[Federal Register: December 5, 2002 (Volume 67, Number 234)]
[Proposed Rules]               
[Page 72396-72407]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI45

Endangered and Threatened Wildlife and Plants; Threatened Status 
and Special Regulation for the Mountain Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of new information and reopening of the 
comment period.


SUMMARY: We, the Fish and Wildlife Service (Service), are reopening the 
comment period for our proposal to list the mountain plover (Charadrius 
montanus) as a threatened species. The proposed listing action was 
published in the Federal Register on February 16, 1999 (64 FR 7587), 
and new information

[[Page 72397]]

has become available that is pertinent to the species' biology and the 
listing factors we are required to consider under the Endangered 
Species Act of 1973, as amended (Act). We are reopening the comment 
period to share new information we have acquired and provide the public 
a new opportunity to provide comments on this listing proposal.
    We are also proposing a special rule under the authority of section 
4(d) of the Act, containing the prohibitions necessary to provide for 
the conservation of the mountain plover. The prohibitions we propose do 
not include a prohibition against the take of mountain plover during 
certain routine farming practices until December 31, 2004, in Colorado, 
Kansas, Nebraska, Oklahoma, and Laramie and Goshen Counties, Wyoming. 
During this period, research will be conducted to determine the impact 
of farming practices on cultivated fields to mountain plover nesting 
success within the southern portion of the breeding range. The 
finalization of this rule is contingent upon a final listing of the 
mountain plover as threatened.

DATES: We must receive comments from all interested parties by February 
3, 2003. We must receive requests for public hearings by January 21, 

ADDRESSES: Send comments and materials concerning this proposal to the 
Western Colorado Field Supervisor, U.S. Fish and Wildlife Service, 764 
Horizon Drive, Building B, Grand Junction, CO 81506-3946. You also may 
e-mail your comments to al_pfister@fws.gov. We will make comments and 
materials we receive available for public inspection, by appointment, 
during normal business hours at the above address. You also may obtain 
a copy of the 1999 proposed rule to list the mountain plover (64 FR 
7587) from this office, or access it at our Web site at http://www.r6.fws.gov/mtnplover/

FOR FURTHER INFORMATION CONTACT: Robert Leachman, at the above address, 
telephone 970-243-2778, facsimile 970-245-6933, or e-mail robert--
leachman@fws.gov. A copy of this notification and other information on 
the mountain plover can be found on the World Wide Web at http://www.r6.fws.gov/mtnplover/



    This supplementary proposed rule abbreviates the background, life 
history, and listing factor discussions published in the 1999 proposed 
rule. Most of the information we reported in 1999 remains substantially 
valid. New information that represents a significant addition to the 
mountain plover biology, abundance, and distribution as previously 
reported is included in this document. We also report new information 
relating to threats or existing conservation actions that significantly 
influence evaluation of the listing factors. We have not reported all 
new information that only affirms previously reported findings, nor do 
we cite all new information that represents a continuation of ongoing 
research cited in the 1999 proposed rule that has not materially 
changed the knowledge of mountain plover biology, distribution, 
abundance, or conservation needs. We have revised the References Cited 
to include the new information we have reviewed since 1999. Our 
References Cited document is available on request (see ADDRESSES). We 
have retained the organization of the 1999 proposed rule in this 
document to make review and comparison more efficient. Briefly, we have 
summarized the text of some sections of the 1999 proposed rule followed 
by pertinent new information, or simply provided a statement for other 
sections that new information did not materially change findings 
reported in the 1999 proposed rule. In this supplemental proposed rule 
document, we also propose to amend the table at 50 CFR 17.11(h) to 
reflect the proposed special rule for mountain plover.
    The mountain plover is similar in size and appearance to a killdeer 
(Charadrius vociferus), eats primarily insects, and is associated with 
short grass and shrub-steppe landscapes throughout its breeding and 
wintering range. It is commonly reported on heavily grazed sites, 
prairie dog colonies, and some cultivated fields. It is known to occur 
from Canada south across the high plains to Mexico. During the breeding 
season (late March through August), plovers can be found in Montana, 
Wyoming, and Colorado, and to a lesser extent in Utah, New Mexico, 
Arizona, Kansas, Nebraska, Oklahoma, and Texas. Nesting also has been 
reported in Canada and Mexico. During winter, plovers can be found 
primarily in the Central Valley and Imperial Valley of California. A 
few birds winter in Arizona, Texas, and Mexico.
    New information now confirms a few breeding mountain plovers in 
Mexico (Knopf and Rupert 1999a; F. Knopf, U.S. Geological Survey-
Biological Resources Division, in litt. 1999), and successful breeding 
on some cultivated lands in Colorado (T. McCoy, Colorado Natural 
Heritage Foundation, in litt. 2001). We also have new information 
describing the population trend of the mountain plover relative to 
other grassland endemics, based on new Breeding Bird Survey (BBS) data. 
The BBS information is provided later in this document.

