[Federal Register: September 3, 2002 (Volume 67, Number 170)]
[Proposed Rules]               
[Page 56257-56259]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants: Notice of Intent 
To Prepare a Status Review for the Westslope Cutthroat Trout

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of Intent.


SUMMARY: We, the Fish and Wildlife Service, announce initiation of a 
new status review for the westslope cutthroat trout (Oncorhynchus 
clarki lewisi) in the United States, pursuant to a recent Court order 
and the Endangered Species Act of 1973, as amended. We request 
additional data, information, technical critiques, and relevant 
comments that may be available for this species.

DATES: Data, information, technical critiques, and comments must be 
submitted by November 4, 2002 to be considered in the status review and 
12-month finding.

ADDRESSES: Comments should be submitted to Westslope Cutthroat 
Comments, U.S. Fish and Wildlife Service, 2900 4th Avenue North, Room 
301, Billings, MT 59102. The amended petition and its bibliography, our 
initial status review document and petition finding, related Federal 
Register notices, the recent Court Order and Judgement and Memorandum 
Opinion, and other pertinent information are available for inspection, 
during normal business hours and by appointment, at that address. The 
above information also may be obtained at our Internet Web site <http:/
/mountain-prairie.fws.gov/endspp/fish/wct/. Comments may be 
submitted electronically to <fw6--westslope@fws.gov.

FOR FURTHER INFORMATION CONTACT: Lynn R. Kaeding at e-mail (Lynn--
Kaeding@fws.gov) or telephone (406) 582-0717.



    Section 4(b)(3)(B) of the Endangered Species Act of 1973 (Act), as 
amended (16 U.S.C. 1531 et seq.), requires that within 90 days of 
receipt of the petition, to the maximum extent practicable, we make a 
finding on whether a petition to list, delist, or reclassify a species 
presents substantial scientific or commercial information indicating 
that the requested action may be warranted. If the petition contains 
substantial information, the Act requires that we initiate a status 
review for the species and publish a 12-month finding indicating 
whether the petitioned action is--(a) not warranted, (b) warranted, or 
(c) warranted but precluded from immediate listing proposal by other 
pending proposals of higher priority. Notice of such 12-month findings 
are to be published promptly in the Federal Register.
    On June 6, 1997, we received a formal petition to list the 
westslope cutthroat trout (Oncorhynchus clarki lewisi) as threatened 
throughout its range and designate critical habitat for this subspecies 
pursuant to the Act. The petitioners were American Wildlands, 
Clearwater Biodiversity Project, Idaho Watersheds Project, Inc., 
Montana Environmental Information Center, the Pacific Rivers Council, 
Trout Unlimited's Madison-Gallatin Chapter, and Mr. Bud Lilly.
    The westslope cutthroat trout (WCT) is 1 of 14 subspecies of 
cutthroat trout native to interior regions of western North America 
(Behnke 1992). Cutthroat trout owe their common name to the distinctive 
red slash that occurs just below both sides of the lower jaw. Adult WCT 
typically exhibit bright yellow, orange, and red colors, especially 
among males during the spawning season. Characteristics of WCT that 
distinguish this fish from the other cutthroat subspecies include a 
pattern of irregularly shaped spots on the body that has few spots 
below the lateral line, except near the tail; a unique number of 
chromosomes; and other genetic and morphological traits that appear to 
reflect a distinct evolutionary lineage (Behnke 1992).
    The historic range of WCT is considered the most geographically 
widespread among the 14 subspecies of inland cutthroat trout (Behnke 

[[Page 56258]]

