1999 Federal Register, 28403; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: May 26, 1999 (Volume 64, Number 101)]

[Rules and Regulations]

[Page 28403-28413]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr26my99-17]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE25

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for the Plant Eriogonum apricum (inclusive of vars.

apricum and prostratum) (Ione Buckwheat) and Threatened Status for the

Plant Arctostaphylos myrtifolia (Ione Manzanita)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We determine endangered status pursuant to the Endangered

Species Act of 1973, as amended (Act), for Eriogonum apricum (inclusive

of vars. apricum and prostratum) (Ione buckwheat). We also determine

threatened status for Arctostaphylos myrtifolia (Ione manzanita). These

two species occur primarily on soils derived from the Ione Formation in

Amador and/or Calaveras counties in the central Sierra Nevada foothills

of California and are imperiled by one or more of the following

factors--mining, clearing of vegetation for agriculture and fire

protection, disease, inadequate regulatory mechanisms, habitat

fragmentation, residential and commercial development, changes in fire

frequency, and continued erosion due to prior off-road vehicle use.

Existing regulatory mechanisms do not adequately protect these species.

Random events increase the risk to the few, small populations of E.

apricum. This action implements the protection of the Act for these

plants.

EFFECTIVE DATE: June 25, 1999.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at the U.S. Fish and

Wildlife Service, Sacramento Field Office, 3310 El Camino Avenue, Suite

130, Sacramento, California 95821-6340.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp (telephone 916/979-2120)

and/or Jason Davis (telephone 916/979-2749), staff biologists at the

above address (facsimile 916/979-2723).

SUPPLEMENTARY INFORMATION:

Background

Arctostaphylos myrtifolia (Ione manzanita), Eriogonum apricum var.

apricum (Ione buckwheat), and Eriogonum apricum var. prostratum (Irish

Hill buckwheat) are found primarily in western Amador County, about 70

kilometers (km) (43.5 miles (mi)) southeast of Sacramento in the

central Sierra Nevada foothills of California. Most populations occur

at elevations between 90 and 280 meters (m) (295 and 918 feet (ft)). A

few isolated occurrences of A. myrtifolia occur in adjacent northern

Calaveras County.

Both species included in this rule occur primarily on ``Ione

soils'' which have developed along a 40 mile stretch of the Ione

Formation. The Ione Formation, comprised of a unique Tertiary Oxisol,

consisting of fluvial (stream or river produced), estuarine, and

shallow marine deposits (Bureau of Land Management (BLM) 1989), was

developed under a subtropical or tropical climate during the Eocene

(35-57 million years ago). The Ione soils in the area are coarse-

textured and exhibit soil properties typical of those produced under

tropical climates such as high acidity, high aluminum content, and low

fertility (Singer 1978). These soils and the sedimentary deposits with

which they are associated also contain large amounts of commercially

valuable minerals including quartz sands, kaolinitic (containing a

hydrous silicate of aluminum) clays, lignite (low-grade coal), and

possible gold-bearing gravels (Chapman and Bishop 1975). The nearest

modern-day relatives to these soils occur in Hawaii and Puerto Rico

(Singer 1978).

The vegetation in the Ione area is distinctive enough to be

designated as ``Ione chaparral'' in a classification of plant

communities in California (Holland 1986). Stebbins (1993) characterized

the Ione chaparral as an ecological island, which he defined as a

relatively small area with particular climatic and ecological features

that differ significantly from surrounding areas. This plant community

occurs only on very acidic, nutrient-poor, coarse soils, and is

comprised of low-growing, heath-like shrubs and scattered herbs

(Holland 1986). The dominant shrub is Arctostaphylos myrtifolia, which

is narrowly endemic to the area. Ione chaparral is restricted in

distribution to the vicinity of Ione in Amador County, and a few local

areas of adjacent northern Calaveras County where the community is

estimated to cover 2,430 hectares (ha) (6,002 acres (ac)) (California

Natural Diversity Database (CNDDB) 1997). The endemic plants that grow

here are thought to do so because they can tolerate the acidic,

nutrient-poor conditions of the soil which exclude other plant species.

The climate of the area may be moderated by its location due east of

the Golden Gate (Gankin and Major 1964, Roof 1982).

Discussion of the Two Species

Charles Parry (1887) described Arctostaphylos myrtifolia based upon

[[Page 28404]]

material collected near Ione, California. Subsequent authors variously

treated this taxon as Uva-ursi myrtifolia (Abrams 1914), A. nummularia

var. myrtifolia (Jepson 1922), Schizococcus myrtifolius (Eastwood 1937,

cited in Gankin and Major 1964), and Arctostaphylos uva-ursi ssp.

myrtifolia (Roof 1982). Philip Wells (1993), in his treatment of

California Arctostaphylos, maintained the species as A. myrtifolia.

Arctostaphylos myrtifolia is an evergreen shrub of the heath family

(Ericaceae) that lacks a basal burl. Attaining a height of generally

less than 1.2 m (3.9 ft), plants appear low and spreading. The bark is

red, smooth, and waxy. Olive green, narrowly elliptic leaves are 6 to

15 millimeters (mm) (0.2 to 0.6 inches (in.)) long. Red scale-like

inflorescence (flower cluster) bracts are 1 to 2 mm (0.04 to 0.08 in.)

long. White or pinkish urn-shaped flowers appear from January to

February. The fruit is cylindric. The species depends almost entirely

on periodic fire events to promote seed germination (Wood and Parker

1988). Arctostaphylos myrtifolia can be distinguished from other

species in the same genus by its smaller stature and the color of its

leaves.

Arctostaphylos myrtifolia is reported from 17 occurrences (CNDDB

1997). Because most of these occurrences are based on the collection

localities of individual specimens, it is uncertain how many stands

these 17 occurrences represent. Arctostaphylos myrtifolia may occur in

about 100 individual stands which cover a total of about 404.7 ha

(1,000 ac) (Roy Woodward, Bechtel, in litt. 1994). It occurs primarily

on outcrops of the Ione Formation within an area of about 91 square

(sq.) km (35 sq. mi) in Amador County. In addition, a few disjunct

populations occur in Calaveras County. The populations range in

elevation from 60 to 580 m (190 to 1900 ft), with the largest

populations occurring at elevations between 90 and 280 m (280 and 900

ft) (Wood and Parker 1988). Arctostaphylos myrtifolia is the dominant

and characteristic species of Ione chaparral, where it occurs in pure

stands. It also occurs in an ecotone (transition area between two

adjacent ecological communities) with surrounding taller chaparral

types, but it does not persist if it is shaded (R. Woodward, in litt.