Habitat Characteristics

    Short vegetation, bare ground, and a flat topography are recognized 
as habitat-defining characteristics of the mountain plover, at both 
breeding and wintering locales. Suitable breeding and wintering habitat 
characteristics can be provided by naturally occurring physiographic 
features, grazing by native mammalian herbivores (e.g., prairie dogs) 
or domestic livestock (e.g., sheep), or some agricultural practices. We 
now report that mountain plovers also are found on white-tailed 
(Cynomys leucurus) and Gunnison's (Cynomys gunnisoni) prairie dog 
colonies (P. Deibert, Service, pers. comm. 2002; Hawks Aloft, Inc. 
2001b). There also is new literature further describing a strong 
association of mountain plovers with prairie dogs (Dinsmore 2001, 
Kotliar et al. 1999). We also have learned that due to the absence of 
naturally vegetated suitable habitat, irrigated farmlands and grazed 
alfalfa fields have become the predominant winter habitat for mountain 
plovers in the Imperial Valley of California (Wunder and Knopf In 
draft). While in the Imperial Valley, plovers move onto fields for 
short periods following harvest, especially where the fields are turned 
over, burned, or grazed by sheep. Insect availability, furrow depth, 
size of dirt clods, and the vegetation of contiguous land parcels are 

believed to influence the suitability of individual cultivated fields 
(E. Marquis-Brong in litt. 1999a, F. Knopf pers. comm. 2000). 
Therefore, while cultivated lands are abundant throughout the Central 
and Imperial Valleys of California, not all of them are suitable 
wintering habitat.

Life History

    We described the mountain plover's life history in 1999 by 
addressing migration periods, nesting chronology, and common habitat 
features. Briefly, the mountain plover arrives on its breeding grounds 
from late March to late April and typically lays three eggs in a 
shallow depression. Mountain plover nests are loosely congregated, 
suggesting some colonialization. Chicks begin to fledge in June, and 
fall migration to winter habitat is well under way in August. Important 
new information includes a study completed in Montana predicting that 
1.9 years is the mean lifespan of a mountain plover and that the 
observed longevity record is 8 years (Dinsmore 2001). This research 
also documented that 55

[[Page 72398]]

percent of nests are incubated by males and 45 percent by females 
(Dinsmore 2001).

Breeding Distribution and Abundance

    In 1999, we presented our understanding of the historic and current 
distribution and abundance of mountain plovers for individual States 
within their breeding range and for wintering habitat locations in 
California, Arizona, and Mexico. Briefly, most mountain plovers breed 
in Montana, Wyoming, and Colorado, and most mountain plovers spend 
about 5 months on winter habitat in California. New information now 
shows that the Pawnee National Grassland (Pawnee) population in 
northeast Colorado has significantly declined since 1991, with fewer 
than 100 individuals now present at this location (Knopf pers. comm. 
2002). More mountain plovers than previously estimated now appear to be 
in South Park, Park County, Colorado (Granau and Wunder 2001). We 
provide the following summaries and new information for breeding and 
wintering locations:
    Colorado: We have no better estimate of breeding mountain plover 
numbers in Colorado than the estimate of about 7,000 individuals 
provided in the 1999 proposed rule. However, we believe it is important 
to note some additional information regarding Weld County, Colorado, 
which was reported in 1999 to be a historic breeding stronghold for the 
mountain plover. In 1991, Knopf estimated a population of 1,280 
mountain plovers on the Pawnee. As we reported in 1999, the Pawnee has 
experienced several exceptionally wet, cold weather events through June 
of each year since 1995, which has significantly changed the 
vegetation. These vegetation conditions continued through 1996 and 
1997. The number of successfully nesting mountain plovers counted on 
transects monitored on the Pawnee declined from 77 in 1990 to 2 in 2001 
(F. Knopf in litt. 2001). Knopf (pers. comm. 2002) currently estimates 
a population of less than 100 individuals on the Pawnee. Consequently, 
few adult birds and very little reproduction has been observed through 
2002. Preliminary results on the Pawnee from 2002, a drought year, 
indicate success at 69 percent of 13 nests on the native prairie. Fifty 
nests on experimental burns were 54 percent successful (F. Knopf pers. 
comm. 2002).
    As we reported in 1999, mountain plover research has continued in 
South Park, Park County, with the most current population estimate 
there being 1,500 to 2,000 breeding adults (Granau and Wunder 2001). In 
2002, 68 nests were identified, with a nest success of 90 percent (F. 
Knopf pers. comm. 2002).
    There also is new information about breeding mountain plovers on 
short grass prairie pastures and cultivated lands. Nesting habitat was 
modified by burning, and successful nesting by mountain plovers was 
documented on burned pastures on the Comanche National Grassland in 
Baca County in southeastern Colorado in 1999 (Svingen and Giesen 1999, 
K. Giesen in litt. 1999) and in South Park for several years (Granau 
and Wunder 2001). As we reported in 1999, mountain plovers are nesting 
on cultivated fields in southeast Colorado and adjacent States. To 
further address the implications of cultivated land to mountain plover 
conservation, new research was initiated in five eastern Colorado 
counties to better describe nest success and productivity on cultivated 
lands (T. McCoy in litt. 2001). In 2001, 44 nests were located on 
cultivated croplands in these counties, but reliable estimates of nest 
success, productivity, and population recruitment will require 
additional years of research (T. McCoy in litt. 2001).
    During 2002, researchers continued to monitor the breeding activity 
throughout eastern Colorado. The length of the breeding season varied 
between 2001 and 2002, with the 2001 season ending in July and the 2002 
season continuing into August. The longer 2002 season was attributable 
to extreme drought conditions in the eastern half of the State. Nest 
success did not vary substantially between cropland and rangeland in 
2001 but did show slightly higher nest success on rangeland in 2002. 
Predation was the major cause of nest failure, except in 2001, when 
agricultural practices destroyed more nests on croplands. Of rangeland 
nests, nest success was slightly higher on grassland with prairie dog 
colonies than on grasslands without prairie dog colonies (F. Knopf 
pers. comm. 2002). The researchers suggest that the direction in 2003: 
(1) Focus studies more precisely on locales where plovers nest in 
higher densities to maximize sample sizes, (2) rigorously test the 
emerging pattern of comparable nest success between rangeland and 
croplands, and (3) test the predictions that plover densities and nest 
success are highest on prairie-dog towns (F. Knopf pers. comm. 2002).
    There is no comprehensive science to precisely document whether the 
entire Colorado population is declining, stable, or increasing. Data 
collected from nesting sites in Colorado are not comparable to make 
such a cumulative State-wide trend assessment. However, credible 
information documents that nearly all mountain plovers have abandoned 
the Pawnee, a historically recognized breeding stronghold. Graul and 
Webster (1976) estimated that there may have been as many as 21,000 
mountain plovers on the Pawnee in the early 1970s; Knopf (1991) 
estimated about 1,280 individuals in 1991, while presently the Pawnee 
population is less than 100 individuals (F. Knopf pers. comm. 2002).
    Montana: Important new information is available from Montana. 
Mountain plovers no longer occur in Carbon, Teton, and Toole Counties 
(L. Hanebury pers. comm. 2002). Knowles and Knowles (1996) estimated 
fewer than 2,000 mountain plovers in Phillips and Blaine Counties, and 
fewer than 800 individuals at the other 8 occupied locations in the 
State. Following 6 years of research, Dinsmore (2001) estimated a 
population of 95 to 180 individual breeding mountain plovers in his 
study area in southern Phillips County, and he believes it is unlikely 
that there are more than 700 mountain plovers throughout all of 
Phillips and Blaine Counties. Dinsmore (2001) now concludes that, while 
the current mountain plover abundance in south Phillips County is 
stable, it is not known whether the number of individuals can persist 
in the long term, and their abundance is entirely dependent on the 
viability of the resident population of black-tailed prairie dogs. He 
also believes the estimate of 800 mountain plovers in other areas of 
Montana made by Knowles and Knowles (1996) is reasonable. Therefore, we 
believe the best information currently available indicates the total 
population in Montana is less than 1,500 mountain plovers (Knowles and 
Knowles 1996, Knowles and Knowles 1998, Dinsmore 2001, Dinsmore pers. 
comm. 2002). Although the Montana Department of Game, Fish, and Parks 
provided no data regarding mountain plover distribution and abundance 
in response to the 1999 proposed rule, department officials stated 
that, while the mountain plover population may fluctuate, it is still 
substantial (P. Graham, Montana Game, Fish and Parks, in litt. 1999).
    Wyoming: As we reported in 1999, the mountain plover is classified 
as common in Wyoming, with breeding known or suspected in 20 of 28 
latitude/longitude blocks and an estimated population of 1,500 
individuals. Additional inventories have been conducted in Wyoming that 
confirm the current presence of mountain plovers at many of the 
previously reported locations. For example, surveys

