[Federal Register: January 25, 2000 (Volume 65, Number 16)]
[Rules and Regulations]               
[Page 3875-3890]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE53

Endangered and Threatened Wildlife and Plants; Endangered Status 
for ``Erigeron decumbens'' var. ``decumbens'' (Willamette Daisy) and 
Fender's Blue Butterfly (``Icaricia icarioides fenderi'') and 
Threatened Status for ``Lupinus sulphureus'' ssp. ``kincaidii'' 
(Kincaid's Lupine)

AGENCY:  Fish and Wildlife Service, Interior.

ACTION:  Final rule.


SUMMARY:  The U.S. Fish and Wildlife Service (``Service'' or ``we'') 
determines endangered status pursuant to the Endangered Species Act 
(Act) of 1973, as amended, for a plant and a butterfly, Erigeron 
decumbens var. decumbens (Willamette daisy) and Fender's blue butterfly 
(Icaricia icarioides fenderi), and determines threatened status for a 
plant, Lupinus sulphureus ssp. kincaidii (Kincaid's lupine). These 
species are restricted primarily to native prairie in the Willamette 
Valley of Oregon and are known currently from a few small remnants of a 
formerly widespread distribution. In addition to its Oregon 
occurrences, L. sulphureus ssp. kincaidii is known also from two small 
sites in southern Washington. Commercial and/or residential 
development, agriculture, silvicultural practices, road improvement, 
over-collection, herbicide use, and naturally occurring demographic and 
random environmental events threaten these three taxa. This final rule 
invokes the Federal protection and recovery provisions of the Act, as 
applicable for these plant and butterfly species.

EFFECTIVE DATES:  February 24, 2000.

ADDRESSES:  You may inspect the complete file for this rule, by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Oregon State Office, 2600 SE 98th Ave, Suite 100, Portland, 
Oregon 97266.

Botanist; or Diana Hwang, Fish and Wildlife Biologist, U.S. Fish and 
Wildlife Service (see ADDRESSES section or telephone 503-231-6179, 
Facsimile 503-231-6195).



    Fender's blue butterfly (Icaricia icarioides fenderi), Lupinus 
sulphureus ssp. kincaidii (Kincaid's lupine), and Erigeron decumbens 
var. decumbens (Willamette daisy) are restricted primarily to the 
Willamette Valley of Oregon. The valley is a 209-kilometer (km) (130 
miles (mi)) long and 32-64-km (20-40-mi) wide alluvial floodplain with 
an overall northward gradient (Orr et al. 1992). The valley is narrow 
and flat at its southern end, widening and becoming hilly near its 
northern end at the confluence of the Willamette and Columbia Rivers. 
We know of four sites containing L. sulphureus ssp. kincaidii 
approximately 60 km (38 mi) south of the Willamette Valley and within 
the Umpqua Valley of Douglas County, Oregon. In addition to its Oregon 
occurrences, L. sulphureus ssp. kincaidii is known from two small sites 
in Lewis County, southern Washington, 70 km (40 mi) north of the 
Willamette Valley.
    The alluvial soils of the Willamette Valley and southern Washington 
host a mosaic of grassland, woodland, and forest communities. Fender's 
blue butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron 
decumbens var. decumbens occupy native grassland habitats within the 
Willamette Valley. Based on the limited available evidence, most 
Willamette Valley grasslands are early seral (one stage in a sequential

[[Page 3876]]

progression) habitats, requiring natural or human-induced disturbance 
for their maintenance (Franklin and Dryness 1973). The vast majority of 
Willamette Valley grasslands would likely be forested if left 
undisturbed (Johannessen et al. 1971). Important exceptions to this 
successional pattern are grass balds on valley hillsides that may be 
climax grasslands due to the presence of deep, fine-textured, self-
mulching soils or xeric (very dry) lithosoils (Franklin and Dryness 
    Two native prairie types occur in the Willamette Valley, wet 
prairie and upland prairie. Fender's blue butterfly and Lupinus 
sulphureus ssp. kincaidii are typically found in native upland prairie 
with the dominant species being Festuca rubra (red fescue) and/or 
Festuca idahoensis (Idaho fescue) and Calochortus tolmiei (Tolmie's 
mariposa), Silene hookeri (Hooker's catchfly), Fragaria virginiana 
(broadpetal strawberry), Sidalcea virgata (rose check-mallow), and 
Lomatium spp. (common lomatium) serving as herbaceous indicator species 
(Hammond and Wilson 1993). These dry, fescue prairies make up the 
majority of habitat for Fender's blue butterfly and L. sulphureus ssp. 
kincaidii. Although Fender's blue butterfly and L. sulphureus ssp. 
kincaidii are occasionally found on steep, south-facing slopes and 
barren rocky cliffs, neither of these species are capable of occupying 
the most xeric oatgrass communities on these south-facing slopes.
    The primary habitat for Erigeron decumbens var. decumbens is native 
wetland prairie. This habitat is characterized by the seasonally wet 
Deschampsia caespitosa (tufted hairgrass) community that occurs in low, 
flat regions of the Willamette Valley where flooding creates anaerobic 
and strongly reducing soil conditions. This wet prairie community 
includes Juncus spp. (rush) and Danthonia californica (California 
oatgrass) as co-dominant native species, as well as the introduced 
species Festuca arundinaceae (tall fescue), Bromus japonicus (Japanese 
brome) and Anthoxanthum odoratum (sweet vernal grass) (USFWS 1993). 
Another endangered species, Lomatium bradshawii (Bradshaw's lomatium) 
also grows in wet prairie habitat. Atypically, two populations of E. 
decumbens var. decumbens occur on top of a dry, stony butte in an 
upland prairie.
    The impact of humans on the botanical communities of the Willamette 
Valley dates back several centuries to the Kalapooya Indians, who 
cleared and burned lands used for hunting and food gathering. Early 
accounts by David Douglas in 1826 indicate extensive burning of the 
valley floor, from its northern end at the falls of the Willamette 
River to its southern extremities near Eugene. Burned areas were 
documented by Douglas as being so complete as to limit the forage 
available for his horse and to reduce game availability (Douglas 1972). 
Accounts by other early explorers support Douglas' observations and 
suggest a pattern of annual burning by the Kalapooya resulted in the 
maintenance of extensive wet and dry prairie grasslands (Johannessen et 
al. 1971). Although much of the woody vegetation was prevented from 
becoming established on the grasslands by this treatment, the random 
survival of young fire-resistant species such as Quercus garryana 
(Oregon white oak) accounted for the widely spaced trees on the margins 
of the valley (Habeck 1961). After 1848, burning decreased sharply 
through the efforts of settlers to suppress large-scale fires. 
Consequently, the open, park-like nature of the valley floor was lost, 
replaced by agricultural fields, dense oak and fir forests, and scrub 
lands following logging.
    The Willamette basin covers approximately 2,600,000 hectares (ha) 
(6,400,000 acres (ac)), which Lang (1885) estimated to consist of one-
sixth prairie and five-sixths forest. We can analyze the extent of the 
prairie component through historical information from land survey 
records. Natural grasslands described by Federal land surveyors in the 
1850s were broken down into three distinct types--oak savannah, upland 
prairie, and wet prairie (Habeck 1961). Of the estimated 409,000 ha 
(1,010,000 ac) of historic native grasslands extant prior to 1850, 
approximately 277,000 ha (685,000 ac) appears to have consisted of 
upland prairie and 132,000 ha (325,000 ac) of wet prairie (E. Alverson, 
The Nature Conservancy, Eugene, pers. comm., 1994).
    This extensive resource was rapidly depleted through the conversion 
of native prairie to agricultural use during European settlement. 
Within 30 years of passage of the Donation Land Act of 1850, European-
American settlers, who quickly subdivided their original land grants to 
accommodate the rapid increase in population, occupied most prairie 
lands (Lang 1885). Settlers first plowed the level, open tracts of 
prairie (Lang 1885) and only boggy, flood-prone areas prevented 
complete conversion of the native grassland community to cropped 
monocultures. After 1936, the U.S. Army Corps of Engineers (Corps) 
overcame limitations on development that had been imposed by seasonal 
flooding and a high water table by initiating water projects to provide 
flood control and security for expanded agricultural activity.
    Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, and 
Erigeron decumbens var. decumbens likely once occurred over a large 
distribution throughout the historic native prairie. Native prairie 
vegetation in the Willamette Valley was decimated by the rapid 
expansion of agriculture during the 140-year period from the 1850s to 
the present. Humans also began suppressing the fire disturbance regime 
on native prairie habitat. Fire suppression allowed shrub and tree 
species to overtake grasslands, while agricultural practices hastened 
the decline of native prairie species through habitat loss and 
increased grazing (Johannessen et al. 1971; Franklin and Dyrness 1973). 
Fence rows and intervening strips of land along agricultural fields and 
roadsides served as the only refugia from these forces of change.
    Although large prairie expanses dominated by native species had 
been lost by the early 1900's, many remnant grasslands with a large 
native species component have been recently identified. These remnants, 
often dominated by nonnative species, also support the only remaining 
occurrences of native prairie species in the Willamette Valley. Current 
estimates of the remaining native upland prairie in the Willamette 
Valley are less than 400 ha (988 ac) (Alverson, pers. comm. 1994). This 
estimate represents only one-tenth of one percent of the original 
upland prairie once available to Fender's blue butterfly and Lupinus 
sulphureus ssp. kincaidii. Fender's blue butterfly and/or L. sulphureus 
ssp. kincaidii and/or Erigeron decumbens var. decumbens currently 
occupy slightly more than one-half of this upland prairie habitat (62 
sites, 210 ha (112.8 ac)). Within the remnant prairie habitat, E. 
decumbens var. decumbens occupies 28 sites across 116 ha (286 ac), L. 
sulphureus ssp. kincaidii occupies 54 sites across 158 ha (370 ac), 
while Fender's blue butterfly occupies 32 sites across 165 ha (408 ac). 
Similar losses have occurred for wet prairie habitats, but estimates of 
current acreage are not available.

