[Federal Register: February 3, 2000 (Volume 65, Number 23)]
[Rules and Regulations]               
[Page 5268-5275]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE82

Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Plant Yreka Phlox from Siskiyou County, CA

AGENCY:  Fish and Wildlife Service, Interior.

ACTION:  Final rule.


SUMMARY:  We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status pursuant to the Endangered Species Act (Act) of 1973, 
as amended, for Phlox hirsuta (Yreka phlox). This perennial plant 
species is known only from two locations in Siskiyou County, 
California. A third location, near Etna Mills, California, has been 
searched, but no plants or habitats have been found since 1930. The 
primary threats to P. hirsuta include urbanization, inadequate State 
regulatory mechanisms, and extirpation from random events due to the 
small number of populations and limited range of the species. This rule 
implements the Federal protections and recovery provisions afforded by 
the Act for this plant.

DATES:  Effective March 6, 2000.

ADDRESSES:  The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Suite W2605, Sacramento, California 95825-1846.

Sacramento Fish and Wildlife Office (see ADDRESSES section) (telephone 
916/414-6645; facsimile 916/414-6710).



    Phlox hirsuta (Yreka phlox) is endemic to Siskiyou County, 
California, where it grows on serpentine slopes in the vicinity of the 
City of Yreka (California Native Plant Society (CNPS) 1985). Serpentine 
soils are rocky mineral soils consisting mostly of ultramafic rocks 
(rocks with unusually large amounts of magnesium and iron); the large 
amount of magnesium in the soil gives it a green mottled color. 
Ultramafic rocks are found discontinuously throughout California, in 
the Sierra Nevada and in the Coast Ranges from Santa Barbara County, 
California, to British Columbia. Soils produced from ultramafic rocks 
have characteristic physical and chemical properties, such as high 
concentrations of magnesium, chromium, and nickel, and low 
concentrations of calcium, nitrogen, potassium, and phosphorus. 
Serpentine soils alter the pattern of vegetation and plant species 
composition nearly everywhere they occur. While serpentine soils are 
inhospitable for the growth of most plants, some plants are wholly or 
largely restricted to serpentine substrates (Kruckeberg 1984).
    Elias Nelson (1899) described Phlox hirsuta based on a collection 
made by Edward L. Greene in 1876 near Yreka, Siskiyou County, 
California. Willis L. Jepson (1943) reduced the species to varietal 
status, treating the taxon as Phlox stansburyi var. hirsuta. Edgar 
Wherry (1955) in his monograph of the genus Phlox and most recently 
Patterson and Wilken (1993) recognize this taxon as Phlox hirsuta E. E. 
    Phlox hirsuta is a perennial subshrub in the phlox family 
(Polemoniaceae). The species grows 5 to 15 centimeters (cm) (2 to 5.9 
inches (in)) high from a stout, woody base and is hairy throughout. 
Narrowly lanceolate to ovate leaves with glandular margins are crowded 
on the stem. The leaves are 1.5 to 3 cm (0.6 to 1.2 in) long and 4 to 7 
millimeters (mm) (0.2 to 0.3 in) wide. Pink to purple flowers appear 
from April to June. The corollas (petals) of the flowers are 12 to 15 
mm (0.5 to 0.6 in) long and are smooth-margined at the apex (tip) (CNPS 
1977, 1985). The 5 to 8 mm (0.2 to 0.3 in) style (female reproductive 
organ in a plant) is contained within the corolla tube (tube formed by 
the flower petals) (CNPS 1977, 1985; Pattersen and Wilken 1993). 
Several other phlox species may occur within the range of P. hirsuta. 
Of these, P. speciosa (showy phlox) has notched petals and grows to 15 
to 40 cm (5.9 to 15.8 in), considerably taller than P. hirsuta. Phlox 
adsurgens (northern phlox) is also larger than P. hirsuta growing to 15 
to 30 cm (5.9 to 11.8 in). In addition, P. adsurgens blooms later (from 
June to August) than P. hirsuta and is glabrous (lacking hairs and 
glands) rather than hairy. Prostrate (lying flat on the ground) to 
decumbent (mostly lying on the ground but with