[[Page 72399]]

conducted in the Powder River Basin in 2001 in preparation for the 
Wyodak Coal Bed Methane project found 15 mountain plovers (Good et al. 
2001, Keinath and Eble 2001), and surveys conducted on the Thunder 
Basin National Grassland found about 20 adults in 2001 (P. Deibert, 
Service, pers. comm. 2002). Knopf (in litt. 2001) reported that 
mountain plovers may be more common than previously believed, 
particularly in Carbon County. From 1999 and 2000, totals of 159 and 
105 mountain plover adults were reported from Sweetwater and Carbon 
Counties respectively, with many fewer individuals reported from 
Albany, Bighorn, Fremont, Lincoln, Natrona, Park, Sublette, and 
Washakie Counties (P. Deibert in litt. 2002). This is the best 
available population estimate for Wyoming.
    New Mexico: The 1999 proposed rule reported that most current 
mountain plover records were from northern New Mexico locations. 
Additional surveys have confirmed mountain plovers in the locations 
previously reported (Reeves 1998, 1999, 2000), which included 11 
plovers on Navajo Nation Tribal lands. Surveys conducted by Hawks Aloft 
(2001a, b) found mountain plovers in previously unsurveyed areas of 
Cibola and Sandoval Counties, and in Taos County. Five of the confirmed 
breeding sites in Taos County were on Gunnison's prairie dog towns 
(Hawks Aloft 2001b). Hawks Aloft (2001b) concluded that there is 
potential for large numbers of mountain plovers in Taos County.
    Nebraska: In 2002, the Rocky Mountain Bird Observatory located 64 
sites along 320 km (200 mi) of roads and private holdings with 116 
adults (F. Knopf pers. comm. 2002). The Observatory estimates that 
there are approximately 100 nests in the area, and upgrades the 
estimate of the Nebraska mountain plover population estimate to 
probably 200 birds.

Other Breeding Areas

    Mountain plover breeding was confirmed on a Mexican prairie dog 
town in 1999, in Nuevo Leon, Mexico (F. Knopf in litt. 1999). We have 
no substantive additional information to provide regarding other 
breeding areas reported in the 1999 proposed rule.

Winter Distribution

    The 1999 proposed rule provides detailed information regarding the 
distribution and abundance of mountain plovers on their winter habitat. 
We concluded that mountain plovers are most numerous in the Central and 
Imperial Valleys of California. All new information we have reviewed 
confirms the findings in the 1999 proposed rule. Some of the additional 
inventories include Wunder and Knopf (in draft) reporting 4,037 
mountain plovers in the Imperial Valley in 2001, and a total of 3,421 
mountain plovers found during a 9-day survey in the Imperial Valley 
beginning in late January 2002 (S. Myers, AMEC-Earth and Environmental, 
pers. comm. 2002).