Fender's Blue Butterfly

    Fender's blue butterfly is one of about a dozen subspecies of 
Boisduval's blue butterfly (Icaricia icariodes). Icaricia icarioides is 
found in western North America; subspecies fenderi is restricted to the 
Willamette Valley (Dornfeld 1980;

[[Page 3877]]

R. H. T. Mattoni, University of California, pers. comm. to C. Nagano 
1997; J. Emmel, Hemet, California, pers. comm. to C. Nagano 1997). 
Fender's blue butterfly was described by Ralph W. Macey (1931) as 
Plebejus maricopa fenderi based on specimens he had collected in 
Yamhill County, Oregon. The species maricopa is currently considered to 
be a synonym of the species icarioides (Miller and Brown 1981). The 
species icaricia has been determined to be a member of the genus 
Icaricia, rather than the genus Plebejus (Miller and Brown 1981; R. H. 
T. Mattoni, pers. comm. to C. Nagano 1997). Some researchers considered 
subspecies fenderi to be a synonym of the pardalis blue butterfly 
(Icaricia icarioides pardalis), an inhabitant of the central California 
Coast Range near San Francisco (Downey 1975; Miller and Brown 1981). We 
consider Fender's blue butterfly as a distinct taxon based on adult 
characters and geographic distribution (Dornfeld 1980; Hammond and 
Wilson 1993; R. H. T. Mattoni and J. Emmel, pers. comm. to C. Nagano 
    Fender's blue butterfly is small with a wingspan of approximately 
2.5 centimeters (cm) (1 inch (in)). The upper wings of the males are 
brilliant blue in color, and the borders and basal areas are black. The 
upper wings of the females are completely brown colored. The undersides 
of the wings of both sexes are creamish tan, with black spots 
surrounded with a fine white border or halo. The dark spots on the 
underwings of male Fender's blue butterflies are small. In contrast, 
the dark spots on the underwings of the pembina blue butterfly 
(Icaricia icariodes pembina) are surrounded with wide white haloes, and 
the underside of the hindwings of Boisduval's blue butterfly (Icaricia 
icariodes) is very pale whitish gray with broad haloes around the black 
    We do not know the precise historic distribution of Fender's blue 
butterfly due to the limited information collected on this subspecies 
prior to its description in 1931 (Macy 1931). Although Ralph W. Macy 
collected the type specimens for this butterfly in 1929, only a limited 
number of collections were made between the time of the subspecies' 
discovery and Macy's last observation on May 23, 1937, in Benton 
County, Oregon (Hammond and Wilson 1992a). A lack of information on the 
identity of the butterfly's host plant caused researchers to focus 
their survey efforts on common lupine species known to occur in the 
vicinity of Macy's collections. As a result, no Fender's blue 
butterflies were observed during 20 years of widespread investigation. 
Finally, Dr. Paul Hammond rediscovered Fender's blue butterfly in 1989 
at McDonald Forest, Benton County, Oregon, on an uncommon species of 
lupine, Lupinus sulphureus ssp. kincaidii. Recent surveys have 
indicated that the insect is confined to the Willamette Valley and 
currently occupies 32 sites in Yamhill, Polk, Benton, and Lane Counties 
(Hammond and Wilson 1993; Schultz 1996). One population at Willow Creek 
is found in wet, Deschampsia-type prairie, while the remaining sites 
are found on drier upland prairies characterized by Festuca spp. 
Fender's blue butterflies occupy sites located almost exclusively on 
the western side of the valley, within 33 km (21 mi) of the Willamette 
    Although researchers have made only limited observations of the 
early life stages of Fender's blue butterfly, the life cycle of the 
species likely is similar to other subspecies of Icaricia icarioides 
(R. H. T. Mattoni, pers. comm. to C. Nagano 1997; G. Pratt, Riverside, 
California, pers. comm. to C. Nagano 1997; Hammond and Wilson 1993). 
Adult butterflies lay their eggs on perennial Lupinus sp. (Ballmer and 
Pratt 1988), the food plant of the caterpillar during May and June. 
Newly hatched larvae feed for a short time, reaching their second 
instar in the early summer, at which point they enter an extended 
diapause (maintaining a state of suspended activity). Diapausing larvae 
remain in the leaf litter at or near the base of the host plant through 
the fall and winter and may become active again in March or April of 
the following year. Some larvae may be able to extend diapause for more 
than one season depending upon the individual and environmental 
conditions (R. H. T. Mattoni pers. comm. to C. Nagano 1997). Once 
diapause is broken, the larvae feed and grow through three to four 
additional instars, enter their pupal stage, and then emerge as adult 
butterflies in April and May. Behavioral observations of Fender's blue 
butterfly indicate the larvae are alert to potential predators, with 
individuals dropping from their feeding position on lupine leaves to 
the base of the plant at the slightest sign of disturbance (C. Schultz, 
University of Washington, pers. comm. 1994). A Fender's blue butterfly 
may complete its life cycle in 1 year.
    The larvae of many species of lycaenid butterflies, including 
Icaricia icarioides, possess specialized glands that secrete a sweet 
solution sought by some ant species who may actively ``tend'' and 
protect them from predators and parasites (Ballmer and Pratt 1988; G. 
Pratt, pers. comm. to C. Nagano 1997). Although ants tend other 
subspecies of Boisduval's blue butterfly during their larval stage 
(Downey 1962, 1975; Thomas Reid Associates 1982; R. H. T. Mattoni and 
G. Pratt, pers. comm. to C. Nagano 1997), limited observations of 
Fender's blue butterfly larvae in the field have failed to document 
such a mutualistic association (Hammond 1994). However, this situation 
may be due to the nocturnal activity patterns of the Icaricia 
icarioides larvae, because it appears that this species has an obligate 
relationship with ants (G. Pratt, pers. comm. to C. Nagano 1997). 
Schultz (pers. comm. 1994) has observed nonnative Argentine ants 
(Iridomyrmex humilis) tending Fender's blue butterfly larvae during 
indoor rearing trials.
    Of the 32 sites where Fender's blue butterfly occurs, Lupinus 
sulphureus ssp. kincaidii co-occurs as a larval host plant at 27 of 
these. The near absence of the Fender's blue butterfly at sites without 
Lupinus sulphureus ssp. kincaidii suggests that L. laxiflorus (spurred 
lupine) and L. albicaulis (sickle keeled lupine) may be secondary food 
plants used by the insect (Hammond and Wilson 1993). Occurrences where 
Fender's blue butterfly apparently does not rely on L. sulphureus ssp. 
kincaidii as its primary host plant have been noted at Coburg Ridge 
where L. laxiflorus is the sole host plant across greater than 95 
percent of the site (Schultz in litt. 1998), two other sites where L. 
laxiflorus is the primary food plant (Schultz 1996), and an additional 
two sites where L. laxiflorus co-occurs with L. sulphureus ssp. 
kincaidii (Hammond and Wilson 1993). Fender's blue butterfly also 
occupies six sites where L. albicaulis is the primary food plant; 
however, the butterfly is declining at two of these sites.
    At this time we have no information to suggest that Lupinus 
albicaulis and/or L. laxiflorus are inferior host plants either 
physically or biochemically, or that the oviposition behavior of the 
Fender's blue butterfly prefers L. sulphureus ssp. kincaidii. It is 
possible that the co-occurrence of these two species is due to 
environmental factors favoring L. sulphureus ssp. kincaidii that also 
favor Fender's blue butterfly. However, this phenomenon of food plant 
specificity has been documented in other species of butterflies and 
moths (Longcore et al. 1997). We may say, however, that at the majority 
of sites where Fender's blue butterfly occurs, L. sulphureus ssp. 
kincaidii serves as the sole source for larval food and oviposition 
sites and native wildflowers for adult nectar. Research in 
collaboration with Katrina Dlugosh (Schultz in litt. 1998) indicates 
that native wildflowers in the Willamette

[[Page 3878]]

Valley prairies provide more nectar than nonnative flowers and that 
Fender's blue butterfly population density is positively correlated 
with the density of native wildflowers. In Lane County, key native 
flowers include Allium amplectans, Calachortus tolmiei, Camassia 
quamash, Eriophyllum lanatum, and Sidalcea virgata (Schultz in litt. 

Lupinus Sulphureus ssp. Kincaidii

    In 1924, C.P. Smith first described Lupinus sulphureus ssp. 
kincaidii as L. oreganus var. kincaidii from a collection made in 
Corvallis, Oregon (Kuykendall and Kaye 1993a). Phillips (1955) 
transferred the taxon to a subspecies status as L. sulphureus ssp. 
kincaidii. Hitchcock et al. (1961) retained the position noted by 
Phillips (1955), but preferred the combination as a varietal rank, L. 
sulphureus var. kincaidii.
    Lupinus sulphureus ssp. kincaidii occupies 48 sites throughout the 
Willamette Valley. Four sites are in the Umpqua Valley of Douglas 
County, Oregon, and two sites are in southern Washington. The 
latitudinal range of the 54 sites of L. sulphureus ssp. kincaidii spans 
from Lewis County, Washington, south to Douglas County, Oregon, and a 
distance of 400 km (320 mi). This distribution implies a close 
association with native upland prairie sites that are characterized by 
heavier soils with mesic to slightly xeric soil moisture levels. At the 
southern limit of its range, the subspecies occurs on well-developed 
soils adjacent to serpentine outcrops where the plant is often found 
under scattered oaks (Kuykendall and Kaye 1993a).
    Lupinus sulphureus ssp. kincaidii is easily distinguished from 
other sympatric members of the genus Lupinus with its low-growing habit 
and unbranched inflorescence. Its aromatic flowers have a slightly 
reflexed, distinctly ruffled banner, and are yellowish-cream colored, 
often showing shades of blue on the keel. The upper calyx lip is short, 
yet not obscured by the reflexed banner when viewed from above. The 
leaflets tend to a deep green with an upper surface that is often 
glabrous (smooth). The plants are 4 to 8 decimeters (dm) (16 to 32 in) 
tall, with single to multiple unbranched flowering stems and basal 
leaves that remain after flowering (Kuykendall and Kaye 1993a).
    Lupinus sulphureus ssp. kincaidii is a long-lived perennial 
species, with a maximum reported age of 25 years (M. Wilson, Oregon 
State University, in litt., 1993). Individual plants are capable of 
spreading by rhizomes (horizontal stems), producing clumps of plants 
exceeding 20 meters (m) (66 feet (ft)) in diameter (P. Hammond, 
independent consultant, pers. comm. 1994). The long rhizomes do not 
produce adventitious roots (secondary roots growing from stem tissue), 
apparently do not separate from the parent clump, and the clumps may be 
short-lived, regularly dying back to the crown (Kuykendall and Kaye 
1993a). L. sulphureus ssp. kincaidii is pollinated by solitary bees and 
flies (P. Hammond, pers. comm. 1994). Seed set and seed production are 
low, with few (but variable) numbers of flowers producing fruit from 
year to year, and each fruit containing an average of 0.3-1.8 seeds 
(Liston et al. 1994). Seeds are dispersed from fruits that open 
explosively upon drying.

Erigeron Decumbens var. Decumbens

    Thomas Nuttall (1840) based his description of Erigeron decumbens 
on a specimen he collected in the summer of 1835. The autonym E. 
decumbens var. decumbens was automatically established by Cronquist 
(1947) when he described E. decumbens var. robustior. Recent revisions 
of the Erigeron genus (Strother and Ferlatte 1988, Nesom 1989) treat 
the plant as a variety, E. decumbens var. decumbens. 
    According to Strother and Ferlatte (1988), Erigeron decumbens var. 
decumbens is geographically limited to the Willamette Valley and the 
morphologically similar E. decumbens var. robustior is restricted to 
Humboldt and western Trinity Counties, California. Intermediate 
specimens of Erigeron from southern Oregon are considered by Strother 
and Ferlatte (1988) to be robust specimens of E. eatonii var. 
    Clark et al. (1993) reviewed herbarium specimens and found a 
historical distribution of Erigeron decumbens var. decumbens throughout 
the Willamette Valley. He found frequent collections from the period 
between 1881 and 1934, yet no collections or observations from 1934 to 
1980 (Clark et al. 1993). The species was rediscovered in 1980 in Lane 
County, Oregon, and has since been identified at 28 sites in Polk, 
Marion, Linn, Benton, and Lane Counties, Oregon. With only 28 
occurrences and 116 ha (286 ac) of occupied habitat, E. decumbens var. 
decumbens has the most restricted range of the species being listed 
    Erigeron decumbens var. decumbens is a perennial herb, 15 to 60 mm 
(0.6 to 2.4 in) tall, with erect to sometimes prostrate stems at the 
base. The basal leaves often wither prior to flowering and are mostly 
linear, 5 to 12 cm (2 to 5 in) long and 3 to 4 mm (0.1 to 0.2 in) wide. 
Flowering stems produce two to five heads, each of which is daisy-like, 
with pinkish to pale blue ray flowers and yellow disk flowers. Ray 
flowers often fade to white with age (Siddall and Chambers 1978). The 
morphologically similar E. eatonii occurs east of the Cascade 
Mountains, while the sympatric species Aster hallii flowers later in 
the summer. In its vegetative state, Erigeron decumbens var. decumbens 
can be confused with A. hallii, but close examination reveals the 
reddish stems of A. hallii in contrast to the green stems of E. 
decumbens var. decumbens (Clark et al. 1993).
    As with many species in the family Asteraceae, Erigeron decumbens 
var. decumbens produces large quantities of wind-dispersed seed. 
Flowering typically occurs in June and July with pollination carried 
out by syphrid flies and solitary bees. Seeds are released in July and 
August. Although the seeds are wind-dispersed, the short stature of 
this species likely prevents the long-distance travel of many of these 
seeds. Erigeron decumbens var. decumbens is capable of vegetative 
spreading and is commonly found in large clumps scattered throughout a 
site (Clark et al. 1993).