[[Page 5269]]

tips curving up) stems and herbage lacking glands separate P. diffusa 
(spreading phlox) from P. hirsuta (CNPS 1977, 1985). Although found at 
the same latitudes, P. stansburyi (Stansbury's phlox) occurs 112 
kilometers (km) (70 miles (mi)) farther to the east in Lassen and Modoc 
Counties (CNPS 1977). Phlox cespitosa is glandular-hairy, has a matted 
growth habit, and is one of several species of phlox that forms mats 
(Hickman 1993 third printing with corrections 1996), which is unlike 
the erect stem, open branch habit of P. hirsuta.
    Phlox hirsuta is found on serpentine soils at elevations from 880 
to 1,340 meters (2,800 to 4,400 feet) in association with Pinus 
jeffreyi (Jeffrey pine), Calocedrus decurrens (incense cedar), and 
Juniperus spp. (junipers) (CNPS 1985; California Department of Fish and 
Game (CDFG) 1986; California Natural Diversity Data Base (CNDDB) 1997). 
Phlox hirsuta is known from only two locations in the vicinity of 
Yreka, California. One occurrence is an open ridge in a juniper 
woodland within the city limits of Yreka (CNPS 1977, 1985; CNDDB 1997). 
Estimates of the area occupied by the occurrence range from 
approximately 15 hectares (ha) (37 acres (ac)) (Grant and Virginia 
Fletcher, in litt. 1995) to approximately 36 ha (90 ac) (Nancy Kang, 
Service, in litt. 1995a). Other extreme serpentine sites searched in 
the area do not support additional populations of Phlox hirsuta (Adams 
1987). The second occurrence is about 8 to 10 km (5 to 6 mi) southwest 
of Yreka along California State Highway 3 in an open Jeffrey pine 
forest (CNPS 1977, 1985; CNDDB 1997) and includes approximately 65 ha 
(160 ac) of occupied habitat (Service maps on file). A third location, 
where the species was last reported in 1930, is in the vicinity of Mill 
Creek near Etna Mills. The area was searched, but no plants or 
appropriate habitats were identified (CNPS 1985), and the location may 
be incorrect (CDFG 1986; Adams 1987). Surveys have been conducted on 80 
percent of the potential habitat (defined as the presence of suitable 
soils) on Klamath National Forest (Ken Fuller and Diane Elam, Service, 
in litt. 1997; Barbara Williams, Klamath National Forest, pers. comm. 
1997) and Bureau of Land Management (Joe Molter, Bureau of Land 
Management, pers. comm. 1997) lands within the Redding Resource Area; 
no new populations of P. hirsuta have been discovered.
    Land ownership of the two occurrences of Phlox hirsuta is a mixture 
of private, the City of Yreka, and the US Forest Service (CNDDB 1997). 
The City of Yreka occurrence of P. hirsuta is the more vigorous and 
dense of the two occurrences (Linda Barker, Klamath National Forest, in 
litt. 1985; Adams 1987; CNDDB 1997). Part of the P. hirsuta occurrence 
in the City of Yreka is owned by the City of Yreka; the remainder is 
privately owned (Larry Bacon, City of Yreka, pers. comm. 1997). The 
Highway 3 occurrence is partially on US Forest Service lands on the 
Klamath National Forest, partially within a State highway right-of-way, 
and partially privately owned (CDFG 1986; CNDDB 1997). Approximately 50 
percent of occupied habitat at the Highway 3 occurrence and 25 percent 
of the occupied habitat of the species is on land administered by the 
Klamath National Forest (based on maps in Service files; B. Williams, 
pers. comm. 1997). Phlox hirsuta is threatened by urbanization at the 
City of Yreka location and by inadequate State regulatory mechanisms 
throughout its range. The small number of populations and small range 
of the species also make it vulnerable to decline or extirpation due to 
random events throughout its range.