Total Mountain Plover Population Abundance and Trend Estimates

    As previously reported, Knopf (1996b) estimated the North American 
mountain plover population to be between 8,000 and 10,000 birds. At the 
time of his estimate, only a 1994 count from California was available. 
Applying the same assumptions using the more recent winter counts would 
yield a similar estimate (Hunting et al. (in press), Shuford et al. 
2000, Wunder and Knopf (in draft), S. Myers pers. comm. 2002). We are 
not aware of any other total population estimates. It now appears that 
more mountain plovers are wintering in the Imperial Valley than the 
Central Valley, which is probably the result of habitat loss at other 
California historic wintering areas (Wunder and Knopf (in draft)). 
Edson and Hunting (1999) reviewed recent search efforts and records for 
the Central Valley in California, and classified the mountain plover as 
rare and local, exceedingly rare, or accidental, for all locations, but 
admitted that the difficulty in locating mountain plovers may partially 
contribute to the lack of records.
    New research now reports that mountain plover numbers at two 
historically recognized breeding strongholds (i.e., Phillips County, 
Montana, and the Pawnee in Colorado) are now small or nearly absent 
(Dinsmore 2001, F. Knopf pers. comm 2002).

Breeding on Cultivated Fields

    The mountain plover is attracted to manmade landscapes (e.g., sod 
farms and cultivated fields) that mimic their natural habitat 
associations, or sites with little vegetative cover (e.g., other 
agricultural lands and alkali flats). Land management practices on 
cultivated fields may include periods when fields are fallow, idle, or 
barren. If these fields remain fallow, idle, or barren during April and 
May, mountain plovers may choose these fields for nesting. Agricultural 
fields with residual cover less than 10 centimeters (4 inches) tall 
from March through May also may be attractive to plovers. Spring 
tilling practices to plant crops or control weeds may then destroy 
mountain plover nests and eggs (Tim McCoy, Colorado Natural Heritage 
Program, in litt. 2001; Shackford and Leslie 1995; Shackford et al. 
1999; Knopf 1996; Knopf and Rupert 1999). Because adults are able to 
escape from farm machinery, adult survival is considered to be high. 
While mountain plovers may re-nest on these fields, re-nesting by birds 
is rarely as successful as first attempts, and mountain plovers will 
likely abandon nests when the crop grows too tall (Knopf 1996).
    Breeding adults, nests, and chicks have been observed on cultivated 
fields in Colorado, Kansas, Nebraska, Oklahoma, and Wyoming (T. McCoy 
in litt. 2001, Shackford and Leslie 1995, Shackford et al. 1999). 
Between 1986 and 1995, Shackford et al. (1999) inventoried cultivated 
fields in 8 States within the breeding range of the mountain plover; 97 
percent of all nests observed were in Colorado, Kansas, Oklahoma, and 
southeastern Wyoming. During this inventory, 52 nests were found in 
these 4 States, with 50 percent of the nests on fallow or bare fields, 
23 percent on wheat fields, and the remainder on milo, forb, and corn 
fields. Although mountain plovers are nesting on cultivated fields in 
eastern Colorado and adjacent States, a study (Shackford et al. 1999) 
of 46 nests on cultivated fields found that 31 nests failed. The fate 
of the remaining 15 nests was undetermined. Of the 31 failed nests, 22 
nests (48 percent of total) were destroyed by farm machinery. None of 
the nesting attempts could be documented as successful.
    As a result of the inventory, Shackford et al. (1999) concluded 
that fewer birds nest in cultivated fields in northern latitudes 
because cropland acreage is relatively sparse in Montana and all but 
the southeastern corner of Wyoming, there is a shorter growing period, 
and spring wheat planted in northern latitudes is disturbed more 
frequently than the winter wheat planted in the south. They also noted 
that the short intervals between disturbances for spring wheat in the 
north would not normally allow enough time for breeding, nesting, and 
rearing young. Therefore, it appears that little risk to mountain 
plovers is posed by farming practices in Montana or Wyoming (except 
southeastern Wyoming), or by farming practices for dryland winter wheat 
or irrigated crops at other locations (J. Shackford pers. comm. 1999, 
F. Knopf pers. comm. 1999).

Previous Federal Action

    We addressed the previous Federal actions in the 1999 proposed 

[[Page 72400]]