Previous Federal Action

    Erigeron decumbens var. decumbens was initially included as a 
category 2 candidate in a Notice of Review (NOR) published by us on 
December 15, 1980 (45 FR 82506). At that time, category 2 candidates 
were those species for which we had information indicating that listing 
may be appropriate, but for which additional information was needed to 
support the preparation of a proposed rule. On November 28, 1983, we 
published an NOR upgrading this species to category 1 status (48 FR 
53649). At that time, category 1 taxa were those for which we had 
sufficient data to support preparation of listing proposals. 
Subsequently, E. decumbens var. decumbens was reassigned category 2 
candidacy in an NOR published on September 27, 1985 (50 FR 39527). On 
February 21, 1990, we published an NOR (55 FR 6202) that reinstated E. 
decumbens var. decumbens as a category 1 candidate and also designated 
Lupinus sulphureus ssp. kincaidii as a category 2 candidate (55 FR 
6121). We published an NOR on February 28, 1996 (61 FR 7596), which 
updated the candidate species list and discontinued the use of 
categories. Erigeron decumbens var. decumbens was retained as a 
candidate species (a candidate was defined as any taxa meeting the 
definition of former category 1 species). Lupinus sulphureus  ssp. 
kincaidii and other former category 2 candidates were not retained as

[[Page 3879]]

candidates. Since that NOR was published, we have reevaluated the 
available information and determined that listing is warranted for L. 
sulphureus ssp. kincaidii.
    Fender's blue butterfly was initially assigned to category 3A taxa 
in the NOR published on January 6, 1989 (54 FR 572). The best available 
information at that time indicated that this butterfly was likely 
extinct because the subspecies had last been observed in 1937. Category 
3A taxa were taxa for which we had pervasive evidence of extinction, 
however, if rediscovered, such taxa might be reconsidered for listing. 
The rediscovery of this butterfly in May 1989 prompted us to change the 
status of the subspecies to a category 2 candidate in the NOR published 
on November 21, 1991 (56 FR 58830). In the NOR published on February 
28, 1996 (61 FR 7596), we retained Fender's blue butterfly as a 
candidate for listing. On January 27, 1998, we published a proposed 
rule (63 FR 3863) to list the Fender's blue butterfly (Icaricia 
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's 
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) under 
the Act.
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well-being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of critical habitat 
determinations (prudency and determinability decisions) and proposed or 
final designations of critical habitat will no longer be subject to 
prioritization under the Listing Priority Guidance. This final rule is 
a Priority 2 action and is being completed in accordance with the 
current Listing Priority Guidance.

Summary of Comments and Recommendations

    In the January 27, 1998, proposed rule (63 FR 3863) and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final listing decision. Appropriate State agencies, county governments, 
city governments, Federal agencies, scientific organizations, private 
landowners, industrial landowners and other interested parties were 
contacted and requested to comment. Newspaper notices inviting public 
comments were published in the Oregonian on February 25-27, 1998, and 
the Eugene Register Guard on February 26-27, 1998. Following the 
publication of the proposed rule, we received 29 written comments 
during the comment period.
    Five commenters opposed, and 24 favored the listing of Erigeron 
decumbens var. decumbens and Icaricia icarioides fenderi as endangered 
and Lupinus sulphureus ssp. kincaidii as threatened. Several commenters 
provided information on the status of, and threats to, various 
populations of Erigeron decumbens var. decumbens, Icaricia icarioides 
fenderi, and Lupinus sulphureus ssp. kincaidii that updated the 
information presented in the proposed rule. We incorporated that 
information into the Background and Summary of Factors Affecting the 
Species sections of this final rule, and we took it into consideration 
in the listing determination. We grouped comments questioning or 
opposing the proposed rule into issues that are discussed below.
    Issue 1: One commenter stated that the information presented in the 
proposed rule was not accurate for his area and raised questions 
regarding the accuracy of data in other areas.
    Our Response: We reviewed all the data concerning information 
regarding the area in question. On March 10, 1998, we sent three 
detailed maps depicting the location of Lupinus sulphureus ssp. 
kincaidii at the site and information we had on this locality to the 
commenter. These maps showed the historical locations of butterflies 
and L. sulphureus ssp. kincaidii in the area in question.
    In our letter to the landowner, we sought clarification on the 
status of the population that is/was apparently on the commenter's 
land. Upon receipt of the letter, the landowner called us and informed 
us that he did not know the status of the population in question but 
could check later that summer.
    On November 24, 1998, we contacted the landowner. The landowner 
informed us that a fence in the area where Lupinus sulphureus ssp. 
kincaidii occurred had been moved approximately 15 feet north. The area 
between the old fence and the new fence where L. sulphureus ssp. 
kincaidii had occurred was plowed. However, he thought that a couple L. 
sulphureus ssp. kincaidii plants occurred along the new fenceline but 
that the tall grass would probably eliminate them very shortly.
    Issue 2: Two commenters opposed listing the Fender's blue butterfly 
because the butterfly has 360 acres to live on and all food they need 
if Lupinus sulphureus ssp. kincaidii is protected by listing.
    Our Response: About 30 percent of the Fender's blue butterfly 
occurs at seven sites across 52 ha (128 ac) of habitat where Lupinus 
sulphureus ssp. kincaidii is not present and thus a substantial portion 
of the butterflies would not be protected by listing the plant. 
Although one purpose of the Act is to conserve ecosystems upon which 
endangered and threatened species depend, its listing provisions apply 
only to species rather than ecosystems (16 U.S.C. 1533).
    Issue 3: Two commenters opposed the listing of the three species 
because it was not stated how much of the 2,600,000 ha (6,400,000 ac) 
of the Willamette Basin would be affected by this listing action. 
Commenters expressed concern that farm acreage would be taken out of 
production through this listing action and farm profits would be lost.
    Our Response: The listing of the two plants and the butterfly will 
impact only those habitat hectares (acres) currently occupied by the 
species. Within this available habitat, Erigeron decumbens var. 
decumbens occupies 28 sites across 116 ha (286 ac), L. sulphureus ssp. 
kincaidii occupies 54 sites across 158 ha (370 ac), while Fender's blue 
butterfly occupies 32 sites across 165 ha (408 ac). The Fender's blue 
butterfly and L. sulphureus ssp. kincaidii co-occur at 25 sites across 
113 ha (279 ac), and the E. decumbens var. decumbens co-occurs with 
both the butterfly and L. sulphureus ssp. kincaidii on 1 upland site 
across 49.5 ha (122 ac). Thus, the total area that would be impacted by 
the listing of these three species is 276 ha (684 ac), not 2,600,000 ha 
(6,400,000 ac).
    Recovery planning for the species may include recommendations for 
land acquisition or easements involving private landowners. Some of 
these areas may be unoccupied prairie habitat. These efforts would be 
undertaken only with the voluntary cooperation of the landowner. In the 
majority of cases, private landowners are not prevented from using 
their land in the manner originally intended. Within the Willamette 
Valley wetland prairies, there are 26 sites across 116 ha (286 ac) 
where Erigeron decumbens var. decumbens occurs and that would require 
Federal regulatory agencies,

[[Page 3880]]

primarily the Corps, to ensure that certain actions on these sites, 
including the issuance of wetland permits under section 404 of the 
Clean Water Act, are not likely to jeopardize the continued existence 
of this species. In some cases, the Corps may require that private 
landowners who apply for permits reduce the scope or extent of their 
proposed fill project if the fill would adversely affect E. decumbens 
var. decumbens.
    Landowners will be able to use occupied Fender's blue butterfly 
habitat (165 ha (407 ac)) as long as the use does not involve the take 
of the butterfly. The Act and its implementing regulations set forth a 
series of prohibitions and exceptions that apply to endangered 
wildlife, including prohibition of take (16 U.S.C. 1538). Take includes 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect; or to attempt any of these (16 U.S.C. 1532). Permits may be 
issued to carry out otherwise prohibited activities involving 
endangered wildlife under certain circumstances. If certain 
requirements are met, these permits are available for incidental take 
in connection with otherwise lawful activities.
    Executive Order 12630, Government Actions and Interference with 
Constitutionally Protected Property Rights, require that a Taking 
Implication Assessment (TIA) be conducted ``as a part of the final 
rulemaking to evaluate the risk of and strategies for avoidance of the 
taking of private property.'' However, the Attorney General's 
guidelines state that TIAs used to analyze the potential for Fifth 
Amendment ``taking claims'' are to be prepared after, rather than 
before, an agency makes a restricted discretionary decision. In 
enacting the Act, Congress required the Department to list a species 
based solely upon scientific and commercial data indicating whether or 
not the species is in danger of extinction. We may not withhold a 
listing based upon economic concerns. Therefore, even though a TIA may 
be required, a TIA for a listing action is finalized only after the 
final determination is made regarding whether to list the species.

Peer Review

    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), we solicited the expert opinions of appropriate and 
independent specialists regarding pertinent scientific or commercial 
biological and ecological data for Erigeron decumbens var. decumbens, 
Fenders blue butterfly, and Lupinus sulphureus ssp. kincaidii. We 
solicit such a review to ensure that listing decisions are based upon 
scientifically sound data, assumptions, and analyses, including input 
of appropriate experts and specialists.
    Comments provided by Cathy L. Maxwell, Dr. Robert Michael Pyle, 
Cheryl B. Schultz, and Dr. Mark Wilson, Associate Professor of Botany 
and Plant Pathology at Oregon State University were incorporated into 
the final rule. Cathy L. Maxwell; Dr. Robert Michael Pyle; Cheryl B. 
Schultz; Dr. Mark Wilson; David Brittell, Assistant Director, Wildlife 
Management Program, Washington Department of Fish and Wildlife; and 
Diane S. Doss, Conservation Chair, Washington Native Plant Society, 
supported our position that Erigeron decumbens var. decumbens and 
Fender's blue butterfly were endangered and Lupinus sulphureus ssp. 
kincaidii was threatened throughout their limited range in the 
Willamette Valley of western Oregon and Boistfort Valley, Lewis County, 

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act and regulations (50 CFR 
Part 424) issued to implement the listing provisions of the Act set 
forth the procedures for adding species to the Federal lists. A species 
may be determined to be an endangered or threatened species due to one 
or more of the five factors described in section 4(a)(1). These factors 
and their application to Fender's blue butterfly (Icaricia icarioides 
fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and 
Erigeron decumbens var. decumbens (Willamette daisy) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Over the last 140 years, humans 
have extensively altered native prairie in the Willamette Valley (see 
Background section of this final rule), which has resulted in a loss of 
greater than 99 percent of the only known habitat area for the Fender's 
blue butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron 
decumbens var. decumbens (E. Alverson, pers. comm. 1994).
    Within the 88 remnants of native prairie occupied by these species 
in the Willamette Valley, the Fender's blue butterfly occurs at 32 
sites (Hammond and Wilson 1993, Schultz 1996), Lupinus sulphureus ssp. 
kincaidii occurs at 54 sites (Kuykendall and Kaye 1993a), and Erigeron 
decumbens var. decumbens occurs at 28 sites (Clark et al. 1993). 
Fender's blue butterfly and L. sulphureus ssp. kincaidii are found in 
close association, occurring together at a total of 26 sites. Erigeron 
decumbens var. decumbens co-occurs with L. sulphureus ssp. kincaidii at 
only one site and with Fender's blue butterfly at only this same site, 
Baskett Butte. Typically these sites are small, with extirpation likely 
in the near future. Activities that destroy, modify, or curtail the 
habitat of L. sulphureus ssp. kincaidii, E. decumbens var. decumbens, 
and Fender's blue butterfly are discussed below.
    The immediacy of the threat of habitat loss in the last remaining 
88 remnants of native prairie occupied by these species has been well 
documented. Habitat at 80 percent of the sites (68 sites) is rapidly 
disappearing due to agriculture practices, development activities, 
forestry practices, grazing, roadside maintenance, and commercial 
Christmas tree farming.