Previous Federal Action

    Federal action on Phlox hirsuta began as a result of section 12 of 
the Act, which directed the Secretary of the Smithsonian Institution to 
prepare a report on those plants considered to be endangered, 
threatened, or extinct in the United States. This report, designated as 
House Document No. 94-51, was presented to Congress on January 9, 1975, 
and included P. hirsuta as an endangered species. We published a notice 
in the July 1, 1975, Federal Register (40 FR 27823), announcing our 
decision to treat the Smithsonian report as a petition within the 
context of section 4(c)(2) (now section 4(b)(3) of the Act) and our 
intention to review the status of P. hirsuta. On June 16, 1976, we 
published a proposal in the Federal Register (41 FR 24523) to determine 
approximately 1,700 vascular plant taxa as endangered species pursuant 
to section 4 of the Act. The list of 1,700 plant taxa, which included 
P. hirsuta, was assembled on the basis of comments and data received by 
the Smithsonian Institution and us in response to House Document No. 
94-51 and the July 1, 1975, Federal Register publication.
    We published an updated Notice of Review for plants on December 15, 
1980 (45 FR 82480), that identified those plants currently being 
considered for listing as endangered or threatened. We included Phlox 
hirsuta as a category 1 candidate species. Category 1 candidates were 
defined as taxa for which we had on file substantial information on 
biological vulnerability and threats to support preparation of listing 
proposals. Our November 28, 1983, supplement to the Notice of Review 
(48 FR 53640) as well as the subsequent revision on September 27, 1985 
(50 FR 39526), included P. hirsuta as a category 2 candidate. Category 
2 taxa were those for which data indicated listing was possibly 
appropriate, but for which substantial data on biological vulnerability 
and threats were not currently known or on file to support a listing 
    We revised the plant notice of review again on February 21, 1990 
(55 FR 6184), and September 30, 1993 (50 FR 51143). In both notices, we 
included Phlox hirsuta as a category 1 candidate. In our February 28, 
1996, Notice of Review (61 FR 7596), we ceased using the category 
designations and included P. hirsuta as a candidate species. Candidate 
species are those taxa for which we have on file sufficient information 
on biological vulnerability and threats to support proposals to list 
the species as threatened or endangered.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on pending petitions within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further requires that 
all petitions pending on October 13, 1982, be treated as having been 
newly submitted on that date. That provision of the Act applied to 
Phlox hirsuta, because the 1975 Smithsonian report had been accepted as 
a petition. On October 13, 1982, we found that the petitioned listing 
of the species was warranted, but precluded by other pending listing 
actions, in accordance with section 4(b)(3)(B)(iii) of the Act; 
notification of this finding was published on January 20, 1984 (49 FR 
2485). Such a finding requires the petition to be recycled, pursuant to 
section 4(b)(3)(C)(i) of the Act. The finding was reviewed annually in 
October of 1984 through 1997.
    On April 1, 1998, we published a proposed rule to list Phlox 
hirsuta as an endangered species in the Federal Register (63 FR 15820). 
The comment period was open until June 1, 1998. With publication of 
this final rule, we now determine that P. hirsuta is endangered.
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and

[[Page 5270]]

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 for 
Phlox hirsuta is a Priority 2 action and is being completed in 
accordance with the current Listing Priority Guidance.
    We have updated this rule to reflect any changes in distribution, 
status, and threats since publishing the proposed rule and to 
incorporate information obtained through the public comment period. 
This additional information did not alter our decision to list these 