1994). Mining, disease, clearing of vegetation for agriculture and fire

protection, habitat fragmentation, residential and commercial

development, changes in fire frequency, and ongoing erosion threaten

various populations of this plant (CNDDB 1997; Ed Bollinger, Acting

Area Manager, BLM, Folsom Resource Area, in litt. 1994; M. Wood, in

litt. 1994) and existing regulatory mechanisms do not adequately

protect the species. The amount of A. myrtifolia habitat already lost

to mining cannot be quantified because information regarding the total

mineral production as well as the total acreage of land newly disturbed

by a mining operation is proprietary (Maryann Showers, California

Department of Mining and Geology, pers. comm. 1994). Although the exact

area of habitat lost is unknown, a significant loss of habitat has

occurred (Roof 1982; Stebbins 1993; Michael K. Wood, Botanical

Consultant, in litt. 1994). Arctostaphylos myrtifolia occurs primarily

on private or non-Federal lands. One occurrence on BLM land is within

the Ione Manzanita Area of Critical Environmental Concern (ACEC). Two

additional occurrences are partially on BLM lands. Four small, pure

populations and several smaller, mixed populations also occur on the

State-owned Apricum Hill Ecological Reserve managed by the California

Department of Fish and Game (CDFG) (Wood and Parker 1988).

Eriogonum apricum comprises two varieties--Eriogonum apricum var.

apricum and E. apricum var. prostratum. Descriptions are provided below

for each of the varieties.

Howell (1955) described the species Eriogonum apricum (Ione

buckwheat) in 1955 based on a specimen collected in the foothills of

the Sierra Nevada near Ione, Amador County, California. Myatt (1970)

described a variety of the Ione buckwheat, E. apricum var. prostratum

(Irish Hill buckwheat) in 1970. According to the rules for botanical

nomenclature, when a new variety is described in a species not

previously divided into infraspecific taxa, an autonym (an

automatically generated name) is created. In this case, the autonym is

Eriogonum apricum var. apricum.

Both varieties, Eriogonum apricum vars. apricum and prostratum, are

perennial herbs in the buckwheat family (Polygonaceae). Eriogonum

apricum var. apricum is glabrous (smooth, without hairs or glands) and

grows upright to 8 to 20 centimeters (cm) (3 to 8 in.) in height. Its

leaves are basal, round to oval, and 3 to 5 mm (0.1 to 0.2 in.) wide.

The calyx (outer whorl of flower parts) is white with reddish midribs.

Eriogonum apricum var. apricum flowers from July to October, and is

restricted to nine occurrences occupying a total of approximately 4 ha

(10 ac) (The Nature Conservancy (TNC) 1984) on otherwise barren

outcrops within the Ione chaparral. Of the nine known occurrences of E.

apricum var. apricum, one is partially protected by CDFG (CNDDB 1997).

Eriogonum apricum var. apricum occurs primarily on private or non-

Federal land; BLM manages one occurrence. Mining, clearing of

vegetation for agriculture and for fire protection, habitat

fragmentation, increased residential development, and erosion variously

threaten the occurrences of this plant. Existing regulatory mechanisms

do not adequately protect this species.

Eriogonum apricum var. prostratum has smaller leaves, a prostrate

(low growing) habit, and an earlier flowering time than E. apricum var.

apricum. The two known occurrences of E. apricum var. prostratum are

restricted to otherwise barren outcrops on less than 0.4 ha (1 ac) in

openings of Ione chaparral on private land. Mining, inadequate

regulatory mechanisms, habitat fragmentation, erosion, and random

events threaten the occurrences of this plant.

Previous Federal Action

Federal government actions on both plants began as a result of

section 12 of the Endangered Species Act of 1973, as amended (16 U.S.C.

1531 et seq.), which directed the Secretary of the Smithsonian

Institution to prepare a report on those plants considered to be

endangered, threatened, or extinct in the United States. The

Smithsonian Institution presented this report, designated as House

Document No. 94-51, to Congress on January 9, 1975. The report included

Arctostaphylos myrtifolia, Eriogonum apricum var. apricum and E.

apricum var. prostratum as endangered species. We published a notice on

July 1, 1975 (40 FR 27823), of our acceptance of the report of the

Smithsonian Institution as a petition within the context of section

4(c)(2) (petition provisions are now found in section 4(b)(3) of the

Act) and our intention thereby to review the status of the plant taxa

named therein. We included the above three taxa in the July 1, 1975,

notice. On June 16, 1976, we published a proposal (41 FR 24523) to

determine approximately 1,700 vascular plant species to be endangered

species pursuant to section 4 of the Act. The list of 1,700 plant taxa

was assembled on the basis of comments and data received by the

Smithsonian Institution and us in response to House Document No. 94-51

and the July 1, 1975, Federal Register publication. We included

Arctostaphylos myrtifolia, E. apricum var. apricum, and E. apricum var.

prostratum in our June 16, 1976, proposal.

We summarized general comments we received in response to the 1976

[[Page 28405]]

proposal in an April 26, 1978, rule (43 FR 17909). The Endangered

Species Act Amendments of 1978 required that we withdraw all proposals

over 2 years old. The Act gave proposals already more than 2 years old

a 1-year grace period. In a December 10, 1979, Federal Register notice

(44 FR 70796), we withdrew our June 16, 1976, proposal, along with four

other proposals that had expired.

We published a notice of review for plants on December 15, 1980 (45

FR 82480), that identified those plants currently being considered for

listing as endangered or threatened. We included Arctostaphylos

myrtifolia, E. apricum var. apricum, and E. apricum var. prostratum as

category 1 candidates for Federal listing in this document. Category 1

taxa were those taxa for which we had on file sufficient information on

biological vulnerability and threats to support preparation of listing

proposals but for which we are precluded from issuing proposed rules by

higher priority listing actions. Our November 28, 1983, supplement to

the notice of review (48 FR 53640) made no changes to the designation

for these taxa.

We revised the plant notice of review again on September 27, 1985

(50 FR 39526), February 21, 1990 (55 FR 6184), and September 30, 1993

(58 FR 51144). In these three notices, we again included Arctostaphylos

myrtifolia, Eriogonum apricum var. apricum and E. apricum var.

prostratum as category 1 candidates. In our February 28, 1996, combined

animal and plant notice of review (61 FR 7596), we discontinued the

designation of multiple categories of candidates, and only former

category 1 species are now recognized as candidates for listing

purposes. We included all three taxa as candidates in that notice.

Section 4(b)(3)(B) of the Act requires the Secretary to make

certain findings on pending petitions within 12 months of their

receipt. Under section 2(b)(1) of the 1982 amendments, all petitions

pending on October 13, 1982, are treated as having been newly submitted

on that date. This was the case for Arctostaphylos myrtifolia,

Eriogonum apricum var. apricum and E. apricum var. prostratum, because

we accepted the 1975 Smithsonian report as a petition. On October 13,

1982, we found that the petitioned listing of these species was

warranted, but precluded by other pending listing actions, in

accordance with section 4(b)(3)(B)(iii) of the Act. We published a

notice of this finding on January 20, 1984 (49 FR 2485). Such a finding

requires recycling the petition, pursuant to section 4(b)(3)(C)(i) of

the Act. We reviewed the finding annually in October of 1983 through

1994.