Agricultural Activities

    Agricultural activities likely impact at least 12 prairie remnants. 
Five of these remnants are wetland prairies occupied by Erigeron 
decumbens var. decumbens, seven are upland prairies of which six are 
occupied by Lupinus sulphureus ssp. kincaidii, and two are occupied by 
Fender's blue butterfly. In one case, a wheat field boundary adjustment 
near Buell in Polk County (Mill Creek Road South) is likely to lead to 
loss of a population of Fender's blue butterfly and L. sulphureus ssp. 
kincaidii (Hammond 1994). By 1996, this boundary adjustment was 
implemented with a diminished population of L. sulphureus ssp. 
kincaidii and Fender's blue butterfly still present. No Fender's blue 
butterflies, however, were observed at this site in 1997 (Hammond, 
pers. comm. 1997). The majority of the habitat supporting populations 
of each of these species are habitat remnants, such as small habitat 
patches remaining after other habitat loss has occurred. Small habitat 
patches that occur along State and county roadsides face greater 
threats from agriculture than those occurring along non-roadside areas. 
In past decades, many roadside habitats were less disturbed, but today 
roadside stretches of habitats adjoining grass seed farms are now being 
disked and/or sprayed with herbicides to kill all roadside vegetation 
(A. Robinson, U.S. Fish and Wildlife Service, pers. obs. 1997). Grass 
seed farms commonly use herbicide spraying to create bare soil to 
prevent the spread of weeds from roadsides into the grass seed fields. 
Many of these roadside areas are inhabited by populations of E. 
decumbens var. decumbens.

[[Page 3881]]


    Urban development has caused additional loss of prairie habitat 
(Clark et al. 1993; Hammond and Wilson 1992a, 1992b 1992c, 1994, 1996; 
Kuykendall and Kaye 1993a; Liston et al. 1994; Schultz, 1996; Sidall 
and Chambers 1978). Destruction of upland prairie habitat occupied by 
Fender's blue butterfly and Lupinus sulphureus ssp. kincaidii at 
several sites since 1992 has caused the butterflies at these sites to 
either completely die out or to be reduced to low, non-viable numbers. 
Future losses for 47 prairie remnants are projected as a result of 
urban development (Hammond 1994, 1996), which is the largest single 
factor currently threatening the survival of these prairie species. 
Nineteen of these remnants are wetland prairies supporting Erigeron 
decumbens var. decumbens, and the other 28 are upland prairie remnants 
supporting populations of Fender's blue butterfly and/or L. sulphureus 
ssp. kincaidii.
    Examples of this type of threat are the Dallas-Oakdale Avenue sites 
1 and 2 covering about 2 ha (5 ac) occupied by Fender's blue butterfly 
and Lupinus sulphureus ssp. kincaidii near the town of Dallas in Polk 
County. These sites are expected to be lost due to planned housing 
development (Hammond 1996). The loss of native prairie habitat is 
further exemplified by the destruction of a site supporting 6,000 
plants in Lane County, formerly the largest occurrence of Erigeron 
decumbens var. decumbens, plowed under in 1986 prior to the development 
of an industrial and residential site (Kagan and Yamamoto 1987). 
Construction of a single driveway resulted in the loss of one site 
occupied by Fender's blue butterfly and L. sulphureus ssp. kincaidii in 
Kings Valley (Hammond 1994). Future highway construction potentially 
threatens the Nielson Road site of E. decumbens var. decumbens located 
in a highway expansion corridor in Lane County (USFWS 1994). The 
populations of Fender's blue butterfly and L. sulphureus ssp. kincaidii 
at Wren in Benton County occur at 2 sites and cover about 9 ha (22 ac). 
Only a portion of the populations (7.4 ha) (18 ac) occur on land owned 
by The Nature Conservancy (TNC). Heavy clearing and mowing activities 
on private lands adjacent to the TNC property has caused the decline of 
the lupine and is reducing the butterfly population at the Wren site to 
a non-viable state (Hammond and Wilson 1993). At the Willow Creek Main 
site, owned by TNC, Fender's blue butterfly and L. sulphureus ssp. 
kincaidii occur together. This site is actively managed for the benefit 
of the species, and the lands are considered relatively secure from 
development threats. Although this TNC site is considered a secure 
habitat area, extensive damage to habitat occupied by Fender's blue 
butterfly and L. sulphureus ssp. kincaidii occurred in 1996 during 
high-voltage power-line repair work conducted on a utility corridor 
easement. Two other moderately sized habitat patches occupied by E. 
decumbens var. decumbens face habitat loss from trash dumping (at the 
Grande Ronde site) and urbanization (at the west Eugene site) (Clark et 
al. 1993).

Forestry Practices

    Silvicultural activities for timber production have threatened 6 
percent (5 sites) of the remaining 88 prairie occurrences. The Coburg 
Ridge area-2 site in Lane County is the largest site occupied by 
Fender's blue butterfly and is among the best examples of remnant 
upland native prairie in the Willamette Valley (Hammond 1994). Native 
species were severely damaged, however, by the application of grass-
specific herbicide that eliminated grasses and severely damaged other 
herbaceous species prior to tree planting activities. Approximately 4 
ha (10 ac) were sprayed with herbicide. The saddle section of Coburg 
Ridge (area-2) that received aerial application of the herbicide is 
used by Fender's blue butterfly due to the presence of Lupinus 
laxiflorus, an alternate host plant, but this site does not contain L. 
sulphureus ssp. kincaidii (Schultz 1996). Loss of such alternate host 
plant sites further limits the habitat that is available to support 
Fender's blue butterfly. Additional tree-planting efforts by an 
adjacent Coburg Ridge landowner threaten to alter a different portion 
of the grassland in area-2, which has displayed the highest levels of 
butterfly activity on Coburg Ridge in previous years (Schultz 1996). 
This site received spot herbicide application during the planting 
efforts, rather than the aerial broadcast method of the first case; 
therefore, the immediate effects to the habitat were not as severe. 
However, tree saplings were planted and as the trees grow they will 
eventually shade out the native prairie species, resulting in the loss 
of butterfly habitat.
    Herbicide spraying associated with reforestation, after logging, 
has also altered habitat and caused a decline of a Lupinus sulphureus 
ssp. kincaidii population on Bureau of Land Management (BLM) 
properties. At the BLM Letitia Creek Site, L. sulphureus ssp. kincaidii 
is located within a timber sale unit proposed for future harvest at the 
beginning of year 2020. The Callahan Ridge BLM site is located on the 
boundary between timber available for harvest and a non-commercial 
rocky area that has been withdrawn from the timber base. No timber 
harvest has been scheduled for the timber portion of this site for the 
next 30 years. The Letitia Creek area, where plants of L. sulphureus 
ssp. kincaidii are located, was impacted when the jeep trail running 
along the ridge was renovated and the surrounding forest selectively 
logged. Renovation of the jeep road destroyed most of the plants along 
the road and only a small portion of the original population remains. 
The other large occurrence of the butterfly and L. sulphureus ssp. 
kincaidii is in Benton County on McDonald State Forest and adjacent 
private lands that could be similarly affected by surrounding 
silvicultural operations.


    Grazing currently impacts 13 of the occupied habitat patches, with 
5 of these being wetlands occupied by Erigeron decumbens var. 
decumbens. Most of the habitat at the Oak Ridge south site, in Yamhill 
County, occupied by Fender's blue butterfly and Lupinus sulphureus ssp. 
kincaidii, has been lost due to heavy grazing (Hammond 1996). Another 
site of L. sulphureus ssp. kincaidii, covering about 4.6 ha (11 ac) at 
Crabtree Hill in Lane County, is being damaged by extensive livestock 
grazing. The Crabtree Hill population of 6,000 plants is the largest 
known L. sulphureus ssp. kincaidii population. At Boistfort Cemetery, 
cattle grazing remains as a threat to the L. sulphureus ssp. kincaidii 
population on the cemetery hill. Cattle at the Boistfort site had full 
access to the cemetery hill in the mid-1980s when cattle trails criss-
crossed the hill and few lupines were observed (Maxwell in litt. 1998). 
In 1986, Maxwell estimated the plants on the cemetery hill to be 50 to 
60 individuals (Maxwell in litt. 1998). In 1991, after cattle were 
removed from the site, Maxwell inventoried the cemetery hill and 
estimated 1,685 individuals of L. sulphureus ssp. kincaidii, with 58 
plants located on the west-facing side of the hill where there was no 
evidence of cattle grazing, but where horses occurred (Maxwell in litt. 
1998). Subsequent inventories at the cemetery site recorded similar 
numbers of individuals as the 1991 data, with minimal increases and 
decreases that could be accounted for by sampling error and 
environmental fluctuation. These data suggest that the removal of 
cattle from the hillside has helped to

[[Page 3882]]

increase the size of the L. sulphureus ssp. kincaidii population 
(Maxwell in litt. 1998). Lupinus sulphureus ssp. kincaidii on the west-
facing part of the hill where horses continue to occur, however, show 
evidence of trampling, and populations have not experienced a similar 
upward trend (Maxwell in litt. 1998).