Summary of Comments and Recommendations

    In the proposed rule published April 1, 1998, in the Federal 
Register (63 FR 15820) and associated notifications, we requested all 
interested parties to submit factual reports or information that might 
contribute to development of a final rule. We contacted and requested 
comments from appropriate Federal agencies, State agencies, county and 
city governments, scientific organizations, and other interested 
parties. We published an announcement of the proposed rule in the 
Siskiyou Daily News on April 3, 1998, which invited general public 
comment. The public comment period closed on June 1, 1998. We received 
no request for a public hearing.
    During the public comment period, 22 individuals or agencies 
submitted comments. Four commenters supported the listing, 11 
commenters opposed the listing, and 7 commenters were neutral. 
Supporting comments were received from the State and local chapter of 
the California Native Plant Society and two private citizens. Opposing 
comments were received from the Pacific Legal Foundation and 10 private 
citizens. Opposing comments and other comments questioning the proposed 
rule have been organized into specific issues. We summarized these 
issues and our response to each as follows:
    Issue 1: One commenter opposed the listing of Phlox hirsuta, 
stating that the Federal Government lacks authority under the Commerce 
Clause of the Constitution to regulate this plant species.
    Service Response: A recent decision in the United States Court of 
Appeals for the District of Columbia Circuit National Association of 
Home Builders of the U.S. v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) 
makes it clear in its application of the test used in the United States 
Supreme Court case, United States v. Lopez, 514 U.S. 549 (1995), that 
regulation of endangered species limited to one State under the Act is 
within Congress' Commerce Clause power. On June 22, 1998, the Supreme 
Court declined to accept an appeal of this case (118 S. Ct. 2340 
(1998)). Therefore, our application of the Act to Phlox hirsuta is 
    Issue 2: Two commenters stated that existing State regulations, 
such as the California Environmental Quality Act (CEQA) regulatory 
mechanisms, were sufficient to protect Phlox hirsuta, and thought that 
federally listing P. hirsuta would be a duplication of effort.
    Service Response: We believe that the existing State regulatory 
mechanisms are inadequate to protect Phlox hirsuta. Please see factor D 
in the ``Summary of Factors Affecting the Species,'' section in this 
    We do not believe that federally listing Phlox hirsuta would be a 
duplication of effort. Federal and State regulations complement each 
other. As discussed further in factor D in the ``Summary of Factors 
Affecting the Species'' section, the CEQA and California Endangered 
Species Act (CESA) apply to actions on private and State lands. As 
applied to plant species, the Federal Endangered Species Act primarily 
covers Federal land and Federal actions that may affect proposed and 
listed species.
    Issue 3: Three commenters questioned the rarity of Phlox hirsuta. 
One of the commenters, in response to seeing an article in the Siskiyou 
Daily News, stated there is a lot of Yreka phlox growing in Siskiyou 
and Shasta Counties. Another commenter provided a long list of places 
to check. A third commenter provided photos of Phlox occurring in Scott 
Valley, noting that these plants appear to be very similar to the photo 
of Phlox hirsuta published in the Siskiyou Daily News on April 3, 1998.
    Service Response: We maintain that Phlox hirsuta is a very rare 
plant. As discussed in the ``Background'' section of this rule, several 
other Phlox species, that are much more abundant, may occur within the 
range of Phlox hirsuta. We sent the photos of Phlox from Scott Valley 
to Barbara Williams, Forest Botanist for the Klamath National Forest, 
who identified the Phlox as Phlox diffusa.
    Issue 4: One commenter stated that we should consider the economic 
effects of the listing on the local economies where the plant occurs.
    Service Response: Under section 4(b)(1)(A) of the Act, a listing 
determination must be based solely on the best scientific and 
commercial data available about whether a species meets the Act's 
definition of a threatened or endangered species. The legislative 
history of this provision clearly states the intent of Congress to 
``ensure'' that listing decisions are ``based solely on biological 
criteria and to prevent non-biological considerations from affecting 
such decisions,'' H.R. Rep. NO. 97-835, 97th Cong., 2nd Sess. 19 
(1982). As further stated in the legislative history, ``applying 
economic criteria . . . to any phase of the species listing process is 
applying economics to the determinations made under section 4 of the 
Act and is specifically rejected by the inclusion of the word `solely' 
in the legislation,'' H.R. Rep. NO. 97-835, 97th Cong. 2nd Sess. 19 
(1982). Because we are precluded from considering economic impacts in a 
final decision on a proposed listing, we did not examine such impacts.
    Issue 5: Three commenters were concerned the listing would violate 
private property rights under the Fifth Amendment to the US 
Constitution. A fourth commenter stated that public and private 
property owners should be adequately compensated for setting aside land 
for Phlox hirsuta.
    Service Response: We disagree that the listing of Phlox hirsuta 
would constitute a taking of private property in violation of the Fifth 
Amendment to the Constitution. The regulatory protection afforded 
listed plant species under the Act is limited. In particular, section 9 
of the Act does not prohibit the ``take'' of listed plant species on 
private lands. Generally, as applied to private property, only the 
removal, damage, or destruction of listed plant species in violation of 
a State law or regulation or in the course of a violation of a State 
criminal trespass law is a violation of the Act. Further, the mere 
issuance of a regulation, like the enactment of a statute, is rarely 
sufficient to establish that private property has been taken unless the 
regulation itself appears to deny the property owner economically 
viable use of personal property. In order to establish that their 
properties have been taken as a result of a regulatory action, such as 
the listing of a species, property owners must first initiate an 
attempt to utilize their property and

[[Page 5271]]