We published a proposal to list Eriogonum apricum (inclusive of

vars. apricum and prostratum) as endangered and to list Arctostaphylos

myrtifolia as threatened on June 25, 1997 (62 FR 34188). We based the

proposal on information supplied by reports to the CNDDB, and

observations and reports by numerous botanists.

Processing of this final rule conforms with our Listing Priority

Guidance for Fiscal Years 1998 and 1999, published on May 8, 1998 (63

FR 25502). The guidance clarifies the order in which we will process

rulemakings giving highest priority (Tier 1) to processing emergency

rules to add species to the Lists of Endangered and Threatened Wildlife

and Plants (Lists); second priority (Tier 2) to processing final rules

to add species to the Lists, processing proposed rules to add species

to the Lists, processing administrative findings on petitions (to add

species to the Lists, delist species, or reclassify listed species),

and processing a limited number of proposed or final rules to delist or

reclassify species; and third priority (Tier 3) to processing proposed

or final rules to designate critical habitat. Processing of this final

rule is a Tier 2 action.

We updated this rule to reflect any changes in distribution,

status, and threats that occurred since publication of the proposed

rule and to incorporate information obtained during the public comment

period. This additional information did not alter our decision to list

the two species.

Summary of Comments and Recommendations

In the proposed rule published in the June 25, 1997, Federal

factual reports or information that might contribute to the development

of a final rule. The public comment period closed on August 25, 1997.

We contacted appropriate State agencies, county and city governments,

Federal agencies, scientific organizations, and other interested

parties and requested comments. We published a newspaper notice in the

Calaveras Enterprise on July 8, 1997, the Calaveras Prospect and

Stockton Record on July 10, 1997, and in the Amador Ledger Dispatch on

July 11, 1997, which invited general public comment.

In accordance with interagency policy published on July 1, 1994 (59

FR 34270), we solicited the expert opinions of three independent and

appropriate specialists regarding pertinent scientific or commercial

data and assumptions relating to the taxonomy, population status, and

supportive biological and ecological information for the three proposed

plants.

Only one of the three requested reviewers provided comments. This

reviewer supported the listing of both species addressed in this rule

and commented specifically on Arctostaphylos myrtifolia. The reviewer

wished to clarify any confusion that readers of the proposed rule may

have had regarding the taxonomy of A. myrtifolia given the numerous

name changes since 1887. The reviewer emphasized that this taxon is

distinct and cannot be confused with any other manzanita. The numerous

name changes stem from differing opinions among botanists regarding the

relationship of this species to other California manzanitas.

The reviewer stated that Arctostaphylos myrtifolia is adapted to

periodic fire, more specifically, fire recurring probably every 5 to 20

years. Recent suppression of the historic fire frequency has

facilitated the establishment of fungal pathogens contributing to the

demise of A. myrtifolia. The reviewer emphasized that the species could

face serious decline in the future without proper fire management, that

is, controlled burning during the appropriate time of the year and

under proper climatic conditions. We incorporated the comments of the

reviewer into the ``Summary of Factors Affecting the Species'' section

of this rule.

During the comment period, we received comments (i.e., letters,

phone calls, and facsimiles) from a total of 16 individuals or agency

or group representatives concerning the proposed rule. Some people

submitted more than one comment to us. Seven commenters supported the

listing, four commenters opposed the listing, and five commenters were

neutral. One commenter stated his willingness to work with Amador

County, larger landowners, including mine operators, and us to develop

a habitat conservation plan for the long-term benefit of both species.

We organized opposing comments and other comments questioning the

proposed rule into specific issues. We summarized these issues and our

response to each as follows:

Issue 1: Several commenters questioned the adequacy and

completeness of the scientific evidence reported in the proposed rule.

Commenters stated that listing the two plants was premature due to the

lack of

[[Page 28406]]

comprehensive and current science to support the listing.

Service Response: In Accordance with the ``Interagency Cooperative

Policy on Information Standards under the Endangered Species Act,''

published in the Federal Register on July 1, 1994 (59 FR 34271), we

impartially review all scientific and other information to ensure that

any information used to promulgate a regulation to add a species to the

list of threatened and endangered species is reliable, credible, and

represents the best scientific and commercial data available. We used

information received from the CNDDB, knowledgeable botanists, and from

studies specifically directed at gathering information on distribution

and threats to the species addressed in this final rule. We received

information from Federal, State, and local agencies, and consulted

professional botanists during the preparation of the proposed rule. We

documented destruction and loss of habitat and extirpation of

populations of these two plants from a variety of causes. We sought

comments on the proposed rule from Federal, State, and county entities,

species experts, and other individuals. We have incorporated into the

final rule all substantive new data received during the public comment

period. Specific information received that supports listing the two

plant species is summarized in the ``Summary of Factors Affecting the

Species'' section.

Issue 2: One commenter stated that the total extent of known

populations of Eriogonum apricum as cited in the proposed rule is

incorrect. This commenter further stated that there are 10 populations

of E. apricum alone at the Irish Hill project site. Two commenters

stated that several populations of E. apricum var. apricum have been

discovered growing in Sacramento County, several miles north of the

city of Ione, along the Amador/Sacramento County line.

Service Response: Neither commenter provided site-specific

information. We are aware of the 10 populations of E. apricum at the

Irish Hill project site; we referred to these populations in the

proposed rule as one occurrence in the ``Discussion of the Two

Species'' section. An occurrence may have several populations within

it. Because we have received only anecdotal reports of new locations,

we cannot confirm or refute the reports of E. apricum var. apricum in

Sacramento County. The discovery of new populations of E. apricum var.

apricum in Sacramento County, north of the city of Ione, along the

Amador/Sacramento County line, however, is consistent with a verified

occurrence of this species within 1,000 m (3,280.8 ft) of the

Sacramento County line northwest of the city of Carbondale on the Ione

Formation. The Ione Formation occurs in Sacramento County within the

general vicinity of the reported sighting. We believe that undocumented

populations of E. apricum var. apricum likely occur within Sacramento

County, but given the limited amount of potential habitat in Sacramento

County, we do not believe that these potential occurrences represent a

significant expansion of the overall range of the species, or that they

warrant a change in the status of the species.

Issue 3: Several commenters stated that Eriogonum apricum vars.

apricum and prostratum and Arctostaphylos myrtifolia are not restricted

to ``laterite'' (containing an iron-rich subsoil layer) soils as

presented in the proposed rule. In addition, several commenters stated

that the proposed rule inaccurately stated that the soil on which the

two species grow was developed during the Eocene.

Service Response: We received substantial evidence during the

comment period to document that Eriogonum apricum vars. apricum and

prostratum and Arctostaphylos myrtifolia occur on a much wider range of

substrates than was thought at the time we prepared the proposed rule.

However, none of this new information contradicts the claim that all

three taxa occur predominantly on soils developed on various strata of

the Ione Formation, or that the plants are restricted to a narrow range

in western Amador County. The relationship between substrate and the

distribution of these plants, however strong the correlation, is not

the reason we proposed these plants for listing. The specific threats

these taxa face are identified in the ``Summary of Factors Affecting

the Species'' section.