Higher priority listing actions precluded listing work on the mountain 
plover during Fiscal Years 2000 and 2001. On October 16, 2001, 
Earthjustice (representing the Biodiversity Legal Foundation, 
Biodiversity Associates, and Center for Native Ecosystems) submitted a 
60-day Notice of Intent to sue to the Secretary of the Department of 
the Interior and the Fish and Wildlife Service Regional Director for 
failure to meet listing deadlines for the mountain plover, as required 
by section 4(b)(6)(A) of the Act. The Service responded to Earthjustice 
on December 21, 2001, with a commitment to reopen the comment period on 
the listing proposal by September 30, 2002. This date was subsequently 
extended to November 30, 2002.
    In the February 16, 1999, proposed rule (64 FR 7587) and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final rule. The comment period for the proposed rule was scheduled to 
end on April 19, 1999, but was extended to June 21, 1999 (64 FR 19108) 
to ensure all interested parties had an opportunity to submit comments 
on the proposal. Appropriate Federal and State agencies, county 
governments, scientific organizations, and other interested parties 
were contacted and requested to comment. Several newspaper articles 
appeared in Montana, Wyoming, and Colorado following our distribution 
of background materials to print media. The Service also solicited the 
expert opinions of three independent specialists regarding pertinent 
scientific or commercial data and issues relating to the biological and 
ecological information for the mountain plover. We received a total of 
194 written comments on the 1999 proposed rule. We have reviewed each 
of these comments and will consider them in developing a final rule.
    Public hearings were requested in Nebraska by the U.S. Forest 
Service; in Montana by the Phillips County Prairie Ecosystem Action 
Council, the Phillips County Board of County Commissioners, and Erin 
Crowder; and in Wyoming by the Park County Board of County 
Commissioners, Wheatland Irrigation District, Wyoming Farm Bureau 
Federation, Laramie County Conservation District, Platte County 
Resource District, Antelope Grange, Mountain Valley Livestock, Inc., 
Ultra Resources, and John and Phyllis Thalken.
    Public hearings were held at the following locations and dates:

[sbull] Billings, Montana, May 26, 1999.
[sbull] Malta, Montana, May 25, 1999.
[sbull] Greeley, Colorado, May 25, 1999.
[sbull] Lamar, Colorado, May 26, 1999.
[sbull] Casper, Wyoming, June 2, 1999.
    Notifications of these public hearings were advertised in the 
following newspapers:

[sbull] Greeley Tribune, Greeley, Colorado, May 5, 1999.
[sbull] Lamar Daily News, Lamar, Colorado, May 6, 1999.
[sbull] Pueblo Chieftain, Pueblo, Colorado, May 6, 1999.
[sbull] Billings Gazette, Billings, Montana, May 7, 1999.
[sbull] Bozeman Daily Chronicle, Bozeman, Montana, May 7, 1999.
[sbull] Great Falls Tribune, Great Falls, Montana, May 7, 1999.
[sbull] Independent Record, Helena, Montana, May 7, 1999.
[sbull] Lewistown News Argus, Lewistown, Montana, May 5, 1999.
[sbull] Phillips County News, Malta, Montana, May 5, 1999.
[sbull] Wyoming Tribune Eagle, Cheyenne, Wyoming, May 3, 1999.
[sbull] Casper Star-Tribune, Casper, Wyoming, May 7, 1999.

    We received written and verbal comments from State and Federal 
elected officials, State and Federal agencies, non-governmental 
organizations, and private citizens. Those who have submitted comments 
on this subject do not need to resubmit their comments. We will respond 
to all comments received when we issue a final rule.

Peer Review

    In compliance with the July 1, 1994, Service Peer Review Policy (59 
FR 34270), we solicited the expert opinions of three independent 
specialists regarding pertinent scientific or commercial data and 
issues relating to the supportive biological and ecological information 
for the mountain plover proposed listing rule published in 1999. We 
considered the responses received from the reviewers in developing this 
document. To satisfy our peer review policy for this document, and to 
implement a pilot process adopted by us on August 21, 2000, we have 
solicited the assistance of Sustainable Ecosystems Institute of 
Portland, Oregon, to provide the required independent peer review. The 
purpose of such peer review is to ensure listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this supplemental proposed rule 
immediately following publication in the Federal Register. We will 
invite these peer reviewers to comment, during the public comment 
period, on the specific assumptions and conclusions regarding the 
proposed listing and special regulations.
    We will consider all comments and information received during the 
60-day comment period on this supplemental proposed rule in a final 
decision on the listing action. Accordingly, the final determination 
may differ from the proposed rule and this document.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations promulgated to implement the 
listing provisions of the Act (50 CFR part 424), 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). We addressed each of these 
factors in the 1999 proposed rule. Here, we provide only new pertinent 
information for each of these factors.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

Historical and Current Conversion of Grassland in Breeding Range
    In the 1999 proposed rule, we provided statistics from the NRCS to 
show rangeland conversion from 1982 to 1992. We have now reviewed the 
most current records of rangeland conversions from 1992 to 1997 also 
available from the NRCS (http://www.nhq.nrcs.usda.gov/NRI; K. Musser, 
NRCS, in litt. 2000). Rangeland decreased during this period by 28,531 
ha (70,500 ac) in Colorado; 2,428 ha (6,000 ac) in Kansas; 45,730 ha 
(113,000 ac) in Montana; 6,880 ha (17,000 ac) in Nebraska; 3,157 ha 
(7,800 ac) in Oklahoma; and 7,851 ha (19,400 ac) in Wyoming (Service in 
litt. 2000). Further, a moratorium on sodbusting on State school lands 
in Montana was rescinded in 1998, which may promote additional 
conversions in an effort to maximize revenue on State school lands, and 
meet the objective for acres in production recommended by the 
Governor's Vision 2005 Task Force on Agriculture (L. Hanebury pers. 
comm. 2002). The total conversion reported for 1992 to 1997 is small 
(about 0.07 percent) relative to the total rangeland reported from the 
above States, and the area of mountain plover habitat converted is 
unknown due to the lack of vegetative and topographic details regarding 
each grassland parcel that was converted. While we cannot quantify the 
acres of mountain plover habitat that have been converted, the records 
we examined show that