receive a determination regarding the level of use that is less than 
allowed prior to the listing. Property owners must ordinarily apply for 
all available permits and waivers before takings could potentially be 
established. The commenters have not provided any cogent legal basis 
for their assertions that listing Phlox hirsuta will result in a Fifth 
Amendment taking of private property.
    Issue 6: Several commenters were concerned about how private 
landowners may be affected by the listing of Phlox hirsuta.
    Service Response: Portions of the two Phlox hirsuta populations do 
grow on private land. As noted above, Federal listing does not restrict 
the damage or destruction of listed plants due to otherwise lawful 
private activities on private land beyond any level of protection that 
may be provided under State law. Federal listing of plants does not 
restrict any uses of privately owned land unless Federal funding or a 
Federal permit is involved. Listing Phlox hirsuta as endangered likely 
will not affect logging, farming, or ranching operations, including 
cattle grazing, on private land. Other activities that do not violate 
the taking prohibitions of section 9(a)(2) of the Act, as well as 
prohibited activities, are discussed further under the ``Available 
Conservation Measures'' section of this rule.
    Issue 7: Four commenters questioned the prudence of saving 
endangered species.
    Service Response: The Act directs us to conserve endangered and 
threatened species. The Act reflects the value Congress and the 
American people place upon the biological diversity of the United 
States. When a species goes extinct, part of our natural heritage has 
been lost and cannot be replaced. Additionally, every species is part 
of the biological network that supports all life. A species in decline 
is a sign that something may be wrong in the environment. By addressing 
the causes of a plant or animal's decline we are protecting the 
environment on which we all depend.
    Issue 8: One commenter asked how the threats to Phlox hirsuta might 
be eliminated.
    Service Response: Generally, recovery strategies for plants focus 
first on protection and management of known populations. This process 
would involve working with landowners to avoid adverse effects to the 
species. If use of private land does not involve Federal funding or 
permitting, or violate a State law, we do not have the authority to 
prevent any action that might affect federally listed plants. In these 
situations, the Service hopes that private landowners will work with us 
voluntarily to minimize the effects of their projects to listed 
species. When actions involve Federal land (as with U.S. Forest Service 
land) or Federal funding (as may be the case with California Department 
of Transportation (Caltrans) activities), we work with the Federal 
agency involved to minimize effects to listed species. When plant 
species consist of very few populations and/or very small ranges, like 
Phlox hirsuta, recovery strategies also include collection of seed for 
storage in botanic gardens. This action is designed to prevent 
extinction of the species due to catastrophic events (such as a flood) 
and to provide seeds for introduction to other sites, should we find 
that introductions are appropriate.
    Issue 9: Three commenters wanted to know the difference between 
Phlox hirsuta and other phloxes such as ``common phlox,'' P. caespitosa 
(tufted phlox), and P. diffusa (spreading phlox).
    Service Response: The Jepson Manual, Higher Plants of California 
(Hickman 1993 third printing with corrections 1996), provides the 
technical description of differences in these species. We recognize The 
Jepson Manual as the most recently accepted taxonomic treatment of 
plants in California. The Jepson Manual is the most recent taxonomic 
identification key (or flora, i.e., a treatise on the plants of an 
area) for plants of California, and the flora to which we refer for 
plant taxonomy. Earlier treatments of P. caespitosa, and its varieties, 
suggest it has smaller flowers than P. hirsuta. All of the treatments 
also describe P. caespitosa, and its varieties, as having a densely 
clumped (not open), tufted, or cushion-like growth form. In contrast, 
P. hirsuta is described as a subshrub (small shrub) having an erect 
stem and open branches. Please see the ``Background'' section of this 
rule for a discussion on how P. hirsuta differs from P. diffusa and 
other common phloxes.

Peer Review

    In accordance with Interagency Cooperative Policy published on July 
1, 1994 (59 FR 34270), we solicited formal scientific peer review and 
expert opinions of three independent and appropriate specialists 
regarding pertinent scientific or commercial data and assumptions 
relating to the taxonomy, population status, and supportive biological 
and ecological information for the proposed plant.
    Only one of the three requested reviewers provided comments. This 
reviewer supported the listing of Phlox hirsuta and commented 
specifically on the rarity of P. hirsuta. The reviewer stated that a 
number of botanists and other professionals interested in Phlox, in 
addition to those mentioned in the proposed rule, have searched very 
carefully for P. hirsuta populations without success. The reviewer 
thought that finding additional sites for P. hirsuta is very unlikely.

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533) and the 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 endangered or threatened due to one or more of 
the five factors described in section 4(a)(1). These factors and their 
application to Phlox hirsuta E.E. Nelson (Yreka phlox) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The Phlox hirsuta population 
within the City of Yreka represents at least 18 percent, and possibly 
45 percent, of occupied habitat for the species (calculated from 
Service records). This population is threatened by development, with 
the majority of the site already subdivided into lots for development 
(CNPS 1985; CDFG 1986). Eight of the subdivision lots support P. 
hirsuta; of these eight, seven have P. hirsuta on at least 75 percent 
of the lot (N. Kang, in litt. 1995a). Six of the eight lots are 
privately owned, and two are owned by the City of Yreka. Additionally, 
a smaller piece of land in the same area supports P. hirsuta and is 
also owned by the City (N. Kang, in litt. 1995a; L. Bacon, pers. comm. 
1997). The P. hirsuta occurrence within the City of Yreka has been 
disturbed by road construction associated with the subdivision (CNPS 
1985; CDFG 1986). An unmaintained roadway bisects the occurrence and 
likely represents permanent destruction of habitat at the site (N. 
Kang, in litt. 1995a). Additional disturbance resulted from grading for 
a house pad on one lot in 1994; Phlox hirsuta has not reinvaded the 
disturbed area (N. Kang, in litt. 1995a, 1995b). For most of the lots 
in the subdivision, ``the likely ones to be developed currently provide 
P. hirsuta habitat'' (N. Kang, in litt. 1995a, 1995b). Because P. 
hirsuta plants are fairly evenly distributed across the lots, strategic 
placement of development in occupied habitat would not necessarily 
minimize impacts to the species. Additionally, over the long-term, 
private landowners may not maintain their properties in a manner