Roadside Maintenance

    Another common threat to these species is roadside maintenance 
activities. At least 34 sites occur along roadsides and are impacted by 
maintenance activities. Five of these are wetland areas supporting 
Erigeron decumbens var. decumbens. Twenty-nine are upland sites 
(Lupinus sulphureus ssp. kincaidii occurs at 27 sites and Fender's blue 
butterfly occurs at 11 sites). Populations of Fender's blue butterfly 
and L. sulpheureus ssp. kincaidii were recently lost due to road 
maintenance activities at the Oak Ridge north site. When planned 
developments are completed on the Oak Ridge south site, the butterfly 
and lupine will essentially be extirpated from the Oak Ridge area 
(Hammond 1996). Two sites on Oregon Department of Transportation (ODOT) 
property and one site on land owned by the City of Corvallis receive 
only limited protection and could potentially be impacted by future 
development and highway maintenance activities. Publicly owned roadside 
sites receive varying degrees of protection on a district-by-district 
basis. Although some roadside sites have been marked as no-spray zones 
by the Native Plant Society of Oregon, this protective measure is not 
always effective. The roadside portion of a L. sulphureus ssp. 
kincaidii population in Kings Valley continues to receive herbicide 
application during roadside weed control activities, despite efforts to 
restrict spraying. Other roadside sites receive only sporadic 
protection during herbicide application. Privately managed roadside 
occurrences are also impacted by maintenance activities. Extensive 
mowing at the Wren sites in Benton County and Fir Butte Road roadside 
sites in Lane County have caused declines in Fender's blue butterfly 
and L. sulphureus ssp. kincaidii populations (Hammond 1994).
    With frequent weed control efforts ongoing, as well as highway and 
driveway construction, small roadside occurrences of Fender's blue 
butterfly, Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens 
var. decumbens are unlikely to persist. For example, another sensitive 
species, Delphinium leucophaeum, in Boistfort Valley, Lewis County, 
Washington, has been damaged by roadside herbicide spraying by the 
County. The spraying swath is sometimes 0.9 to 1.2 m (3 to 4 ft.) wide. 
Several D. leucophaeum plants were damaged by spray in 1991 (Maxwell in 
litt. 1998). Botanists met with the roadside management crew in May of 
1991 to point-out and discuss no-spray zones where D. leucophaeum 
occur. Since then, D. leucophaeum plants have been lost twice because 
of landowners spraying the roadsides to control weedy nonnative species 
that invade their pastures and fields (Maxwell in litt. 1998). The L. 
sulphureus ssp. kincaidii population within the Boistfort Valley does 
not occur along the roadsides, but along a path that leads up to a 
pioneer cemetery. Since monitoring began in 1991, a 3-m (1-ft) wide 
strip has been sprayed with herbicides along the path and steps leading 
up to the cemetery. Some of the Lupinus sulphureus ssp. kincaidii 
plants are damaged by the annual spraying (Maxwell in litt. 1998).
    Between 1994 and 1996, Fender's blue butterfly populations 
disappeared from (or were considered no longer viable) at least seven 
small roadside sites (Liberty Road, Monmouth Falls City Road, Fern 
Corner, Grant Creek, and McTimmonds Valley in Polk County, and two 
sites at Wren), and populations at many of the remaining roadside sites 
continue to decline. Between 1990 and 1992, three sites occupied by 
both Fender's blue butterfly and L. sulphureus ssp. kincaidii were lost 
in the McTimmond's Valley to the expansion of Christmas tree farming 
operations (Hammond 1994). Conversion of these three sites destroyed 
approximately 3 ha (7 ac) of habitat along roadside and private land 
that comprised the nucleus of two Fender's blue butterfly populations 
and a substantial number of L. sulphureus ssp. kincaidii plants. The 
two roadside occurrences of the butterfly that remain nearby are no 
longer considered viable due to the loss of the source butterfly 
populations and considerable numbers of L. sulphureus ssp. kincaidii 
plants. We do not know if the two roadside occurrences still exist, but 
if they do, they are not expected to persist for more than a few 
additional years (Hammond 1994).
    In summary, habitat loss from a wide variety of causes (e.g., 
urbanization, agriculture, silvicultural practices, and roadside 
maintenance) is a severe problem faced by Fender's blue butterfly, 
Lupinus sulphureus ssp. kincaidii, and Erigeron decumbens var. 
decumbens at a majority of occupied sites. Land development and 
alteration in the Willamette Valley has been so extensive that almost 
all of the occurrences of the three species on the valley floor have 
essentially been relegated to small patches of habitat. Agricultural 
and urban development activities occurring on the valley floor have not 
affected three hilltop areas (Baskett Slough National Wildlife Refuge, 
Coburg Ridge, and McDonald State Forest) because of their topography. 
Only 20 of the 88 remnant prairie sites that are occupied by 1 or more 
of these species are currently not threatened with habitat destruction. 
However, these 20 sites are threatened by herbivory, competition by 
nonnative weedy species, and/or plant succession (see Factor E of this 
final rule for additional discussion). As habitat loss continues on 
these prairie remnants, populations of all 3 species in these 68 areas 
are likely to be extirpated. At least 14 of 32 sites occupied by 
Fender's blue butterfly, 49 of 54 sites occupied by L. sulphureus ssp. 
kincaidii, and 24 of 28 sites occupied by E. decumbens var. decumbens 
occur on private lands and are expected to be lost in the near future 
unless conservation actions are implemented. The threat of extinction 
for these species is high, given the expected continuing extirpation of 
small populations, the continued habitat loss on moderate and large 
sites, and the continuing degradation of habitat, even on secure sites.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Rare butterflies, such as Fender's blue butterfly 
are highly prized by insect collectors. We know of no studies of the 
impact of such removal of individuals from natural populations of 
Fender's blue butterfly. However, studies of another lycaenid butterfly 
(Duffey 1968) and an endangered nymphalid butterfly (Gall, 1984a and 
1984b) suggest it is likely that Fender's blue butterfly could be 
adversely affected by collection because of its small and isolated 
populations. An international commercial trade of butterfly species 
that are proposed for listing, as well as other imperiled or rare 
butterflies, exists (C. Nagano, J. Mendoza, and C. Schroeder, USFWS, 
pers. obs., 1992-1997), and we know of specimens of Fender's blue 
butterfly that have recently been offered for trade (C. Nagano, pers. 
obs.). Some collectors and dealers closely monitor our listing 
activities, and have stockpiled rare butterflies in anticipation of 
their designation as endangered or threatened species (C.D. Nagano and 
J. Mendoza, pers. obs., 1992). Collecting from small colonies or 
repeated handling and marking (particularly of females and in years of 
low abundance) could seriously

[[Page 3883]]

damage the populations through loss of individuals and genetic 
variability (Gall 1984b; Murphy 1988; Singer and Wedlake 1981). 
Collection of females dispersing from a colony also can reduce the 
probability that new colonies will be founded. Butterfly collectors 
pose a threat because they may be unable to recognize when they are 
depleting butterfly colonies below the thresholds of survival or 
recovery, especially when they lack appropriate biological training or 
the area is visited for a short period of time (Collins and Morris 
    The 1989 rediscovery of this insect generated a great deal of 
publicity and interest, which in turn increased demand by collectors. 
Therefore, remaining populations of Fender's blue butterfly face strong 
pressure from some members of the collecting community. Collectors who 
highly prize rare butterflies often take all wild specimens obtainable 
for use in trade (U.S. Department of Justice, in litt. 1993). Because 
many of the Fender's blue butterfly populations occur along public 
roadsides, the species is easily acquired. The extremely limited 
numbers and distribution of many of the remaining populations makes 
this species vulnerable to extinction due to collection.
    No current evidence exists of horticultural collection or other 
overutilization for scientific purposes for either Erigeron decumbens 
var. decumbens or Lupinus sulphureus ssp. kincaidii. However, the 
potential threat posed by collecting for personal herbarium specimens 
may be significant, particularly where populations are small, due to 
the species' rarity and the relative accessibility of roadside 
    C. Disease or predation. Although most lepidopteran larvae suffer 
significant mortality from parasitoid attack, no instances of 
parasitism (Hammond and Wilson 1993) or disease (R.H.T. Mattoni, pers. 
comm. to C. Nagano 1997) have been documented for Fender's blue 
butterfly. Predation of adult Fender's blue butterflies by crab spiders 
has been observed on at least two occasions (Schultz in litt. 1998). 
The white and/or yellow crab spiders hide in the flowers of Lupinus 
sulphureus ssp. kincaidii, and in a variety of species that the 
Fender's blue butterfly uses for nectar, such as Allium amplectans 
(Schultz in litt. 1998). Under normal circumstances, predation likely 
was not a significant threat, but because the species has been reduced 
to such low levels, predation may significantly impact the persistence 
of remaining populations.
    Lupinus sulphureus ssp. kincaidii evidently hosts a number of 
herbivorous and parasitic insect species. Gall-forming insects attack 
unopened flowers and the bases of woody stems. Weevils lay eggs in the 
developing floral embryos, and their offspring stimulate the fruit to 
produce callous tissue as a food source. Misdirection of the developing 
fruit by weevil larvae effectively prevents viable seed formation in 
the parasitized fruits (Kuykendall and Kaye 1993b). Weevil damage at 
some sites (e.g., Willow Creek) can be high, with some plants suffering 
90 percent loss of mature fruits (E. Alverson, pers. comm. 1994). 
Herbivory has been documented at all three Fern Ridge Reservoir sites. 
Loss of floral parts through herbivory can also significantly reduce 
reproduction. Larvae of the silvery blue butterfly (Glaucopsyche 
lygdamus) graze flowers for pollen and in doing so effectively destroy 
them. At the Fir Butte site, silvery blue butterfly larvae cause 
significant seed damage, as well as pollen damage to L. sulphureus ssp. 
kincaidii. They often chew through maturing pods, devour some or all of 
the seeds, then move on to the next pod (Schultz in litt. 1998). 
Silvery blue larvae can reach high population densities at some of the 
sites and may reduce the fecundity of L. sulphureus ssp. kincaidii, but 
do not appear to cause the death of mature individual plants (C. 
Schultz, pers. comm. 1994). On July 14, 1991, at the Boistfort Prairie 
site, pods of L. sulphureus ssp. kincaidii were observed with larvae 
feeding on them, and ants were feeding on the juices excreted from the 
larvae (Maxwell in litt. 1998). In a sample of 10 L. sulphureus ssp. 
kincaidii plants, 5 damaged pods were observed (Maxwell in litt. 1998). 
In 1992, adult silvery blue butterflies were positively identified as 
being present, and the caterpillars of the blues were observed feeding 
on L. sulphureus ssp. kincaidii. In 1993, damage to L. sulphureus ssp. 
kincaidii pods was observed again, but less than in the previous 2 
years (Maxwell in litt. 1998). Under normal circumstances, insect 
herbivory likely was not a significant threat, but because the species 
has been reduced to such low levels, herbivory may significantly impact 
the persistence of remaining populations.
    Evidence of insect herbivory on Erigeron decumbens var. decumbens 
is limited. Insect species collected on E. decumbens var. decumbens in 
1993 included sap-sucking insects (Hemiptera), a bruchid beetle, 
thrips, and mites (Clark et al. 1993). Other threats from herbivory 
include consumption of E. decumbens var. decumbens by cattle. However, 
no plants were found in areas currently or recently grazed during 
surveys conducted in 1986 (Kagan and Yamamoto 1987), and only one site 
was observed to support E. decumbens var. decumbens in the presence of 
cattle in 1993 (Clark et al. 1993).
    D. The inadequacy of existing regulatory mechanisms. In 1963, the 
protection of natural botanical resources by the State of Oregon was 
initiated with the passage of the Oregon Wildflower Law (ORS 564.010-
564.040). This law was designed to protect specific showy botanical 
groups including lilies, shooting stars, orchids, and rhododendrons 
from collection and trade by horticulturists interested in the 
cultivation of these species. It also prohibits the collection of 
wildflowers from ``within 500 feet of the centerline of any public 
highway'' (ORS 564.020 (2)). Although protective in spirit, the Oregon 
Wildflower Law carries minimal penalties and is rarely enforced. We 
doubt that this law is effective in protecting Lupinus sulphureus ssp. 
kincaidii and Erigeron decumbens var. decumbens populations.
    In 1987, Oregon Senate Bill 533 was passed to augment the 
legislative actions available for the protection of the State's 
threatened and endangered species, both plant and animal. This bill, 
known as the Oregon Endangered Species Act, mandates responsibility for 
threatened and endangered species in Oregon to two State agencies--the 
Oregon Department of Agriculture (ODA) for plant species (ORS 564.105) 
and the Oregon Department of Fish and Wildlife (ODFW) for ``wildlife'' 
species (ORS 496.172). As re-authorized in 1995 (HB 2120), the Oregon 
Endangered Species Act does not include invertebrate animals in the 
definition of ``wildlife.'' Therefore, Fender's blue butterfly receives 
no protection under the Oregon Endangered Species Act. The Oregon 
Natural Heritage Program is the only State agency ``which tracks 
locations of and works to protect the rare, threatened and endangered 
invertebrates of Oregon'' (Oregon Natural Heritage Program 1993). The 
Heritage program has created a Sensitive Species invertebrate list, 
which includes Fender's blue butterfly as a ``priority 1 species.'' 
Priority 1 species are ``taxa that are threatened or endangered 
throughout their range'' (Oregon Natural Heritage Program 1993). The 
program can assist planning agencies in managing lands for the benefit 
of rare invertebrate taxa, but it has no regulatory authority over rare