Issue 4: One commenter stated that the greatest potential threat to

Eriogonum apricum is residential development. The commenter further

stated that well-planned mining with reclamation plans that take E.

apricum into account may be the best chance for the species' survival.

Another commenter asserted that the statement in the proposed rule that

the Ione buckwheat and Ione manzanita are imperiled by mining is an

inaccurate statement. The same commenter also noted, however, that

``because of requirements of species diversity and percent of

vegetative cover on mined lands disturbed since 1976 . . . Ione

manzanita and Ione buckwheat are not species that can be considered in

new reclamation plans.''

Service Response: We agree that residential development poses a

significant long-term threat to these species given the substantial

commercial and residential growth of nearby Sacramento. However, the

more immediate threat to the Ione buckwheat and Ione manzanita is the

continued extraction of mineral resources from soils that support these

species. Ninety-five percent of all lands that support Eriogonum

apricum and Arctostaphylos myrtifolia are in private ownership subject

to ongoing and future mining activities. Mining operations are not

required under State law to include locally native plants into their

reclamation plans if these species are not compatible with the desired

land use of the reclaimed site (e.g., grazing, water storage, or

intensive agriculture). For a more detailed description of the threats

these species face, see factors A and D in the ``Summary of Factors

Affecting the Species'' section.

Issue 5: A few commenters stated that there are good opportunities

to reestablish Arctostaphylos myrtifolia on reclaimed mining areas when

a natural seed source occurs nearby or through the spreading of seeds

by mine operators.

Service Response: We are unaware of any studies that document

successful long-term reestablishment of Arctostaphylos myrtifolia

populations on reclaimed mining areas. Mining operations in the Ione

area typically remove the kaolinitic clay minerals and quartz sand that

the species requires for long-term viability. Arctostaphylos myrtifolia

has been shown to reestablish on fire breaks and similar situations

where the original substrate was not removed, and plants have also

established on waste rock piles. We are not aware of any scientific

studies on the success of transplanting or seeding the plants under

field conditions. Moreover, the long-term viability of the plants which

have established on disturbed areas is unknown. Attempts to grow both

Eriogonum apricum and Arctostaphylos myrtifolia off of their

specialized substrate have been unsuccessful. Transplanted seedlings of

E. apricum grew for only about 3 years before dying. Arctostaphylos

myrtifolia seedlings have survived only about 10 years (Roger Raiche,

Horticulturalist, Univ. of California Botanical Garden, Berkeley, in

litt. 1997). For a more complete discussion on this topic, please see

factors D and E in the ``Summary of Factors Affecting the Species''

section.

[[Page 28407]]

Issue 6: Two commenters stated that there are adequate regulatory

mechanisms to protect Eriogonum apricum vars. apricum and prostratum

and Arctostaphylos myrtifolia. These commenters believe that, through

compliance with the California Surface Mining and Reclamation Act

(SMARA) and the California Environmental Quality Act (CEQA), Amador

County has created ordinances and permitting procedures that adequately

protect these species.

Service Response: We believe that the existing regulatory

mechanisms provided in the State, local, and county regulations are

inadequate to protect these three plants. Both CEQA and SMARA can allow

the destruction of these three plant taxa without adequate mitigation

or avoidance. For a complete discussion on this topic, see factor D in

the ``Summary of Factors Affecting the Species'' section and the

``Available Conservation Measures'' section.

Issue 7: One commenter stated that listing will inevitably move

private property into government ownership. Another commenter

questioned what sorts of activities could continue on private land

should these species be formally listed.

Service Response: The Act does not restrict the damage or

destruction of listed plants due to otherwise lawful private activities

on private land beyond any level of protection that may be provided

under State law. Listing the two species as threatened or endangered

will not regulate mining or land clearing for farming, grazing, or fire

protection on private land with no Federal involvement. Other

activities that do not violate the taking prohibitions of section

9(a)(2) of the Act, along with prohibited activities, are discussed

further in the ``Available Conservation Measures'' section. Those

populations of plant species that occur on Federal lands may or may not

be affected by some human activities. If a Federal agency makes the

determination that an activity may affect a population of a listed

plant species, the Federal agency is required to consult with us on the

effects of the proposed action.

Issue 8: One commenter questioned how landowners will know if their

land uses will affect the three plants if critical habitat is not

designated.

Service Response: The public has access to general locational

information on all three of these plants through the CNDDB. In

addition, individuals owning land in these counties who believe that

their actions or activities may result in harm to one of these plants

may, if they desire to help conserve these species, contact us for

technical assistance. We seek cooperation with private landowners on

surveys or other conservation efforts. The complete file for this rule

is available for public inspection, and does contain general

information about where the species occur. We are always willing to

assist the public in matters aimed at protecting sensitive species. See

the ``Critical Habitat'' section for further discussion of our decision

not to designate critical habitat for these species.

Issue 9: One commenter inquired whether private landowners would be

allowed to participate in the development of a recovery plan for these

species.

Service Response: The recovery planning process will involve

species experts, scientists, and interested members of the public in

accordance with the interagency policy on recovery plans under the Act,

published on July 1, 1994 (59 FR 34272). The information and public

education needs for successful recovery of these species are many, and

we will address these needs in the recovery plan.

Issue 10: One commenter stated that the proposed rule should be

withdrawn because we lack the authority under the Commerce Clause of

the Constitution to regulate species that are found solely in one State

and are neither harvested for commercial purposes nor transported

across state lines.

Service Response: A recent decision in the United States Court of

Appeals for the District of Columbia Circuit (National Association of

Homebuilders 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 Arctostaphylos myrtifolia and Eriogonum apricum is

constitutional.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, we have determined that Arctostaphylos myrtifolia should be

classified as a threatened species and Eriogonum apricum (inclusive of

vars. apricum and prostratum) should be classified as an endangered

species. We followed the 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 endangered or threatened

due to one or more of the five factors described in section 4(a)(1).

These factors and their application to Arctostaphylos myrtifolia C.

Parry (Ione manzanita) and Eriogonum apricum J. Howell (inclusive of

vars. apricum and prostratum R. Myatt) (Ione buckwheat) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of Their Habitat or Range

Nearly all populations of both plant species occur on private or

non-Federal land. The primary threat facing both species is the ongoing

and threatened destruction and modification of their habitat by mining

for silica sand, clay, lignite, common sand and gravel; and reclamation

of mined lands involving establishment of vegetation with which these

species cannot co-exist. A lesser degree of threat is posed by

commercial or residential development, clearing for agriculture and

fire protection, and continued erosion due to previous fireline

construction and driver training for California Department of Forestry

and Fire Protection (CDFFP) employees.

The habitat of Arctostaphylos myrtifolia and Eriogonum apricum

occurs in areas that contain valuable minerals. Clay mining began in

the Ione area around 1860. Since that time, the Ione area has produced

about a third of the fire clay in California (Chapman and Bishop 1975).