[[Page 5272]]

consistent with protection of the plants and their habitat (N. Kang, in 
litt. 1995a). Formerly, some lots at the site were registered with The 
Nature Conservancy landowner contact program, but that program no 
longer exists (Lynn Lozier, The Nature Conservancy, pers. comm. 1997). 
While we are unaware of specific development plans on any lots at this 
time, a ``for sale'' sign was posted on the private property in May 
1997 (K. Fuller and D. Elam, in litt. 1997).
    The only other occurrence of Phlox hirsuta, located along 
California State Highway 3, has been disturbed in the past by logging 
and road construction. Although selective logging (CNPS 1985; Adams 
1987) resulted in roads and bulldozer trails through the site (Adams 
1987), logging is probably not a threat to P. hirsuta at this time (K. 
Fuller and D. Elam, in litt. 1997; B. Williams, pers. comm. 1997). 
Thirty years ago, the realignment of Highway 3 impacted part of this 
occurrence (Sharon Stacey, Caltrans, pers. comm. 1996). The area has 
since been designated by Caltrans as an Environmentally Sensitive Area 
(S. Stacey, pers. comm. 1998), which provides limited protection in 
that it requires acknowledgment of a sensitive species occurrence in 
project planning. Although road maintenance crews are to be made aware 
that no new ground is to be disturbed along this stretch of highway 
(Bob Sheffield, Caltrans, pers. comm. 1997), the portion of the 
occurrence within the Caltrans right-of-way could be disturbed by road 
maintenance (Charlotte Bowen, Caltrans, in litt. 1991). The area within 
the right-of-way consists of 5 small subpopulations with approximately 
100 plants, occupying less than 0.8 hectare (2 ac) along 4 km (2.5 mi) 
of California State Highway 3. While encroaching development has been 
considered to be a potential threat to the plants occurring on private 
lands at the Highway 3 site (CNPS 1985; CDFG 1986), the threat from 
development at this site does not appear imminent.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not known to be a threat to 
Phlox hirsuta, although it has been suggested that the species may be 
of interest to rock garden enthusiasts (CNPS 1977).
    C. Disease or predation. Disease presents no known threat to Phlox 
hirsuta. Parts of the Highway 3 site have been grazed in the past, 
perhaps by trespassing cattle (CNPS 1985; Adams 1987). However, grazing 
is probably not a threat to P. hirsuta at this time (K. Fuller and D. 
Elam, in litt. 1997; B. Williams, pers. comm. 1997).
    D. The inadequacy of existing regulatory mechanisms. The State of 
California Fish and Game Commission (CFGC) listed Phlox hirsuta as an 
endangered species under the California Endangered Species Act (CESA) 
(Chapter 1.5 section 2050 et seq. of the California Fish and Game Code 
and Title 14 California Code of Regulations 670.2). Although the 
``take'' of State-listed plants has long been prohibited under the 
California Native Plant Protection Act (CNPPA) (Chapter 10 Sec. 1908) 
and CESA (Chapter 1.5 section 2080), in the past these statutes have 
not provided adequate protection for such plants from the impacts of 
habitat modification or land use change. For example, under the CNPPA, 
after the California Department of Fish and Game notifies a landowner 
that a State-listed plant grows on his or her property, the statute 
requires only that the landowner notify the agency ``at least 10 days 
in advance of changing the land use to allow salvage of such a plant'' 
(CNPPA, Chapter 10 Sec. 1913). Under recent amendments to CESA, a 
permit under Section 2081(b) of the California Fish and Game Code is 
required to ``take'' State-listed species incidental to otherwise 
lawful activities. The amendments require that impacts to the species 
be fully mitigated. However, these requirements have not been tested 
with respect to State-listed plant species, and several years will be 
required to evaluate their effectiveness.
    CEQA requires full disclosure of potential environmental impacts of 
proposed projects, including impacts on State-listed plant species. 
Therefore, before proceeding with development of private and City of 
Yreka lands where Phlox hirsuta grows, the City of Yreka would require 
CEQA review (L. Bacon, pers. comm. 1997). The public agency with 
primary authority or jurisdiction over the project is designated as the 
lead agency and is responsible for conducting a review of the project 
and consulting with the other agencies concerned with the resources 
affected by the project. Section 15065 of the CEQA Guidelines requires 
a finding of significance if a project has the potential to ``reduce 
the number or restrict the range of a rare or endangered plant or 
animal.'' Once significant effects are identified, the lead agency may 
require mitigation for these effects through changes in the project or 
a mitigation plan. When mitigation plans are required, they often 
involve transplantation of the plant species to an existing or 
artificially created habitat, followed by destruction of the original 
site. Therefore, if the mitigation effort fails, the resource has 
already been lost. Furthermore, CEQA does not guarantee that such 
conservation efforts will be implemented. Finally mitigation is at the 
discretion of the lead agency, which may decide that overriding 
considerations make mitigation infeasible. In the latter case, projects 
that cause significant environmental damage, such as destruction of 
endangered species, may be approved. Protection of listed species 
through CEQA is, therefore, dependent upon the discretion of the agency 
    E. Other natural or manmade factors affecting its continued 
existence. Phlox hirsuta is known from only two small occurrences, 
which occupy fewer than 121 ha (300 ac) in a restricted habitat type 
(serpentine soils) over a very small range (approximately 65 square-km 
(25 square-mi)). The combination of only two populations, small range, 
and restricted habitat makes the species highly susceptible to 
extinction or extirpation from a significant portion of its range due 
to random events such as fire, drought, disease, or other occurrences 
(Shaffer 1981, 1987; Meffe and Carroll 1994). Such events are not 
usually a concern until the number of populations or geographic 
distribution become severely limited, as is the case with Phlox 
hirsuta. Once the number of populations or the plant population size is 
reduced, the remnant populations, or portions of populations, have a 
higher probability of extinction from random events (Primack 1993).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by Phlox hirsuta in determining to finalize this rule. 
Urbanization, inadequate State regulatory mechanisms, and extirpation 
from random events due to the small number of populations and small 
range of the species threaten P. hirsuta. The two occurrences of P. 
hirsuta total fewer than 121 ha (300 ac) of occupied habitat in the 
vicinity of the City of Yreka, Siskiyou County, California. The site 
within the City of Yreka is already subdivided, has been disturbed by 
activities associated with urbanization in the past, is situated in an 
area that is suitable for development, and is unprotected from this 
threat. In addition, both occurrences are at risk due to inadequate 
State regulatory mechanisms and due to potential extirpation of all or 
part of the occurrences due to random events. Therefore, the preferred 
action is to list P. hirsuta as endangered.
    Alternatives to listing were considered before publication of this 
final rule. The other alternatives were

