) reported that 942 plants were found in 
1999 and only 86 plants in 2000, both low rainfall years compared to 
the wetter year 1998, when 5,064 plants were found. In 2001, 71,926 
plants were reported (TOA 2001), but this single census does not 
provide any information on population trend. Plant mortality over the 
short term may also be considerable (Phillips and Kennedy 2002).
    In 1979, Astragalus magdalenae var. peirsonii was listed by the 
State of California as an endangered species under the California 
Endangered Species Act (CESA). On October 6, 1998, we listed A. 
magdalenae var. peirsonii as threatened (63 FR 53596). We made this 
determination based upon the best scientific and commercial information 
available at the time. As stated and documented in the final listing 
rule, this action was taken, in part, because of threats of increasing 
habitat loss from off-highway vehicle (OHV) use, associated 
recreational development, destruction of plants, and lack of 
protections afforded the plant on Federal lands. We did not designate 
critical habitat for A. magdalenae var. peirsonii at the time of 
listing because such action was not considered prudent at that time.

[[Page 52786]]


    We have reviewed the petition and literature cited in and provided 
with the petition and considered it with other information in our 
files. We have found that the petition presents substantial information 
indicating that delisting Astragalus magdalenae var. peirsonii may be 
warranted. The petitioners have suggested that A. magdalenae var. 
peirsonii is a species that exists, in many years, largely as a seed 
bank, with relatively few standing individuals above ground. At the 
time we listed A. magdalenae var. peirsonii as a threatened species (63 
FR 53596), we did not have--and so could not consider--information 
about the extent of the seed bank of this species. Petitioners have 
provided information suggesting the species may have a healthy seed 
bank (Phillips and Kennedy 2002), even though standing plants are 
frequently rare. Surveys conducted since we listed this species in 1998 
indicate that, in some years, probably in response to increased 
precipitation, the number of standing plants considerably increases 
(TOA 2001; Willoughby 2000, 2001). While significant questions remain 
about the extent and viability of the seed bank, and the contribution 
of the increased numbers of standing plants in 1998 (Willoughby 2000) 
and 2001 (TOA 2001) to the seed bank and the persistence of this 
species into the future, we consider these to be issues relevant to the 
listing determination and warranting further investigation. 
Accordingly, we believe it is appropriate to consider this information, 
and any other new information available about this species and the 
threats it may face, in a status review.

Public Information Solicited

    When we make a finding that substantial information exists to 
indicate that listing or delisting a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information on Astragalus magdalenae var. peirsonii. This includes 
information regarding historical and current distribution, biology and 
ecology, ongoing conservation measures for the species and its habitat, 
and threats to the species and its habitat. We also request information 
regarding the adequacy of existing regulatory mechanisms. We request 
any additional information, comments, and suggestions from the public, 
other concerned governmental agencies, Tribes, the scientific 
community, industry or environmental entities, or any other interested 
parties concerning the status of A. magdalenae var. peirsonii.
    If you wish to comment, you may submit your comments and materials 
concerning this finding to the Field Supervisor, Carlsbad Fish and 
Wildlife Office (see ADDRESSES section). Our practice is to make 
comments, including names and home addresses of respondents, available 
for public review during regular business hours. Respondents may 
request that we withhold a respondent's identity, as allowable by law. 
If you wish us to withhold your name or address, you must state this 
request prominently at the beginning of your comment. However, we will 
not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the above address.

References Cited

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


    The authority for this action is section 4 of the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).

    Dated: August 29, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 03-22600 Filed 9-4-03; 8:45 am]