Lignite, a low-grade coal, also has been mined in the Ione area since

the early 1860s, initially for fuel, but more recently for wax used for

industrial purposes. Chapman and Bishop (1975) reported the Ione

lignites were the only lignites used commercially in the United States

in the production of a specialized wax (montan wax). Quartz sand used

in making glass containers, and laterite used for making cement also

are commercially mined in the Ione area (Chapman and Bishop 1975).

Common sands and gravels are also mined for various uses. Mining of all

of these deposits has resulted in the direct removal of habitat for

both plant species (Wood and Parker 1988; V. Thomas Parker, Professor

of Biology, San Francisco State University, in litt. 1994; M. Wood, in

litt. 1994). Strip mining of silica for glass and clay for ceramics and

industrial filters has extirpated (caused extinction of) populations of

A. myrtifolia north and south of Highway 88 (Roof 1982).

By 1982, a significant amount of habitat already had been lost

(Roof 1982, Stebbins 1993; M. Wood, in litt. 1994). The exact amount of

habitat loss

[[Page 28408]]

to date cannot be quantified because much information regarding the

total mineral production as well as the total acreage of land newly

disturbed by a mining operation is proprietary (M. Showers, pers. comm.

1994). Fifteen active surface mines on private land near Ione continue

to remove the habitat of both plants; approved reclamation plans

identify surface removal of greater than 1,400 ha (3,500 ac) (CDFG

1991, Mining Reports 1976-1993; V.T. Parker, in litt. 1994; M. Wood, in

litt. 1994). Based on an estimate derived from mining reports on file

at California Department of Geology and Mines, over half of the Ione

chaparral habitat, numerous stands of Arctostaphylos myrtifolia, and

most of the occurrences of Eriogonum apricum occur within areas that

will be impacted by the 15 mines (Mining Reports 1976-1993). Mining has

eliminated several populations of A. myrtifolia south of Ione since

1990 (V.T. Parker, in litt. 1994). If approved, the East Lambert

Project, a proposed open pit to mine clay, lignite, and silica, would

remove part of a population of A. myrtifolia. Clay mining threatens one

of the two remaining occurrences of E. apricum var. prostratum (CDFG

1991). The second occurrence is not protected and potentially could be

mined (CDFG 1991). Most of the nine occurrences of E. apricum var.

apricum occur on private land that is not protected and could be mined.

As discussed in factor D of this section, mining results in

conversion of former habitat to rangeland, pasture, and other

agricultural uses; landowners do not restore the original plant

community that was lost when the area was mined. Additionally, once the

area is mined, the specialized substrate required by the plants may no

longer be present. This type of disturbance permanently precludes

restoration of habitat suitable for Arctostaphylos myrtifolia and

Eriogonum apricum. To a lesser extent, land conversion to grazing and

agriculture also has degraded or destroyed the habitat for these plants

(Wood and Parker 1988; V.T. Parker, in litt. 1994; M. Wood, in litt.

1994). Both activities continue to pose threats to the habitat of the

subject plant taxa.

Commercial and residential development also threatens the habitat

of Arctostaphylos myrtifolia. In 1993, a 43 ha (106 ac) parcel in the

city of Ione reported to have A. myrtifolia was cleared, presumably to

facilitate future development (Randy L. Johnsen, Ione City

Administrator, in litt. 1994). The Amador County master plan has zoned

an area in the northern Ione chaparral near Carbondale for industrial

uses. This area of about 75 ha (185 ac) is proposed to be developed

over the next 10 years (Ron Mittlebrunn, Amador Council of Economic

Development, pers. comm. 1994). Zoning for most lands outside the city

of Ione permits a density of one house on 16 ha (40 ac) (Gary Clark,

Amador County Planning Department, in litt. 1994). Habitat loss and

degradation outside the city of Ione results from development of small

ranchettes and associated clearing for fire protection, pastures,

buildings, and infrastructure (G. Clark, in litt. 1994). Clearing

destroys individual plants of both species and fragments and degrades

the remaining habitat.

Mining operations, land clearing for agriculture, and commercial

and residential development, have fragmented and continue to fragment

and isolate the habitat of Arctostaphylos myrtifolia in Amador County.

Habitat fragmentation may disrupt natural ecosystem processes by

changing the amount of incoming solar radiation, water, wind, and/or

nutrients (Saunders et al. 1991), and further exacerbates the impacts

of mining, off-road vehicle use, and other human activities.

Training activities by the CDFFP caused the degradation of the

population of Arctostaphylos myrtifolia occurring on the BLM Ione

Manzanita ACEC. Building firelines and conducting driver training

courses resulted in a criss-crossing of roads and trails within the

ACEC that reduced and fragmented the habitat (BLM 1989). Although these

practices were discontinued in 1991, the roads have not revegetated

naturally, and continued erosion of the roads and adjacent habitat

remains a concern (E. Bollinger, in litt. 1994). The BLM has requested

our technical assistance regarding the restoration of A. myrtifolia to

the ACEC (E. Bollinger, in litt. 1994).

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Overutilization is not currently known to be a factor for the two

plants. However, increased publicity from the proposed and final

listing rules may result in unrestricted collecting of Eriogonum

apricum for scientific or horticultural purposes or excessive visits

(and possibly trampling) by individuals interested in seeing rare

plants.

C. Disease or Predation

Livestock graze where one population of Eriogonum apricum var.

prostratum occurs, but grazing is not considered as harmful (CNDDB

1997). An unidentified fungal pathogen has caused major die-back of

partial or entire stands of Arctostaphylos myrtifolia throughout its

range (Wood and Parker 1988; M. Wood, in litt. 1994). The majority of

populations of A. myrtifolia show signs of die-back. The fungal disease

is a serious problem for the populations south of Ione (M. Wood, pers.

comm. 1994). Stands along Highway 88 that were healthy a few years ago

are apparently being killed with little evidence of seedling

regeneration (Neil Havlik, Solano County Farmland and Open Space

Foundation, pers. comm. 1994). The fungal problems are clearly due to

senescence (extreme aging) of older individuals and pathogen loads that

build up with crowding and accumulation of organic debris due to fire

suppression (R. Raiche, in litt. 1997). To learn more about the

management needs of A. myrtifolia, Wood and Parker conducted a series

of controlled burns to test the regeneration of stands that had no,

partial, and complete die-back. Stands that the fungus completely

killed before burning did not regenerate. Healthy and partially

affected stands regenerated, but study results did not determine

whether this regeneration will result in healthy stands (M. Wood, in

litt. 1994).