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not preferred because they would not provide adequate protection and 
would not be consistent with the Act. Listing Phlox hirsuta as 
endangered would provide Federal protection for the species and result 
in additional protection as outlined under the ``Available Conservation 
Measures'' section.

Critical Habitat

    In the proposed rule, we indicated that designation of critical 
habitat was not prudent for Phlox hirsuta because of a concern that 
publication of precise maps and descriptions of critical habitat in the 
Federal Register could increase the vulnerability of this species to 
incidents of collection and vandalism. We also indicated that 
designation of critical habitat was not prudent because we believed it 
would not provide any additional benefit beyond that provided through 
listing as endangered.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species that designation 
of critical habitat would not be prudent (e.g., Natural Resources 
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 
1280 (D. Hawaii 1998)). Based on the standards applied in those 
judicial opinions, we have reexamined the question of whether critical 
habitat designation for Phlox hirsuta would be prudent.
    Due to the small number of populations, Phlox hirsuta is vulnerable 
to unrestricted collection, vandalism, or other disturbance. We remain 
concerned that these threats might be exacerbated by the publication of 
critical habitat maps and further dissemination of locational 
information. However, we have examined the evidence available for P. 
hirsuta and have not found specific evidence of taking, vandalism, 
collection, or trade of this species or any similarly situated species. 
Consequently, consistent with applicable regulations (50 CFR 
424.12(a)(1)(i)) and recent case law, we do not expect that the 
identification of critical habitat will increase the degree of threat 
to this species of taking or other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if there are any benefits to critical habitat 
designation, then a prudent finding is warranted. In the case of this 
species, designation of critical habitat may provide some benefits. The 
primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat. While a critical 
habitat designation for habitat currently occupied by this species 
would not be likely to change the section 7 consultation outcome 
(because an action that destroys or adversely modifies such critical 
habitat would also be likely to result in jeopardy to the species), in 
some instances, section 7 consultation might be triggered only if 
critical habitat is designated. Examples could include unoccupied 
habitat or occupied habitat that may become unoccupied in the future. 
Designating critical habitat may also provide some educational or 
informational benefits. Therefore, we find that critical habitat 
designation is prudent for Phlox hirsuta.
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states, ``The processing of critical habitat determinations (prudency 
and determinability decisions) and proposed or final designations of 
critical habitat will be funded separately from other section 4 listing 
actions and 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 complete 
immediately all of the listing actions required by the Act. Deferral of 
the critical habitat designation for Phlox hirsuta 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 P. hirsuta without further 
    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 Phlox hirsuta as soon as 
feasible, considering our workload priorities.