[[Page 72401]]

grassland conversion continues at present. For example, grassland 
conversion in Blaine County, Montana, has recently occurred, with about 
809 ha (2,000 ac) converted in 2000, and another 809 to 1,012 ha (2,000 
to 2,500 ac) scheduled for conversion in 2002 (J. Peters, BLM, pers. 
comm. 2002). While mountain plovers were not known to occur on any of 
the parcels converted in Blaine County in 2000, the conversions 
occurred contiguous to grasslands with known nesting sites. Knowles 
(pers. comm. 2001) reports that a total of 13 percent of the land area 
in his Central Montana study area has been sod-busted from 1991 to 
1999, and that mountain plovers have abandoned all but one of the sites 
that were converted.
    In 1999, we also provided information regarding the conversion of 
grasslands to housing subdivisions, citing South Park, Park County, 
Colorado, as an example. We now have new information that increases our 
concern that housing development in South Park is a potential threat to 
mountain plovers and their habitat. Park County is one of the fastest 
growing counties in Colorado; population growth may double between 1998 
and 2005, and may reach 102,600 people by 2020 (Granau and Wunder 
2001). The population of mountain plovers in South Park is now 
estimated to be from 1,500 to 2,000 individuals, making this one of the 
largest remaining populations of mountain plovers known throughout 
their breeding range. Sixty-eight percent of mountain plover habitat is 
privately owned, and 32 percent of this has already been subdivided 
(Granau and Wunder 2001). The number of residential building permits in 
Park County tripled between 1991 and 1997. Most of these permits were 
issued in areas of Park County that are not occupied by mountain 
plovers, but some were issued in known breeding habitat (Hanson 1997; 
G. Nichols, Park County, Colorado, in litt. 1998). However, beginning 
in 1999, the number of building permits issued in areas considered to 
be mountain plover habitat (i.e., South Park) exceeded those issued in 
other parts of the county (Granau and Wunder 2001). Both Sherman et al. 
(1996) and Granau and Wunder (2001) identified the vulnerability of 
known breeding sites to ongoing and residential development. The 
mountain plover is one of the species addressed during current 
conservation planning efforts in Park County, but full build-out of 
those sites currently subdivided would be detrimental to mountain 
plovers (Granau and Wunder 2001).
Cultivated Areas in Breeding Range as Potential Population Sinks
    In the 1999 proposed rule, we stated that we believed that certain 
cultivated lands created population sinks for the mountain plover, 
which contributed to species decline. In an effort to better define the 
implications to mountain plover survival by nesting attempts in 
cultivated fields, research has been initiated on cultivated fields and 
rangelands in five counties in eastern Colorado (T. McCoy in litt. 
2001). Field research completed in 2001 found 44 nests on cultivated 
fields and 48 nests on rangeland, confirming the Shackford et al. 
(1999) finding that croplands may represent suitable nesting habitat 
for mountain plovers. Analysis of research results will begin in 2003, 
following completion of field data collection, and evaluation of 
implications to mountain plover survival will be available in 2004. 
Because current agricultural practices conflict with the mountain 
plover nesting cycle, we believe they may represent a threat to 
mountain plover reproduction.
Historical Conversion of Grassland in Winter Range
    We provided important details of grassland conversion in California 
in the 1999 proposed rule. We have learned that since 1997, an 
additional 3,966 ha (9,800 ac) of grasslands have been converted to 
dairy farming, orchards, and vineyards in the Central Valley (C. Davis, 
Service, in litt. 1999). Most of the conversion reported by Davis (in 
litt. 1999) occurred in the eastern part of the Central Valley, where 
historically fewer mountain plover sightings have occurred. However, we 
believe the anticipated urbanization of the Central Valley (see Hunting 
et al. (in press)) will result in the loss of habitat currently 
occupied by wintering mountain plovers.
    We also have learned that the Imperial Valley of California is 
likely an example of the shift of mountain plover wintering use 
following loss of grassland habitat. Wunder and Knopf (in draft) 
believe that greater than 50 percent of all mountain plovers now winter 
in the Imperial Valley. They believe this shift to agricultural lands 
in the Imperial Valley probably followed the rapid and nearly complete 
loss of grassland habitat at historic wintering sites at California's 
interior and coastal locations. Much of the deterioration of natural 
habitat was ongoing while the Imperial Valley was being converted to 
agriculture, and migrating mountain plovers began exploiting the newly 
available cultivated lands in the Imperial Valley, rather than 
continuing west to historic wintering locales (i.e., they were 
``shortstopped'' (Wunder and Knopf (in draft)). Mountain plovers in the 
Imperial Valley now exclusively use alfalfa fields grazed by domestic 
livestock, or fallow fields, burned sod farms, and sprouting wheat 
fields. Water conservation, water transfer projects, burning 
restrictions, and urbanization associated with the North American Free 
Trade Agreement (NAFTA) may result in changes to agricultural practices 
(S. Vissman, Service, in litt. 2001). NAFTA is expected to generate 
increased trade growth in the Imperial Valley, and highway projects are 
now being planned to improve transportation efficiency (California 
Department of Transportation 2001). As a result of NAFTA, the Imperial 
County population is expected to nearly double by 2020 (California 
Department of Transportation 2001). As a result of the anticipated 
population growth and impacts to prime farmland, the American Farmland 
Trust designated Imperial County as 1 of the top 20 threatened major 
land resource areas in the nation (California Department of 
Transportation 2001). Between 1982 and 1992, 7,689 ha (19,000 ac) of 
land in Imperial County were converted to urban uses. The loss of 
farmland associated with the current level of urbanization in Imperial 
County has had no measurable impact to wintering mountain plovers, but 
we believe anticipated growth will result in additional loss of 
farmland and influence agricultural practices on remaining farmlands 
(S. Vissman in litt. 2001). Wunder and Knopf (in draft) believe that 
the modification of agricultural practices, cessation of domestic 
livestock grazing, or addition of more restrictions on agricultural 
burning would be detrimental to mountain plovers in the Imperial 
Effects of Range Management on Mountain Plover Habitat
    In 1999, we stated that currently accepted domestic livestock 
grazing management can be detrimental to mountain plover breeding 
habitat. We have learned mountain plover winter habitat on the Carrizo 
Plain Natural Area in California also has been adversely impacted by 
the failure to continue domestic livestock grazing activities. 
Historically, as much as 50 percent (50,587 ha (125,000 ac)) of these 
lands were suitable wintering habitat. Following consolidation of 
properties to establish the Carrizo Plain, livestock grazing rates were 
adjusted to promote restoration of native plant communities.