D. The Inadequacy of Existing Regulatory Mechanisms

Eriogonum apricum vars. apricum and prostratum are listed as

endangered under the California Endangered Species Act (CESA) (chapter

1.5 section 2050 et seq. of the California Fish and Game Code and Title

14 California Code of Regulations 670.2). Individuals are required to

obtain a management authorization from CDFG to possess or ``take'' a

listed species under the CESA. Although the ``take'' of State-listed

plants is prohibited (California Native Plant Protection Act, chapter

10 sec. 1908 and CESA, chapter 1.5 sec. 2080), State law exempts the

taking of such plants via habitat modification or land use changes by

the owner. This State law does not necessarily prohibit activities that

could extirpate this species. After CDFG notifies a landowner that a

State-listed plant grows on his or her property, State law requires

only that the landowner notify the agency ``at least 10 days in advance

of changing the land use to allow salvage of such a plant'' (Native

Plant Protection Act, chapter 10 sec. 1913). Ten days may not allow

adequate time for agencies to coordinate the salvage of the plants.

Moreover, salvage is an outdated and biologically inappropriate

mitigation that is inconsistent with measures implemented through

section 7 of the Act. California Senate Bill 879,

[[Page 28409]]

passed in 1997 and effective January 1, 1998, requires individuals to

obtain a section 2081(b) permit from CDFG to take a listed species

incidental to otherwise lawful activities, and requires full mitigation

of all impacts and successful implementation of all measures feasible.

The ability of these requirements to protect species has not been

tested, and we will need several years to evaluate their effectiveness

in conserving species.

The California Environmental Quality Act of the California Public

Resources Code (chapter 2 sec. 21050 et seq.) requires a 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, now undergoing amendment, 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 are given the same protection as species officially listed

under 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 deciding that overriding

considerations make mitigation infeasible. In the latter case, the

State may approve projects that cause significant environmental damage,

such as the destruction of State-listed endangered species. The

protection of Eriogonum apricum var. apricum, E. apricum var.

prostratum, and Arctostaphylos myrtifolia under CEQA is, therefore,

dependent upon the discretion of the lead agency.

Section 21080(b) of CEQA allows certain projects to be exempted

from the CEQA process. The State may approve or carry out ministerial

projects, those projects that the public agency must approve after the

applicant shows compliance with certain legal requirements, without

undertaking CEQA review. Examples of ministerial projects include final

subdivision map approval and most building permits (Bass and Herson

1994). In addition, recent proposed revisions to CEQA guidelines, if

made final, may weaken protection for threatened, endangered, and other

sensitive species.

The California Surface and Mining Reclamation Act (SMARA) of 1975

(California Public Resources Code chapter 9 sec. 2710 et seq.) requires

preventing or minimizing adverse environmental effects and reclaiming

mined lands to a useable condition that is readily adaptable for

alternative land uses. Although SMARA requires reclamation for mining

activities, the standards for reclamation and the success of any

revegetation is judged on the approved end use of the land. Approved

examples of these end uses for mining activities within the Ione area

include water storage for irrigation, grazing, rangeland, seeding with

grasses for pasture, and intensive agriculture (Mining Reports 1976-

1993). SMARA does not require replacement of the same vegetation type,

species, or percentage of vegetation cover as the habitat that is lost.

No approved mining reclamation plans included measures to attempt

restoration of either Arctostaphylos myrtifolia or Eriogonum apricum or

the Ione chaparral plant community, although one plan indicated an

intention to allow A. myrtifolia, known to occur on the site, to re-

establish itself (Mining Reports 1976-1993). We received a description

of a reclamation project during the public comment period on the

proposed rule (Mike Kizer, Ione Minerals & Refractories, in litt.

1997). An area previously stripped of all soil, vegetation, and

overburden is contoured to a 3:1 slope. All vegetation growing on

another area where A. myrtifolia is growing is crushed with a

bulldozer. The crushed vegetation and soil is scraped and spread

directly on the newly established slope. The site is then seeded with a

mixture of non-native legumes and grasses and fertilized and limed.

Mulch is then applied for erosion control. Based on this description of

what is presumably a typical reclamation project, we maintain that land

reclamation under SMARA establishes only a goal of revegetation of the

site without regard to the original species composition and structure,

not restoration of the original plant community that was lost when the

area was mined. Even though such efforts may result in the

reestablishment of A. myrtifolia on reclaimed sites, they are

inadequate to meet the purpose of the Act, as stated in section 2(b),

to ``provide a means whereby the ecosystems upon which endangered

species and threatened species depend may be conserved.'' Moreover,

SMARA does not apply to many activities, including the prospecting or

extraction of minerals for commercial purposes, or the removal of

material that lies above or between natural mineral deposits in amounts

less than 764.6 cubic m (1,000 cubic yards) in any location of 0.4 ha

(1 ac) or less.

In addition, SMARA is also inadequate for protection of these

species because reclamation plans are required to be submitted only for

operations conducted after January 1, 1976. Surface mining operations

that were permitted or authorized prior to January 1, 1976, are not

required to submit reclamation plans as long as no substantial changes

are made in their operation. The lead agency is responsible for

determining what constitutes a substantial change in operation.

Although the city of Ione General Plan and the Environmental Impact

Report of the Banks annexation to the city of Ione includes the

protection of Arctostaphylos myrtifolia and Eriogonum apricum as a

goal, the City has no regulatory mechanism to stop land clearing and/or

preserve natural habitat (R. Johnsen, in litt. 1994). The County of

Amador has taken steps toward protecting rare plants that grow along

Ione area roadsides through the designation of surveyed sites as

Environmentally Sensitive Areas. The California Department of

Transportation (Caltrans) has also designated a segment of State Route

88 near Ione as a Botanical Management Area (Hartwell 1997). Caltrans

manages this segment to encourage regrowth of native plants that grow

on the highway right-of-way (Hartwell 1997).

Two preserves support occurrences of Arctostaphylos myrtifolia and

Eriogonum apricum var. apricum. The Apricum Hill Ecological Reserve,

managed by the CDFG, is about 15.2 ha (37.5 ac). The Ione Manzanita

ACEC, managed by BLM, covers 35 ha (86 ac). Both preserves provide some

protection of three occurrences of A. myrtifolia and one occurrence of

E. apricum var. apricum; however, they are small sites and subject to

edge effects such as shading by taller shrubs or competition with

invasive vegetation (see factors A and E of this section for more

detail).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

The effects on Arctostaphylos myrtifolia of changing the frequency

of occurrence of fire have not been well-studied. Arctostaphylos

myrtifolia lacks the ability to crown sprout and is killed outright by

fire. It must, therefore, reproduce by seed. Roof (1982) and Woodward

(in litt. 1994) reported abundant post-fire seed germination. Woodward

also reported successful reestablishment of the species on ground

scraped by tractors during a fire suppression operation. The response

[[Page 28410]]

A. myrtifolia to fire appears, however, to be irregular and

unpredictable (Wood and Parker 1988).

Wood reports fire suppression results in stand die-off without

regeneration (M. Wood, in litt. 1994). Scientists have observed mature

individuals in well-established, undisturbed natural stands die. The

species appears to have a low regenerative potential in closed stands

(Wood and Parker 1988). Individual plants are thought to live not much

longer than 50 years (Gankin and Major 1964). Individuals maintained in

cultivation for many years have died suddenly for no apparent reason

(S. Edwards, cited in Wood and Parker 1988).