Although not known precisely, the historic distribution of WCT in 
streams and lakes can be summarized as follows--West of the Continental 
Divide, the subspecies is native to several major drainages of the 
Columbia River basin, including the upper Kootenai River drainage from 
its headwaters in British Columbia, through northwest Montana, and into 
northern Idaho; the Clark Fork River drainage of Montana and Idaho 
downstream to the falls on the Pend Oreille River near the Washington-
British Columbia border; the Spokane River above Spokane Falls and into 
Idaho's Coeur d'Alene and St. Joe River drainages; and the Salmon and 
Clearwater River drainages of Idaho's Snake River basin. The historic 
distribution of WCT also includes disjunct areas draining the east 
slope of the Cascade Mountains in Washington (Methow River and Lake 
Chelan drainages), the John Day River drainage in northeastern Oregon, 
and the headwaters of the Kootenai River and several other, disjunct 
regions in British Columbia. East of the Continental Divide, the 
historic distribution of WCT includes the headwaters of the South 
Saskatchewan River drainage (U.S. and Canada); the entire Missouri 
River drainage upstream from Fort Benton, Montana, and extending into 
northwest Wyoming; and the headwaters of the Judith, Milk, and Marias 
Rivers, which join the Missouri River downstream from Fort Benton. 
Today, various WCT stocks remain in each of these major river basins in 
Montana, Idaho, Washington, Oregon, and Wyoming.
    On July 2, 1997, we notified the petitioners that our Final Listing 
Priority Guidance, published in the December 5, 1996, Federal Register 
(61 FR 64425), designated the processing of new listing petitions as 
being of lower priority than completion of emergency listings and 
processing of pending proposed listings. A backlog of listing actions, 
as well as personnel and budget restrictions in Region 6 (Mountain-
Prairie Region), which was assigned responsibility for the WCT 
petition, prevented our staff from working on a 90-day finding for the 
    On January 25, 1998, the petitioners provided an amended petition 
to list the WCT as threatened throughout its range and designate 
critical habitat for the subspecies. The amended petition contained 
additional new information in support of the requested action. Because 
substantial new information was provided, we treated the amended 
petition as a new petition.
    On June 10, 1998, we published a notice in the Federal Register (63 
FR 31691) of a 90-day finding that the amended WCT petition provided 
substantial information indicating that the requested action may be 
warranted and immediately began a comprehensive status review of WCT 
(U.S. Fish and Wildlife Service 1999). In the notice, we asked for 
data, information, technical critiques, comments, or questions relevant 
to the amended petition.
    In response to our June 10, 1998, Federal Register notice, we 
received information on WCT from State game and fish departments, the 
U.S. Forest Service, National Park Service, tribal governments, and 
private corporations, as well as private citizens, organizations, and 
other entities (U.S. Fish and Wildlife Service 1999). That information 
indicated WCT presently occur in about 4,275 tributaries or stream 
reaches that collectively encompass more than 23,000 linear miles 
(36,800 kilometers) of stream habitat (U.S. Fish and Wildlife Service 
1999). Those WCT stocks are distributed among 12 major drainages and 62 
component watersheds in the Columbia, Missouri, and Saskatchewan River 
basins. In addition, WCT were determined to occur naturally in 6 lakes 
totaling about 72,900 hectares (180,000 acres) in Idaho and Washington, 
and in at least 20 lakes totaling 2,165 hectares (5,347 acres) in 
Glacier National Park in Montana. The status review also revealed that 
most of the habitat for extant WCT stocks lies on lands administered by 
Federal agencies, particularly the U.S. Forest Service (U.S. Fish and 
Wildlife Service 1999). Moreover, most of the strongholds for WCT 
stocks occur within roadless or wilderness areas or national parks, all 
of which afford considerable protection to WCT. In addition, there are 
numerous Federal and State regulatory mechanisms that, if properly 
administered and implemented, protect WCT and their habitats throughout 
the range of the subspecies.
    On April 14, 2000, we published a notice in the Federal Register 
(65 FR 20120) of our 12-month finding that the WCT is not likely to 
become a threatened or endangered species within the foreseeable 
future. We found that, although the overall WCT population has been 
reduced from historic levels and extant stocks of this subspecies face 
threats in several areas of the historic range, the magnitude and 
imminence of those threats are small when considered in the context of 
the widespread distribution and current status of the overall WCT 
population. Therefore, we concluded that listing of the WCT as a 
threatened or endangered species under the Act was not warranted at 
that time.
    On October 23, 2000, plaintiffs filed, in the U.S. District Court 
for the District of Columbia, a suit alleging four claims. Plaintiffs 
alleged that our consideration of existing regulatory mechanisms was 
arbitrary. Plaintiffs further claimed that our consideration of 
hybridization as a threat to WCT was arbitrary because, while 
identifying hybridization as a threat to WCT, we relied on a draft 
Intercross policy (61 FR 4710) to include hybridized WCT in the total 
WCT population considered for listing under the Act. Plaintiffs' third 
claim averred that we arbitrarily considered the threats to the trout 
posed by the geographic isolation of some WCT stocks and the loss of 
some WCT life-history forms. Finally, plaintiffs claimed that we failed 
to account for the threat of whirling disease and other important 
factors, and that our decision to not list the WCT as threatened was 
arbitrary and capricious. In subsequent oral argument, plaintiffs 
conceded that their strongest argument, and the one from which their 
other concerns stemmed, was that we included hybridized fish in the WCT 
population considered for listing under the Act, while also recognizing 
hybridization as a threat to the subspecies.
    On March 31, 2002, the U.S. District Court for the District of 
Columbia found that our listing determination for WCT did not reflect a 
reasoned assessment of the Act's statutory listing factors on the basis 
of the best available science. The Court remanded the listing decision 
to us with the order that we reconsider whether to list WCT as a 
threatened subspecies, and that in so doing we evaluate the threat of 
hybridization as it bears on the Act's statutory listing factors. 
Specifically, the Court ordered us to determine--(1) the current 
distribution of WCT, taking into account the prevalence of 
hybridization; (2) whether the WCT population is an endangered or 
threatened subspecies because of hybridization; and (3) if existing 
regulatory mechanisms are adequate to address threats posed by 
hybridizing, nonnative fishes.
    The Court also pointed out that the draft Intercross policy (61 FR 
4710) in no way indicates what degree of hybridization would threaten 
WCT, or that the existing levels of hybridization do not currently 
threaten WCT. Furthermore, the Court ruled that plaintiffs would have 
us assert a scientifically based conclusion about the extent to which 
it is appropriate to include hybrid WCT stocks and stocks of unknown 
genetic characteristics in the WCT population considered for

[[Page 56259]]

listing. We are particularly interested in receiving data, information, 
technical critiques, and relevant comments that will help us address 
this and other issues raised by the Court.

Request for Information

    We are soliciting comments from all interested parties regarding 
the status of this species. We are particularly interested in receiving 
information that will help us address the issues outlined above.

References Cited

Behnke, R.J. 1992. Native trout of western North America. American 
Fisheries Society Monograph 6.
U.S. Fish and Wildlife Service. 1999. Status review for westslope 
cutthroat trout in the United States. Regions 1 and 6. Available at our 
Web site (see ADDRESSES section).


    The primary author of this document is Lynn R. Kaeding, Chief, 
Branch of Native Fishes Management, Montana Fish and Wildlife 
Management Assistance Office, U.S. Fish and Wildlife Service, 4052 
Bridger Canyon Road, Bozeman, MT 59715.


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

    Dated: August 12, 2002.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 02-22303 Filed 8-30-02; 8:45 am]