[[Page 72402]]

Following an increase in rainfall associated with El Ni[ntilde]o events 
in recent years, the density of vegetation and dry residual matter now 
exceeds the limits tolerated by mountain plovers. The resistance to 
livestock grazing expressed by some segments of the public and the 
emphasis on native plant conservation have adversely affected 
opportunities to enhance mountain plover habitat. Recently, grazing has 
been restored to some areas of the Carrizo Plain and mountain plovers 
have begun to reoccupy these sites (S. Fitton pers. comm 2002). 
However, there probably is little more than 10 percent (10,117 ha 
(25,000 ac)) of the Carrizo Plain Area that is currently suitable 
habitat for mountain plovers (E. Marquis-Brong, BLM, in litt. 1999a).
    Mountain plovers on the Pawnee in Colorado are closely associated 
with heavily grazed, drier sites. The Forest Service is beginning to 
review grazing management plans for the Pawnee to identify actions that 
would benefit the mountain plover (J. Sidle, Forest Service, pers. 
comm. 2002). Currently, there is no schedule for adoption or 
implementation of revised grazing management prescriptions.
Effects of the Decline of Burrowing Mammals on Mountain Plover Habitat
    The 1999 proposed rule cited published literature to describe a 
strong association of mountain plovers with prairie dogs and kangaroo 
rats at numerous locations in their breeding and wintering range, and 
reported the historic losses and potential threats to prairie dogs and 
kangaroo rats. All new information we have describing the association 
of mountain plovers and prairie dogs confirms a strong association of 
mountain plovers with prairie dogs at numerous locations. We also now 
report that mountain plovers are found on white-tailed and Gunnison's 
prairie dog colonies (P. Deibert, Service, pers. comm. 2002; Hawks 
Aloft, Inc. 2001a).
    On July 31, 1998, we were petitioned by the National Wildlife 
Federation to list the black-tailed prairie dog as a threatened 
species. On February 4, 2000, we published our 12-month finding on this 
petition (65 FR 5476) and estimated the historic and current population 
of the black-tailed prairie dog in Montana, Wyoming, and Colorado. This 
document supports our previous findings regarding the historic decline 
of prairie dogs. Sylvatic plague now appears to be the greatest threat 
to prairie dogs and mountain plover habitat, as the amount of prairie 
dog control and land use conversion impacting prairie dogs have 
appeared to decline.
    We have no new information relating to burrowing rodents on 
mountain plover wintering range.
Oil, Gas, and Mineral Development in Mountain Plover Breeding Habitat
    We addressed the potential for development of mineral resources and 
the associated impacts to mountain plovers in the 1999 proposed rule. 
We are now aware of nine authorized or proposed active natural gas and 
coal bed methane projects in Wyoming that occupy either known or 
potential mountain plover nesting habitat (e.g., Continental Divide/
Wamsutter II Natural Gas Project, Seminoe Road Coal Bed Methane) (P. 
Deibert in litt. 2002). We also have more thoroughly reviewed mountain 
plover nesting records from existing mining locations, and have 
determined they are not adequate to determine the effects of mine 
development and operation on mountain plover nesting success (P. 
Deibert pers. comm 2002). It also is conceivable that construction of 
drill pads and roads could possibly create additional mountain plover 
habitat, but only when human activities at the sites are compatible 
with mountain plover nesting behavior. Due to the anticipated rate of 
growth in this industry, we continue to believe that oil and gas 
development if not adequately mitigated, represents a potential threat 
to breeding mountain plovers.

B. Overutilization for Commercial, Recreational, Scientific or 
Educational Purposes

    There is no new information relating to this listing factor.

C. Disease or Predation

    There is no new information substantially changing the information 
presented in the 1999 proposed rule.