Fire, therefore, appears to be necessary for the long-term

maintenance of the Ione chaparral community. Controlled burning may be

a viable means of ensuring adequate reproduction of Arctostaphylos

myrtifolia, or perhaps even controlling or preventing loss due to the

fungal pathogen (V.T. Parker, in litt. 1994; M. Wood, in litt. 1994).

Field observations and controlled experiments to date, however, suggest

exercising caution in the use of fire until the reasons for the

variability in the response of A. myrtifolia are better understood.

Progress toward better understanding of the response of A. myrtifolia

to fire was thwarted when long term study sites established to study

this response were graded and cleared by the landowner (V.T. Parker, in

litt. 1994; M. Wood, in litt. 1994).

Reestablishment on mined areas may be difficult for the Ione

chaparral plant community in general, and for Arctostaphylos myrtifolia

in particular, due to a lack of the required specialized substrate and

an absence of proven propagation methods (E. Bollinger, in litt. 1994).

Researchers have attempted a variety of germination and seed bank

experiments on A. myrtifolia without success (Wood and Parker 1988).

Others have also attempted to cultivate the species with little or no

success (R. Gankin, cited in Wood and Parker 1988). Although the plant

has a limited capacity to root from its lower branches, Roof (1982)

reported that he was unaware of even a single plant that had been grown

or cultivated from a rooted branch. The only report of successful

cultivation indicates that the plant requires high soil-acidity and

heavy supplements of soluble aluminum (Roof 1982).

Throughout its range, on habitat edges where better soil

development occurs, Arctostaphylos myrtifolia is being out-competed by

other native vegetation (M. Wood, pers. comm. 1994; R. Woodward, in

litt. 1994). Arctostaphylos viscida (white-leaf manzanita), a more

rapidly growing, taller manzanita, encroaches along the edge of stands

of A. myrtifolia. Arctostaphylos myrtifolia is eliminated when A.

viscida grows tall enough to shade it (M. Wood, pers. comm. 1994; R.

Woodward, in litt. 1994). This is not likely to be a significant threat

to the species, however, because most stands occur on substrates from

which taller shrubs are excluded.

As discussed in factor A, habitat fragmentation may alter the

physical environment. Plant species may disappear from chaparral

fragments that are from 10 to 100 ha (24.7 to 247 ac) in size due to

persistent disturbance and potentially due to change in fire frequency

(Soule et al. 1992). In addition, habitat fragmentation increases the

risks of extinction due to random environmental, demographic, or

genetic events (Soule et al. 1992). The two, small, isolated

populations of Eriogonum apricum var. prostratum, makes random

extinction more likely. Chance events, such as disease outbreaks,

reproductive failure, extended drought, landslides, or a combination of

several such events, could destroy part of a single population or

entire populations. A local catastrophe also could decrease a

population to so few individuals that the risk of extirpation due to

genetic and demographic problems inherent to small populations would

increase.

We have carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

faced by these species in making this final determination. Eriogonum

apricum (inclusive of vars. apricum and prostratum) is verified from 11

occurrences on approximately 4.4 ha (11 ac) in Amador County,

California. The species is endangered by mining, clearing of vegetation

for agriculture and for fire protection, inadequate regulatory

mechanisms, habitat fragmentation, residential and commercial

development, ongoing erosion, and random events. Eriogonum apricum is

in danger of extinction throughout all or a significant portion of its

range and the preferred action is, therefore, to list it as endangered.

Arctostaphylos myrtifolia is reported from 17 sites, and estimated to

occur in a total of about 100 stands covering about 404.7 ha (1,000 ac)

in Amador County, with a few occurrences in Calaveras County. It is

threatened by mining, disease, clearing of vegetation for agriculture

and for fire protection, inadequate regulatory mechanisms, habitat

fragmentation, increased residential development, and changes in fire

frequency. Although A. myrtifolia faces many of the same threats as E.

apricum, the significantly wider range and greater number of

populations and individuals of A. myrtifolia moderate the threats.

Thus, A. myrtifolia is not now in danger of extinction throughout a

significant portion of its range, as is E. apricum, but is likely to

become endangered within the foreseeable future. Therefore, the

preferred action is to list A. myrtifolia as threatened.

Critical Habitat

Section 3 of the Act defines critical habitat as: (i) the specific

areas within the geographical area occupied by a 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 consideration

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,'' as it is defined in section 3(3) of the Act, 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.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

the species is determined to be endangered or threatened. The

regulations (50 CFR 424.12(a)(2)) state that designation of critical

habitat is not determinable when one or both of the following

situations exist--(1) information sufficient to perform required

analysis of the impacts of the designation is lacking, or (2) the

biological needs of the species are not sufficiently well known to

permit identification of an area as critical habitat. 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.

We find that designation of critical habitat is not prudent for

Arctostaphylos myrtifolia and Eriogonum apricum, because of increased

degree of threat to each species and lack of benefit. The detriment to

the species outweighs any

[[Page 28411]]

benefit that such designation may provide. The reasons for not

designating critical habitat for these species is discussed below.

All three occurrences of Arctostaphylos myrtifolia on Federal lands

are managed by the BLM; one of these occurrences lies within the Ione

Manzanita ACEC. On Federal lands, modification of occupied habitat by

any action authorized by the BLM is unlikely to occur without

consultation under section 7 of the Act because BLM managers are well-

aware of the presence and locations of A. myrtifolia (BLM 1989; E.

Bollinger, in litt. 1994). Establishment of the ACEC indicates that the

BLM will give the protection of the rare plant community on this parcel

the highest priority in all management decisions (E. Bollinger, in

litt. 1994). The BLM prohibits grazing in the ACEC, and has implemented

erosion control measures on an off-road vehicle course previously used

by CDFFP. In addition, the BLM has functionally withdrawn the ACEC and

other habitats known to be occupied by the species from mineral entry

(E. Bollinger, in litt. 1994; Al Franklin, Botanist, BLM, Folsom

Resource Area, pers. comm. 1998) and has developed a management plan

for the ACEC (BLM 1989). The BLM has also authorized experimental

transplantation studies on the ACEC (Garland 1997). We believe,

therefore, that designation of critical habitat on Federal land would

confer no additional benefit to the species beyond that which is

already afforded by current management.

Arctostaphylos myrtifolia faces human-caused threats (see factors A

and E in ``Summary of Factors Affecting the Species'' section) and

occurs predominately on private lands. Vandalism of A. myrtifolia has

already occurred. A 43-hectare (106-acre) parcel of land previously

identified in a public document as occupied habitat for this species

was cleared in 1993, presumably to facilitate future development (R.

Johnsen, in litt. 1994). A second incident of vandalism occurred in

July 1997 shortly after the proposed listing rule was published in the

Federal Register (Garland 1997). In this second incident, unknown

vandals destroyed a scientific propagation study plot for A. myrtifolia

on lands managed by the BLM.