Available Conservation Measures

    Conservation measures provided to species listed as endangered 
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 State and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed, in part, below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered and with respect to its critical habitat, if any is being 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR Part 402. Section 7(a)(1) 
requires Federal agencies to use their authorities to further the 
purposes of the Act by carrying out programs for listed species. 
Section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
formal consultation with us.
    Listing Phlox hirsuta would provide for development of a recovery 
plan for the species. The plan would bring together both State and 
Federal efforts for conservation of the species. The plan would 
establish a framework for agencies to coordinate activities and 
cooperate with each other in conservation efforts. The plan would set 
recovery priorities and estimate costs of various tasks necessary to 
accomplish them. The plan also would describe site-specific management 
actions necessary to achieve conservation and survival of P. hirsuta. 
Additionally, pursuant to section 6 of the Act, we would be able to 
grant funds to the State of California for management actions promoting 
the protection and recovery of the species.
    Federal activities potentially affecting Phlox hirsuta include 
issuance of special use permits and rights-of-way. Approximately one-
half of the Highway 3 occurrence of Phlox hirsuta occurs on lands 
managed by the U.S. Forest Service. The U.S. Forest Service would be 
required to consult with us if any

[[Page 5274]]

activities they authorize, fund, or carry out may affect P. hirsuta. 
For example, consultations with U.S. Forest Service may be required on 
road maintenance and right-of-way authorizations for projects that 
include adjacent or intermixed private land.
    Other Federal agencies that may become involved if this rule is 
finalized include the Federal Highway Administration through funding 
provided to Caltrans. In addition, when we issue a permit under section 
10 of the Act for a habitat conservation plan (HCP) prepared by a non-
Federal party, we must prepare an intra-Service section 7 biological 
opinion regarding the effects of issuance of the section 10(a) permit 
on affected listed plant species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61 for endangered plants, apply. These prohibitions, in part, 
make it illegal for any person subject to the jurisdiction of the 
United States to import or export, 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 to possession 
from areas under Federal jurisdiction any such plant. In addition, the 
Act prohibits malicious damage or destruction on areas under Federal 
jurisdiction, and the removal, cutting, digging up, or damaging or 
destroying of such plants in knowing violation of any State law or 
regulation or in the course of any violation of a State criminal 
trespass law. Certain exceptions to the prohibitions apply to our 
agents and State conservation agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plant species. Such permits are available for scientific 
purposes and to enhance the propagation and survival of the species. We 
anticipate that few trade permits would ever be sought or issued for 
this species because it is not common in cultivation or in the wild.
    As published in the Federal Register on July 1, 1994 (59 FR 34272), 
it is our policy to identify to the maximum extent practicable at the 
time a species is listed those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of the listing on 
proposed and ongoing activities within a species' range. One of the two 
occurrences of Phlox hirsuta is on U.S. Forest Service lands. We 
believe that, based upon the best available information, the following 
actions will not likely result in a violation of section 9, provided 
these activities are carried out in accordance with existing 
regulations and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies, (e.g., grazing management, agricultural conversions, wetland 
and riparian habitat modification, flood and erosion control, 
residential development, recreational trail development, road 
construction, hazardous material containment and cleanup activities, 
prescribed burns, pesticide/herbicide application, pipelines or utility 
lines crossing suitable habitat) when such activity is conducted in 
accordance with any reasonable and prudent measures given by us in a 
consultation conducted under section 7 of the Act, and
    (2) Activities on private lands that do not involve Federal agency 
funding or authorization on private lands, such as construction of 
fences, livestock-water ponds, and livestock grazing, unless such 
activities are carried out in knowing violation of State law or 
regulation or in the course of any violation of a State criminal 
trespass law.
    We believe that the following could result in a violation of 
section 9; however, possible violations are not limited to these 
actions alone:
    (1) Unauthorized collecting of the species on Federal lands, and
    (2) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for purposes of scientific research and 
enhancement of propagation or survival of the species.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Sacramento Fish and Wildlife Office (see ADDRESSES 

National Environmental Policy Act

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

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information, 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
endangered plant species, see 50 CFR 17.62 and 17.63.

References Cited

    A complete list of all references in this document is available 
upon request from the Field Supervisor, Sacramento Fish and Wildlife 
Office (see ADDRESSES section).
    Author: The primary authors of this final rule are Diane Elam and 
Kirsten Tarp, U.S. Fish and Wildlife Service, Sacramento Fish and 
Wildlife Office (see ADDRESSES section) (telephone 916/414-6645).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    For the reasons given 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 section 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) * * *

[[Page 5275]]

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

                   *                  *                  *                  *                  *                  *                  *
Phlox hirsuta....................  Yreka phlox.........  U.S.A. (CA)........  Polemoniaceae......  E                       683  ...........           NA

                   *                  *                  *                  *                  *                  *                  *

    Dated: January 13, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-2310 Filed 2-2-00; 8:45 am]