[[Page 3884]]

invertebrates (Jimmy Kagan, Oregon Natural Heritage Program, pers. 
comm. 1997).
    The Oregon Endangered Species Act directs the ODA to maintain a 
strong program to conserve and protect native plant species classified 
by the State as threatened or endangered. Erigeron decumbens var. 
decumbens, as a State-listed endangered species, and Lupinus sulphureus 
ssp. kincaidii, as a State-listed threatened species, receive 
protection on State-managed lands under the Oregon Endangered Species 
Act. The ODA is able to regulate the import, export, or trafficking of 
State-listed plant species when they are in transit (under ORS 
564.1200). The ODA's ability to protect plant populations, by 
restricting take under the Oregon Endangered Species Act, is limited to 
``land owned or leased by the state, or for which the state holds a 
recorded easement'' (ORS 564.115). ``Nothing in ORS 564.100 to 564.130 
is intended . . . to require the owner of any commercial forest land or 
other private land to take action to protect a threatened species or 
endangered species'' on their lands (ORS 564.135 (1)). As a result, 
populations of L. sulphureus ssp. kincaidii and E. decumbens var. 
decumbens on private lands receive minimal protection from their State 
status as endangered or threatened.
    ODOT owns and manages roadside habitat where Lupinus sulphureus 
ssp. kincaidii and Erigeron decumbens var. decumbens are present. The 
Oregon Endangered Species Act requires the protection of these State-
listed species on this State-managed land. In conjunction with Oregon 
State University researchers and the Native Plant Society of Oregon, 
ODOT has responded by providing road crews with maps of these areas and 
instructions to avoid herbicide use in these areas.
    Lupinus sulphureus ssp. kincaidii, Erigeron decumbens var. 
decumbens, and Fender's blue butterflies receive protection within the 
boundaries of the Service's National Wildlife Refuges. All three 
species occur together only at Baskett Slough National Wildlife Refuge, 
where habitat for the benefit of these species is actively managed.
    The BLM and the Forest Service (FS) manage lands occupied by 
Lupinus sulphureus ssp. kincaidii. On lands managed by the BLM, this 
species receives some protection through a general conservation 
agreement that applies to all Federal candidate species on BLM 
properties. The population of L. sulphureus ssp. kincaidii that occurs 
in the Umpqua National Forest is not covered under any conservation 
    On Corps lands, discretion for the protection and management of 
State-listed and Federal candidate species lies at the local level. 
Funds may be available in some years to proactively manage these 
species. Lupinus sulphureus ssp. kincaidii, Erigeron decumbens var. 
decumbens, and Fender's blue butterfly have received habitat 
protection, as well as support for research activity from the Corps 
through allocation of personnel and supplies to these projects. This 
protection and cooperation is voluntary for candidate species and is 
dependent on the continuation of sufficient funding.
    Populations of Erigeron decumbens var. decumbens occur in 
seasonally flooded wet prairies with hydric soils (Clark et al. 1993). 
Under section 404 of the Clean Water Act (CWA), the Corps regulates the 
discharge of fill into waters of the United States, including navigable 
waters, wetlands (e.g., wet prairies), and other waters (33 CFR parts 
320-330). The CWA requires project proponents to obtain a permit from 
the Corps prior to undertaking many activities (e.g., grading, 
discharge of soil or other fill material) that would result in the 
filling of wetlands subject to the Corps' jurisdiction. The Corps 
published nationwide permit number 26 (NWP 26) to address fill of 
isolated or headwater wetlands. Under the 1996 reauthorization of NWP 
26 (61 FR 65873), the Corps may automatically approve project proposals 
that involve the fill of wetlands less than 0.13 ha (0.33 ac) in size. 
Filling areas between 0.13 ha and 0.4 ha (0.33-1 ac) requires only 
notification to the Corps. When placement of fill would adversely 
modify between 0.4 and 1.2 ha (1 and 3 ac) of wetland, the Corps 
circulates a pre-discharge notification to us and other interested 
parties for comment to determine whether an individual permit should be 
required for the proposed fill activity and associated impacts.
    Individual Corps permits are required for discharge of material 
that would fill or adversely modify greater than 1.2 ha (3 ac) of 
wetlands. The review process for individual permits is more rigorous 
than for nationwide permits. Unlike nationwide permits, a cumulative 
analysis of wetland impacts is required for individual permit 
applications. Resulting permits may include special conditions that 
require potential avoidance or mitigation for environmental impacts. On 
nationwide permits, the Corps has discretionary authority to require an 
individual permit if the Corps believes that resources are sufficiently 
important, regardless of the wetland's size. In practice, however, the 
Corps generally does not require an individual permit when a project 
qualifies for a nationwide permit unless a threatened or endangered 
species or other significant resources would be adversely affected by 
the proposed activity. When a listed species may be affected, 
consultation requirements of section 7 of the Act do pertain to the 
Corps' regulatory process.
    Disking and some other farming, ranching, and silvicultural 
practices can degrade or destroy wetland habitat without a permit from 
the Corps because these activities are exempt from regulation under the 
CWA (33 CFR 323.4(a)). The discontinuous configuration of the existing 
wet prairies further obscures these wetland losses. Occurrences of 
Lupinus sulphureus ssp. kincaidii and Fender's blue butterfly in upland 
(non-wetland) areas receive no protection under section 404 of the CWA.
    The primary inadequacies in existing regulatory mechanisms pertain 
to populations of Fender's blue butterflies, Lupinus sulphureus ssp. 
kincaidii, and Erigeron decumbens var. decumbens that occur on private 
lands. Privately owned lands where populations of these species occur 
constitute a significant portion of the range of these species and play 
a substantial role in their continued existence.
    E. Other natural or manmade factors affecting its continued 
existence. The small and fragmented populations characteristic of the 
remaining Fender's blue butterfly, Lupinus sulphureus ssp. kincaidii, 
and Erigeron decumbens var. decumbens constitute a factor in affecting 
the continued existence of these taxa. Small populations are more 
vulnerable to all the natural and manmade factors that would not likely 
negatively influence relatively large and contiguous populations. 
Generally, the direct and indirect effects of small population size on 
most species, plant and animal, include loss of connectivity for 
dispersal, a decrease in genetic exchange, a resultant loss of 
population viability and vigor, and a hastening towards extinction 
(Gilpin and Soule 1986).
    Although few large sites (greater than 10 ha (25 ac)) are secure 
from habitat loss, large sites currently support relatively stable 
populations of Fender's blue butterflies, Lupinus sulphureus ssp. 
kincaidii, and Erigeron decumbens var. decumbens and provide the 
greatest potential for long-term persistence of the species if the 
current condition of these sites can be sustained or improved. The only 
large site occupied

[[Page 3885]]

by all of the species and that is considered relatively secure from 
habitat loss is Baskett Slough National Wildlife Refuge in Polk County, 
although the habitat condition is declining from invasion by nonnative 
weedy species (Hammond 1994, 1996; Hammond and Wilson 1993; Schultz 
1994). The two remaining large butterfly sites (Coburg Ridge area-1 and 
2, and McDonald State Forest 1) and the one remaining large L. 
sulphureus ssp. kincaidii site (McDonald State Forest 1) are not 
considered secure because these sites face loss or degradation of 
habitat through adjacent silviculture operations, ecological succession 
to shrub and forest, and competition from nonnative weedy species 
(Hammond 1994, Kuykendall and Kaye 1993a).
    Erigeron decumbens var. decumbens occupies three large sites. One 
site on Corps property and another on TNC property are being managed to 
benefit native prairie species and are relatively secure. The third 
site occurs on private land and is not managed for native prairie 
species and is not protected from habitat loss.
    The sites with small acreage where these three taxa occur, such as 
roadside and fence line/boundaries, face an immediate threat of 
destruction from a variety of disturbances. These disturbances include 
development, agriculture, silvicultural practices, roadside 
maintenance, and herbicide application. Of the 54 sites occupied by 
Lupinus sulphureus ssp. kincaidii, 45 occur on less than 3.4 ha (8.3 
ac). On sites where Fender's blue butterflies are found to co-occur 
with L. sulphureus ssp. kincaidii, a similar pattern is suggested, with 
24 of the 32 populations occurring on parcels of 3.4 ha (8.3 ac) or 
less. Of the 28 sites occupied by Erigeron decumbens var. decumbens, 20 
are less than 3.4 ha (8.3 ac).
    Given the impact of such habitat losses on these small habitat 
patches, the extirpation of most of the small Fender's blue butterfly 
populations is anticipated within the next 5 years. Lupinus sulphureus 
ssp. kincaidii may, however, survive for a longer time in these small 
sites. Nonetheless, because of the extensive habitat loss caused by 
development and agriculture, the extirpation of L. sulphureus ssp. 
kincaidii on the 45 small sites is also anticipated in the future. 
Similarly, these habitat losses are expected to also cause the 
extirpation of the 20 small populations of Erigeron decumbens var. 
decumbens. Should these smaller populations disappear, only large 
habitat sites will be left. Only eight sites of Fender's blue butterfly 
(75 percent reduction), nine sites of L. sulphureus ssp. kincaidii (74 
percent reduction), and eight sites of E. decumbens var. decumbens (72 
percent reduction) will remain.
    The importance of these small populations, particularly for the 
Fender's blue butterfly, lies in their potential to serve as stepping 
stones between larger neighboring populations. The loss of these 
populations and the accompanying potential habitat would severely 
compromise the ability of Lupinus sulphureus ssp. kincaidii and 
Erigeron decumbens var. decumbens or the Fender's blue butterfly to 
disperse from larger sites (Hammond and Wilson 1993, Schultz 1996). 
Larger populations would become more isolated and extinction-prone as 
opportunities for migration and/or recolonization are limited.
    A less visible threat to the smaller populations is a decrease in 
vigor and viability. For the Fender's blue butterfly, small numbers and 
localized populations increase the risk of loss through random genetic 
or demographic factors. (Gilpin and Soule 1986, Kuykendall and Kaye 
1993b, Lacy 1992, Hammond and Wilson 1993). Nineteen of the 32 Fender's 
blue butterfly sites contain an estimated 50 or fewer individuals. The 
threat of extinction due to naturally occurring genetic or demographic 
events can play a significant role in the instability of the species as 
a whole. The isolation of these small populations due to habitat 
fragmentation limits the potential for dispersal and migration and the 
resultant exchange of genetic material. Small, isolated populations 
with no opportunity of rescue from neighboring populations more easily 
become non-viable and/or extirpated.
    This pattern of extinction and re-colonization of connected 
colonies of butterflies has been disrupted by the extensive 
fragmentation of remaining habitat and the disruption of the 
disturbance regimes that have maintained them. The remnant populations, 
now small in numbers, are either unconnected or exchange individuals to 
a very limited degree. With their limited dispersal abilities, low 
numbers, and dwindling habitat, a majority of the remaining populations 
of Fender's blue butterfly likely face permanent extirpation.
    The effects of random environmental events are magnified in small 
populations. For instance, one small population of Erigeron decumbens 
var. decumbens previously found on Finley National Wildlife Refuge was 
lost due to erosion from a natural change in a waterway course (Meinke 
1980). Large fluctuations in Fender's blue butterfly populations have 
been correlated with random variations in weather conditions from year 
to year (Shultz 1996). These large fluctuations make Fender's blue 
butterfly extremely susceptible to loss of habitat and host plants due 
to human-caused disturbance or invasive nonnative plants. Maxwell (in 
litt. 1998) observed fluctuations in the inventory counts for both 
Lupinus sulphureus ssp. kincaidii and Delphinium leucophacum over a 4-
year period on the Boistfort Prairie. Lupinus sulphureus ssp. kincaidii 
counts ranged from 742 to 2,266 plants and strong evidence existed that 
these fluctuations in numbers were closely tied to weather patterns 
(Maxwell in litt. 1998). The timing of spring rains is very critical 
for production of above-ground biomass for these two species. In years 
with lower than average precipitation, these plant species may not even 
    A serious long-term threat to all Fender's blue butterfly, Lupinus 
sulphureus ssp. kincaidii, and Erigeron decumbens var. decumbens sites 
is the change in community structure due to plant succession. 
Continuing plant succession has been documented on 70 of the 88 relic 
prairie sites occupied by 1 or more of these species. Invasion by alien 
plant species has been documented at 37 of these 88 prairie sites. The 
natural transition of grassland to forest in the absence of disturbance 
such as fire will lead to the eventual loss of these prairie sites 
unless they are actively managed (Clark et al. 1993; Franklin and 
Dyrness 1973; Hammond and Wilson 1993; Johannsesen et al. 1971; 
Kuykendall and Kaye 1993a). The presence of tall, fast-growing 
nonnative species speeds the conversion of upland native prairie to 
dense, rank grasslands and shrub lands. Invasive woody species of 
concern include nonnative plants such as Rubus discolor (Himalayan 
blackberry) and Cytisus scoparius (Scotch broom), and the native 
species Toxicodendron diversiloba (poison oak). Nonnative weedy 
herbaceous species include Cirsium arvense (Canada thistle). Nonnative 
grass species aggressive enough to suppress L. sulphureus ssp. 
kincaidii and E. decumbens var. decumbens include Holcus lanatus 
(velvet grass), Dactylis glomerata (orchard grass), Brachypodium 
sylvaticum (false-brome), and Arrhenatherum elatius (tall oat-grass) 
(Hammond 1996).
    At prairie remnant roadside sites, the degree of the threat of 
succession varies, depending on the vegetation control employed by each 
county. Many Fender's blue butterfly populations are close to local 
extinction at small