Eriogonum apricum is known from only 11 verified populations

covering an estimated total of 4.5 ha (11 ac) of habitat. Eriogonum

apricum occurs in the same general area and on similar substrates as

Arctostaphylos myrtifolia which has been vandalized as described above.

Because of its few populations, E. apricum is especially vulnerable to

impacts from loss of individuals or habitat damage due to vandalism.

The publication of precise maps and descriptions of critical

habitat in the Federal Register, as required for the designation of

critical habitat, however, would further increase the degree of threat

to these species from vandalism and could contribute to their decline

by making locational information readily available. Critical habitat

designation requires publication of proposed and final rules in the

Federal Register including both maps and specific descriptions of

critical habitat using reference points and lines that can be matched

to standard topographic maps of the area (see 16 U.S.C.

1533(b)(5)(A)(I) and (6)(A); 50 CFR 424.12(c), 424.16(a) and

424.18(a)). Once published in the Federal Register, proposed and final

rules are readily available over the Internet, where complete copies,

including maps, may be downloaded. The Act also requires us to publish

a notice of any critical habitat proposal in a newspaper of general

circulation and hold a public hearing upon request (16 U.S.C.

1533(b)(5)(D) and (E)). While the listing process provides the public

with general information about the habitat of a species and where a

species might occur in general terms, critical habitat designation

makes more specific locational information readily available to any

would-be vandal.

We find, therefore, that the increased degree of threat to

Arctostaphylos myrtifolia and Eriogonum apricum from vandalism and

habitat destruction outweigh any benefits that might derive from the

designation of critical habitat.

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 encourages and results in

conservation actions by Federal, State, local agencies, private

organizations, and individuals. The Act provides for possible land

acquisition and cooperation with the States and requires development of

recovery plans for all listed species. We discuss the protection

required of Federal agencies and the prohibitions against certain

activities involving listed plants 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 being 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 us

on any action that is likely to jeopardize the continued existence of a

species proposed for listing or result in destruction or adverse

modification of proposed critical habitat. If we subsequently list a

species, 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 the 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.

Almost all of the occurrences for both species are on private land.

Three occurrences of Arctostaphylos myrtifolia and one occurrence of

Eriogonum apricum var. apricum exist entirely or partially on Federal

land managed by the BLM. Other potential Federal involvement includes

the construction and maintenance of roads and highways by the Federal

Highway Administration (two populations of E. apricum var. apricum

occur along rights-of-way owned by Caltrans).

Listing these two plant species would provide for development of a

recovery plan (or plans) for them. Such plan(s) would bring together

both State and Federal efforts for conservation of the plants. The

plan(s) would establish a framework for agencies to coordinate

activities and cooperate with each other in conservation efforts. The

plan(s) would set recovery priorities and estimate costs of various

tasks necessary to accomplish them. It also would describe site-

specific management actions necessary to achieve conservation and

survival of the two plants. Additionally, pursuant to section 6 of the

Act, we would be more likely to grant funds to affected States for

management actions promoting the protection and recovery of these

species.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all endangered or

threatened plants. All prohibitions of section 9(a)(2) of the Act,

implemented by 50 CFR 17.61 for endangered plants and 17.71 for

threatened plants, apply. These prohibitions, in part, make it illegal

for any person subject to the jurisdiction of the United States to

import or export, transport in interstate or foreign commerce in the

course of a commercial activity, sell or offer for sale in interstate

or foreign commerce, or remove and

[[Page 28412]]

reduce the species 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, including

state criminal trespass law. Section 4(d) of the Act allows for the

provision of such protection to threatened species through regulation.

This protection may apply to Arctostaphylos myrtifolia in the future if

regulations are promulgated. Seeds from cultivated specimens of

threatened plants are exempt from these prohibitions provided that

their containers are marked ``Of Cultivated Origin'' on the shipping

containers. Certain exceptions to the prohibitions apply to our agents

and agents of State conservation agencies.

It is our policy (59 FR 34272) to identify to the maximum extent

practicable at the time a species is listed those activities that would

or would not constitute a violation of section 9 of the Act. The intent

of this policy is to increase public awareness of the effect of the

listing on proposed and ongoing activities within a species' range.

Less than five percent of the occurrences of the two species occur on

public (Federal) lands. Collection, damage, or destruction of these

species on Federal lands is prohibited, although in appropriate cases a

Federal endangered species permit may be issued to allow collection for

scientific or recovery purposes. Such activities on non-Federal lands

would constitute a violation of section 9 when conducted in knowing

violation of California State law or regulations or in violation of

State criminal trespass law.

Activities that are unlikely to violate section 9 include light to

moderate livestock grazing, clearing a defensible space for fire

protection around one's personal residence, and landscaping (including

irrigation) around one's personal residence. Direct questions regarding

whether specific activities will constitute a violation of section 9 to

the Field Supervisor of the Sacramento Field Office (see ADDRESSES

section).

The Act and 50 CFR 17.62 (for endangered plants) and 17.72 (for

threatened plants) also provide for the issuance of permits to carry

out otherwise prohibited activities involving endangered or threatened

plants under certain circumstances. Such permits are available for

scientific purposes and to enhance the propagation or survival or the

species. For threatened plants, permits also are available for

botanical or horticultural exhibition, educational purposes, or special

purposes consistent with the purposes of the Act. It is anticipated

that few trade permits would ever be sought or issued for

Arctostaphylos myrtifolia and Eriogonum apricum, because these species

are not common in cultivation or in the wild. You can obtain copies of

the regulations regarding listed species and inquire about prohibitions

and permits by contacting 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).

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental

Impact Statements 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 Act. 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 new collections of information other

than those already approved under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., and assigned Office of Management and Budget

clearance number 1018-0094. An agency may not conduct or sponsor, and a

person is not required to respond to, a collection of information

unless it displays a currently valid control number. For additional

information concerning permit and associated requirements for

endangered and threatened plants, see 50 CFR 17.62 and 17.72.

References Cited

A complete list of all references cited herein is available upon

request from the Field Supervisor, Sacramento Field Office (see

ADDRESSES section).

Author. The primary authors of this final rule are Kirsten Tarp and

Jason Davis, Sacramento Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulations Promulgation

For the reasons given in the preamble, we amend 50 CFR part 17 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. In Sec. 17.12(h) add the following to the List of Endangered and

Threatened Plants in alphabetical order under ``FLOWERING 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

* * * * * * *

Arctostaphylos myrtifolia........ Ione manzanita...... U.S.A. (CA)........ Ericaceae--Heath... T 661 NA NA

* * * * * * *

Eriogonum apricum................ Ione buckwheat U.S.A. (CA)........ Polygonaceae--Buckw E 661 NA NA

(=Irish Hill heat.

buckwheat).

[[Page 28413]]

(inclusive of vars. apricum and

prostratum).

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: April 16, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-13250 Filed 5-25-99; 8:45 am]

BILLING CODE 4310-55-P