[[Page 3886]]

roadside sites. Populations along the roadside generally have low 
numbers of individuals because habitat, often degraded, can be invaded 
by nonnative grasses. This situation usually leads to succession by 
shrubs and trees (Hammond 1996). For instance, one roadside site at Oak 
Ridge previously considered stable has declined since 1992 because 
large thickets of Rubus ssp. (blackberry) and Cytisus scoparius have 
invaded the site (Hammond 1996).
    Non-roadside prairie remnant sites in general face the greatest 
threat from succession/weed expansion and invasion due to a lack of 
disturbance that disrupts successional progress. For instance, 
otherwise secure habitat on one Corps site has been heavily invaded by 
the nonnative plant Arrhenatherum elatius. The Fender's blue butterfly 
population on this site is becoming extremely small (Schultz 1996). 
Prime habitat occupied by Erigeron decumbens var. decumbens at the 
Baskett Butte site is rapidly being overtaken by native woody plants, 
nonnative grasses and trees (Hammond 1996). Approximately 25 percent of 
the large Coburg Ridge site occupied by Fender's blue butterfly and 
Lupinus sulphureus ssp. kincaidii is threatened by the profuse shrub 
growth of Cytisus scoparius (Hammond 1996). Regardless of the size of 
the site, invasion by nonnative plants is a threat at all sites 
occupied by any of the three species addressed in this rule.
    Compounding the threat of nonnative plant species is the control of 
weedy nonnative species by herbicides. Twenty-three Lupinus sulphureus 
ssp. kincaidii plants on the west side of the Boistfort Cemetery hill 
site were damaged by herbicide spray applied by a helicopter to 
eradicate Scotch broom and Canada thistle (Maxwell in litt. 1998). The 
application of pesticides and biological control agents to control 
insect pests, such as gypsy moths, is also a threat to Fender's blue 
butterfly. The potential threat from use of gypsy moth control agents 
on habitats occupied by the Fender's blue butterfly should not be 
dismissed even though the sensitivity of Fender's blue butterfly larvae 
to specific insecticides is not known (Hammond 1994). The use of 
microbial insecticides, such as Bacillus thuringiensis (Bt), has been 
shown to have significant residual toxic impacts on native butterflies. 
This negative impact is evident under field conditions, even with heavy 
rain and ultraviolet light exposure (Scriber and Gage 1995).


    Natural and human-caused factors threaten the remaining populations 
of Fender's blue butterflies, Lupinus sulphureus ssp. kincaidii, and 
Erigeron decumbens var. decumbens. As a result of their small size, 
nearly all of the populations are threatened by either nonnative 
species, natural succession, or demographic and genetic factors. 
Populations of Fender's blue butterfly at all 32 sites currently are 
threatened by at least 1 of these factors. All 28 sites of E. decumbens 
var. decumbens and all 54 sites of L. sulphureus ssp. kincaidii are 
threatened by these factors. The encroachment of nonnative plants, the 
successional advance of tree and shrub species, and other naturally 
occurring random events will, if unchecked, lead to further reductions 
in population size and number leading to reduced population viability 
and, ultimately, the extinction of these three native prairie species.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by these species in developing this final rule. Threats to 
Fender's blue butterfly are more imminent than threats to Lupinus 
sulphureus kincaidii because the butterfly has a unique biology and 
shorter lifespan. Fender's blue butterfly will exhibit more rapid 
declines in numbers and in the face of threats will be extirpated more 
quickly at any one location than either of the two plant species. 
Because of the longer lifespan of a perennial plant, small numbers of 
L. sulphureus ssp. kincaidii plants are likely to persist longer in any 
given habitat than are small numbers of butterflies. The threats to 
Erigeron decumbens var. decumbens are more imminent than threats to L. 
sulphureus ssp. kincaidii because of the small number of E. decumbens 
var. decumbens populations. Also, many of the E. decumbens var. 
decumbens populations grow along roadsides adjacent to agricultural 
development (especially grass seed farms) where herbicide spraying to 
create bare soil is common practice. Based on our evaluation of all the 
available information, Fender's blue butterfly and E. decumbens var. 
decumbens are presently in danger of extinction throughout all or a 
significant portion of their respective ranges, while L. sulphureus 
ssp. kincaidii is likely to become endangered within the foreseeable 
future. Therefore, we find that listing of Fender's blue butterfly 
(Icaricia icarioides fenderi) and E. decumbens var. decumbens 
(Willamette daisy) as endangered is appropriate, and listing of L. 
sulphureus ssp. kincaidii (Kincaid's lupine) as threatened is 

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act 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 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. The term ``conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary (16 U.S.C. 1532(3)(5)(A)).
    Our regulations (50 CFR 424.12(a)(1)) state that designation of 
critical habitat is not prudent when one or both of the following 
situations exist--(1) The species is threatened by taking or other 
human activity and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    In the proposed rule, we indicated that designation of critical 
habitat was not prudent for Fender's blue butterfly (Icaricia 
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's 
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) 
because of a concern that publication of precise maps and descriptions 
of critical habitat in the Federal Register could increase the 
vulnerability of these species to incidents of collection and/or 
vandalism. We also indicated that designation of critical habitat was 
not prudent because we believed the limited benefit provided by 
designation was outweighed by the increase in threats from collection 
and/or vandalism.
    In the last few years, a series of court decisions have overturned 
our determinations regarding a variety of species that designation of 
critical habitat would not be prudent (e.g., Natural Resources Defense 
Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th Cir. 
1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 1280 
(D. Hawaii 1998)). Based on the standards applied in those judicial 
opinions, we have reexamined the question of whether critical habitat 
for Fender's blue butterfly (Icaricia

[[Page 3887]]

icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's 
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) would 
be prudent.
    Due to the small number of populations, Fender's blue butterfly 
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii 
(Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette 
daisy) are vulnerable to unrestricted collection, vandalism, or other 
disturbance. We remain concerned that these threats might be 
exacerbated by the publication of critical habitat maps and further 
dissemination of locational information. However, we have examined the 
evidence available for Fender's blue butterfly (Icaricia icarioides 
fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), and 
Erigeron decumbens var. decumbens (Willamette daisy) and have not found 
specific evidence of taking, vandalism, collection, or trade of these 
species or any similarly situated species. Consequently, consistent 
with applicable regulations (50 CFR 424.12(a)(1)(i)) and recent case 
law, we do not expect that the identification of critical habitat will 
increase the degree of threat to these species of taking or other human 
    In the absence of a finding that critical habitat would increase 
threats to a species, if there are any benefits to critical habitat 
designation, then a prudent finding is warranted. In the case of these 
species, there may be some benefits to designation of critical habitat. 
The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat. While a critical 
habitat designation for habitat currently occupied by these species 
would not be likely to change the section 7 consultation outcome 
because an action that destroys or adversely modifies such critical 
habitat would also be likely to result in jeopardy to the species, 
there may be instances where section 7 consultation would be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. There may also be some educational or informational 
benefits to designating critical habitat. Therefore, we find that 
critical habitat designation is prudent for Fender's blue butterfly 
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii 
(Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette 
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states that the processing of critical habitat determinations (prudency 
and determinability decisions) and proposed or final designations of 
critical habitat will no longer be subject to prioritization under the 
Listing Priority Guidance. Critical habitat determinations, which were 
previously included in final listing rules published in the Federal 
Register, may now be processed separately, in which case stand-alone 
critical habitat determinations will be published as notices in the 
Federal Register. We will undertake critical habitat determinations and 
designations during FY 2000 as allowed by our funding allocation for 
that year. As explained in detail in the Listing Priority Guidance, our 
listing budget is currently insufficient to allow us to immediately 
complete all of the listing actions required by the Act. Deferral of 
the critical habitat designation for Fender's blue butterfly (Icaricia 
icarioides fenderi), Lupinus sulphureus ssp. kincaidii (Kincaid's 
lupine), and Erigeron decumbens var. decumbens (Willamette daisy) will 
allow us to concentrate our limited resources on higher priority 
critical habitat and other listing actions, while allowing us to put in 
place protections needed for the conservation of Fender's blue 
butterfly (Icaricia icarioides fenderi), Lupinus sulphureus ssp. 
kincaidii (Kincaid's lupine), and Erigeron decumbens var. decumbens 
(Willamette daisy) without further delay. However, because we have 
successfully reduced, although not eliminated, the backlog of other 
listing actions, we anticipate in FY 2000 and beyond giving higher 
priority to critical habitat designation, including designations 
deferred pursuant to the Listing Priority Guidance, such as the 
designation for these species, than we have in recent fiscal years.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. We will develop a 
proposal to designate critical habitat for the Fender's blue butterfly 
(Icaricia icarioides fenderi), Lupinus sulphureus ssp. kincaidii 
(Kincaid's lupine), and Erigeron decumbens var. decumbens (Willamette 
daisy) as soon as feasible, considering our workload priorities. 
Unfortunately, for the immediate future, most of Region 1's listing 
budget must be directed to complying with numerous court orders and 
settlement agreements, as well as due and overdue final listing 
determinations (like the one at issue in this case).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against taking and harm of animals and 
certain activities involving listed plants are discussed, in part, 
    Section 7(a)(2) of the Act, as amended, 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. If a species is listed, section 7(a)(2) requires Federal 
agencies to ensure that activities they authorize, fund, or carry out, 
are not likely to jeopardize the continued existence of such a species 
or to destroy or adversely modify its critical habitat. If a Federal 
action is likely to adversely affect a listed species or its critical 
habitat, the responsible Federal agency must enter into formal 
consultation with us.
    The Federal Highway Administration provides partial funding for 
State highway maintenance. Therefore, any roadside habitat supporting 
Erigeron decumbens var. decumbens, Lupinus sulphureus ssp. kincaidii, 
and/or Fender's blue butterfly populations would be subject to section 
7 consultation on any federally funded maintenance activities. Also, if 
the U.S. Department of Housing and Urban Development, a Federal agency, 
is involved in the issuance of housing loans on private property 
supporting occurrences of E. decumbens var. decumbens, L. sulphureus 
ssp. kincaidii, or Fender's blue butterfly, such loans would be subject 
to review under section 7 of the Act. The BLM, FS, and Corps manage 
lands that are

[[Page 3888]]

known to contain existing populations of E. decumbens var. decumbens, 
L. sulphureus ssp. kincaidii, and Fender's blue butterfly. In these 
cases, consultation requirements placed upon Federal agencies by the 
Act would be required for actions that may affect these species. 
Furthermore, opportunities for land acquisition, conservation 
agreements, and other recovery strategies would be bolstered by listing 
these species as endangered or threatened.
    Active management of native prairie remnants is being carried out 
by the Portland District Corps, our Western Oregon National Wildlife 
Refuge complex, Eugene District BLM, and the Washington and Oregon 
field offices of TNC. In 1997, the Corps initiated an attempt to create 
two new Lupinus sulphureus ssp. kincaidii populations from seed 
collected from five areas around Fern Ridge Reservoir. One site was 
adjacent to the Green Oaks site at Fern Ridge, and the other is at Row 
Point at Dorena Reservoir. Both are on Corps lands and both are 
protected. Thirty-nine seedlings resulted at Row Point and 200 
seedlings survived at Green Oak in 1998.
    We have conducted research at Baskett Slough National Wildlife 
Refuge on the effects of prescribed fire, fire suppression, mowing, and 
herbicide on native and nonnative prairie species including Lupinus 
sulphureus ssp. kincaidii and Erigeron decumbens var. decumbens and 
Fender's blue butterflies. We have also controlled tall oatgrass in 
Fender's blue butterfly habitat and completed demographic studies of E. 
decumbens var. decumbens. In addition to efforts directed at managing 
and rehabilitating the remnant prairie habitat on Baskett Butte, we 
have been involved in projects to restore prairie habitat in former 
farm fields on Baskett Slough and William L. Finley National Wildlife 
Refuges. At the William L. Finley Refuge, the population of E. 
decumbens var. decumbens that was lost to erosion during the 1980s 
along a cut bank of Muddy Creek was located less than 0.5 km (0.3 mi) 
from a field that was retired from cultivation for the purpose of a 
prairie restoration project. The current intent is to reestablish 
Erigeron decumbens var. decumbens on this restored prairie. Also, Bald 
Top Knoll of the William L. Finley National Wildlife Refuge has been 
identified as a potential restoration site for the Willamette Valley 
dry prairie ecotype.
    Management of the six prairie remnants in the west Eugene wetlands 
of Lane County on BLM lands includes control of nonnative invasive 
species, primarily blackberry, tansy ragwort, meadow knapweed, and 
Scotch broom. BLM will use methods such as tractor mowing, hand pulling 
or cutting, and will remove native hardwoods and/or conifers needed to 
maintain these prairie remnants. As part of the West Eugene Wetlands 
Acquisition Program, BLM will acquire additional habitat supporting 
sensitive Willamette Valley prairie species as opportunities occur.
    At the Boistfort Cemetery, extensive Canada thistle patches at the 
base of the south side of the hill near Lupinus sulphureus ssp. 
kincaidii were pulled by TNC volunteers in 1993. On June 25, 1994, TNC 
volunteers pulled Canada thistle and cut scotch broom on the north side 
of the hill. Volunteers did weed control by hand at this private site 
to aid the landowner and in turn reduce herbicide use thus helping to 
preserve rare plant populations.
    On the TNC Willow Creek Natural Area, seedlings of Lupinus 
sulphureus ssp. kincaidii were introduced initially in 1995, then again 
in the fall of 1996, the spring of 1997, and the spring of 1998. TNC 
plans to continue monitoring through the year 2000 to evaluate how 
successful these efforts were.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened plants. The prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 for endangered plants and 50 CFR 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 reduce the species to possession 
from areas under Federal jurisdiction. In addition, for plants listed 
as endangered, the Act prohibits the malicious damage or destruction of 
the plants on areas under Federal jurisdiction and the removal, 
cutting, digging up, or damaging or destroying of such plants in 
knowing violation of any State law or regulation, or in the course of a 
violation of State criminal trespass law (see 16 U.S.C. 1538 
(a)(2)(B)). Section 4(d) of the Act allows for the provision of such 
protection to threatened species through regulation. This protection 
may apply to Lupinus sulphureus ssp. kincaidii in the future if a 
special regulation is issued after opportunity for public notice and 
comment. Seeds from cultivated specimens of threatened plants are 
exempt from these prohibitions provided that their containers are 
marked ``Of Cultivated Origin.'' Certain exceptions to the prohibitions 
apply to agents of the Service and State conservation agencies.
    The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the 
issuance of permits to carry out otherwise prohibited activities 
involving endangered and threatened plants under certain circumstances. 
Such permits are available for scientific purposes and to enhance the 
propagation or survival of 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 because Lupinus sulphureus ssp. kincaidii and Erigeron 
decumbens var. decumbens are not common in cultivation or in the wild.
    The Act and implementing regulations also set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. These prohibitions, in part, make it illegal for any person 
subject to the jurisdiction of the United States to take (includes 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect; 
or to attempt any of these), import or export, ship in interstate 
commerce in the course of commercial activity, or sell or offer for 
sale in interstate or foreign commerce any listed species. It also is 
illegal to possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally. Certain exceptions apply to 
agents of the Service and State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits 
are available for scientific purposes, to enhance the propagation or 
survival of the species, and/or for incidental take in connection with 
otherwise lawful activities.
    Our policy, as published in the Federal Register on July 1, 1994 
(59 FR 34272), is 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 the range of a species. Erigeron 
decumbens var. decumbens and Lupinus sulphureus ssp. kincaidii are 
known to occur on Federal lands under the jurisdiction of the Service, 
Corps, BLM, or FS. With issuance of this final rule, these species

[[Page 3889]]

on Federal lands are protected from collection. Erigeron decumbens var. 
decumbens is protected from malicious damage or destruction on Federal 
land under section 9 of the Act. In appropriate cases, collection of 
these species could be allowed through the issuance of a Federal 
permit. We are not aware of any otherwise lawful activities being 
conducted or proposed on private land that will be affected by this 
listing and result in a violation of section 9 for these plants.
    With issuance of this final rule, Fender's blue butterfly receives 
more extensive protection under the Act than described for Erigeron 
decumbens var. decumbens, and Lupinus sulphureus ssp. kincaidii. 
Section 9 prohibits the take of any listed wildlife species by any 
person subject to the jurisdiction of the United States. We believe 
that, based on the best available information, the following actions 
would not be violations of section 9:
    (1) Possession, delivery, or movement, including interstate 
transport involving no commercial activity, dead specimens of Fender's 
blue butterfly that were collected prior to the date of publication in 
the Federal Register of this final regulation adding this taxon to the 
list of endangered species;
    (2) Actions that may affect Fender's blue butterfly and are 
authorized, funded, or carried out by a Federal agency when the action 
is conducted in accordance with incidental take statements included in 
biological opinions issued under section 7 of the Act;
    (3) Land actions or management carried out under a habitat 
conservation plan approved by us pursuant to section 10(a)(1)(B) of the 
Act; and
    (4) Scientific research carried out under a permit issued by us 
pursuant to section 10(a)(1)(A) of the Act.
    Potential activities involving Fender's blue butterfly that would 
likely be considered a violation of section 9 include, but are not 
limited to, the following:
    (1) Take of Fender's blue butterfly without a permit pursuant to 
section 10(a)(1)A) or an incidental take permit pursuant to section 
10(a)(1)(B) of the Act (this includes harassing, harming, pursuing, 
hunting, shooting, wounding, killing, trapping, capturing, or 
collecting, or attempting any of these actions);
    (2) Possessing, selling, delivering, carrying, transporting, or 
shipping illegally taken specimens of Fender's blue butterfly;
    (3) Release of chemical or biological control agents that attack, 
damage, or kill any stage of this taxon, if not approved through 
section 7 consultation;
    (4) In areas where Fender's blue butterfly occurs, the removal or 
destruction of the food plants being utilized by Fender's blue 
butterfly, defined as Lupinus sulphureus ssp. kincaidii, Erigeron 
decumbens var. decumbens, Lupinus. albicaulis, and Lupinus. laxiflorus; 
    (5) Destruction or alteration of Fender's blue butterfly habitat by 
grading, leveling, plowing, mowing, burning, herbicide or pesticide 
spraying, intensively grazing, or otherwise disturbing grasslands that 
result in the death or injury of adult Fender's blue butterflies and/or 
their larvae or eggs, through significant impairment of the species' 
essential breeding, foraging, sheltering, or other essential life 
    You may direct questions regarding whether specific activities risk 
a violation of section 9 to the State Supervisor of our Oregon State 
Office (see ADDRESSES section). Requests for copies of the regulations 
concerning listed plant and animal species and general inquiries 
regarding prohibitions and permits may be addressed to the U.S. Fish 
and Wildlife Service, Endangered Species Permits, 911 N.E. 11th Avenue, 
Portland, Oregon 97232-4181 (telephone 503-231-2063; FAX 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 Endangered 
Species Act of 1973, as amended. A notice outlining our reasons for 
this determination was published 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, collection of information, unless 
it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
endangered plant species, see 50 CFR 17.62 and 17.63.

Executive Order 12866

    This rule has not been reviewed by the Office of Management and 
Budget under Executive Order 12866.

References Cited

    You may request a complete list of all references cited herein, as 
well as others, from the Oregon State Office (see ADDRESSES above).


    The primary author of this final rule is Dr. Andrew F. Robinson, 
Jr., Fish and Wildlife Biologist (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Final Regulation Promulgation

    For the reasons outlined in the preamble, we amend part 17, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations, 
as set forth below:


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

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

    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 
order under INSECTS, to the List of Endangered and Threatened Wildlife:

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened

[[Page 3890]]

                         *                *                *                *                *                *                *
Butterfly, Fender's blue.........  Icaricia icarioides   U.S.A. (OR)........  NA.................  E                                     NA           NA

                         *                *                *                *                *                *                *

    3. Amend Sec. 17.12(h) by adding the following, in alphabetical 
order, under FLOWERING PLANTS, to the List of Endangered and Threatened 

Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
Flowering Plants

                         *                *                *                *                *                *                *
Erigeron decumbens var. decumbens  Willamette daisy....  U.S.A. (OR)........  Asteraceae.........  E                                     NA           NA

                         *                *                *                *                *                *                *
Lupinus sulphureus ssp. kincaidii  Kincaid's lupine....  U.S.A. (OR, WA)....  Fabaceae...........  T                                     NA           NA
Lupinus oreganus var. kincaidii =
Lupinus sulphureus var. kincaidii
 = synonym.

                         *                *                *                *                *                *                *

    Dated: January 5, 2000.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 00-1561 Filed 1-24-00; 8:45 am]