D. The Inadequacy of Existing Regulatory Mechanisms

    There is no new substantial information relating to the value of 
other regulatory mechanisms to the conservation of the mountain plover. 
We have learned that the United States Shorebird Conservation Plan now 
assigns its highest conservation category score (5) to the mountain 
plover, one of five shorebirds receiving this ranking (Brown et al. 
2001). The mountain plover also is designated as threatened by Mexico 
(S. Jewell, Service, in litt. 2000).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Natural Factors
    New literature now reports that the predicted mean lifespan of a 
mountain plover is 1.92 years, and females can produce more than one 
clutch of eggs each year (Dinsmore 2001). The mountain plover's entire 
lifespan appears to be shorter than that of either the snowy plover 
(Charadrius alexandrinus) (Page et al. 1995) or piping plover 
(Charadrius melodus) (Haig 1992), but there is no mean lifespan 
prediction for any other shorebird (S. Haig, Clemson University, pers. 
comm. 2002). We are not aware of the implications of total lifespan for 
species persistence, but we believe a mean lifespan of less than 2 
years influences opportunities to reproduce, seek alternate breeding 
and wintering sites, and engage in intraspecific behavior that may 
influence population recruitment. Further, the mountain plover's narrow 
range of habitat requirements combined with high degree of site 
fidelity (see the 1999 proposed rule) increases its vulnerability to 
impacts at traditional breeding locales. For example, Graul (1973, 
1975) discussed the influence of climatic events on nesting mountain 
plovers during his research on the Pawnee. While he attributed as much 
as a 14 percent loss of nests to weather, and also reported the death 
of chicks to heat, he did not note any population level effects. 
However, because the average life span of a mountain plover is less 
than 2 years, and breeding does not occur until 1 year of age, an 
individual mountain plover will likely have only one breeding season to 
contribute to population recruitment. An individual mountain plover's 
contribution to recruitment may therefore be reduced or completely 
negated by the loss of nest, eggs, or young by natural or manmade 
events. Consequently, a short lifespan may aggravate the events that 
influence mountain plover conservation.
Manmade Factors
    We have no new substantial information to provide relating to 
manmade factors.

Critical Habitat

    In the 1999 proposed rule, we concluded that designation of 
critical habitat for the mountain plover was not prudent. Several court 
cases rendered since 1999 regarding critical habitat now require us to 
reevaluate the merits of critical habitat for the mountain plover. If 
designation of critical habitat

[[Page 72403]]

is prudent, we will develop a proposal to designate critical habitat 
for the mountain plover as soon as feasible, considering our workload 
priorities and available funding.

Available Conservation Measures

    We summarized the potential conservation measures for the mountain 
plover in the 1999 proposed rule to include: Management of cultivated 
lands, implementing grazing plans, changing management of Conservation 
Reserve Program tracts, modifying seeding criteria for Conservation 
Reserve Program tracts, and providing habitat modification incentives 
to private landowners. Also as we reported in 1999, we are coordinating 
with the NRCS to explore ways to implement these measures on private 
land. We also summarized other conservation opportunities available 
under sections 4, 7, 9, and 10 of the Act, listed those Federal 
agencies we believe are most likely to be affected by a listing action 
(including the types of actions that may require section 7 
consultation), and gave examples of some actions that either may be 
allowed, or prohibited, under section 9.

Special Rule

    When a wildlife species is listed as threatened, the general 
regulations at 50 CFR 17.31 apply the section 9 prohibitions of the 
Act, including the take prohibitions, to the species. These 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to ``take'' any listed wildlife 
species (i.e., to harass, harm pursue, hunt, shoot, wound, kill, trap, 
or collect any threatened or endangered species or attempt to engage in 
any such conduct) (16 U.S.C. 1532 (19)).
    Section 4(d) of the Act (16 U.S.C. 1533) provides that, whenever a 
species is listed as a threatened species, the Secretary of the 
Department of the Interior will issue regulations deemed necessary and 
advisable to provide for the conservation of the species. This can be 
accomplished through a ``special rule'' tailored to meet the needs of a 
particular threatened species. In that case, the general regulations 
applying most section 9 prohibitions to threatened species do not apply 
to that species, and the special rule contains the prohibitions 
necessary and appropriate to conserve that species.
    Such regulations generally are issued and published as special 
rules in the Federal Register along with or following a listing. In 
this case, we have chosen to concurrently publish this proposed special 
rule along with the reopening of the comment period for our proposal to 
list the mountain plover as threatened. We are proposing this special 
rule under the authority of section 4(d) of the Act containing the 
prohibitions necessary to provide for the conservation of the mountain 
plover. The prohibitions we propose do not include the take of mountain 
plover during certain routine farming practices until December 31, 
2004, in the southern portion of the breeding range. During this 
period, ongoing research will be completed to determine the impact of 
farming practices on cultivated fields to mountain plover nesting 
success within the southern portion of the breeding range. The 
finalization of this special rule is contingent upon the results of 
research now under way and the final listing of the mountain plover as 
a threatened species. If this proposed special rule is finalized, the 
general regulations at 50 CFR 17.31 would not apply to the mountain 
plover. However, almost all of the prohibitions contained in the 
general regulations are included in this proposed special rule. Our 
rationale for a proposed special rule follows.
    The February 16, 1999, proposal to list the mountain plover as a 
threatened species (64 FR 7587) identifies the take of mountain plovers 
on cultivated fields as one of many possible reasons for the decline of 
the mountain plover population. The proposed listing rule cites 
literature describing the loss of mountain plovers to spring tilling 
practices (see 64 FR 7587). Briefly, the mountain plover is attracted 
to manmade landscapes that mimic its natural habitat associations. Land 
management practices on cultivated fields in their breeding range may 
include periods when fields are fallow, idle, or barren. If these 
fields remain fallow, idle, or barren during April and May, mountain 
plovers may choose these fields for nesting, and subsequent spring 
tilling practices may then destroy mountain plover nests and eggs 
(Shackford and Leslie 1995, Knopf 1996, Shackford et al. 1999, Knopf 
and Rupert 1999, T. McCoy in litt. 2001).
    Because mountain plover nests, eggs, and chicks are being taken by 
spring tilling practices, but the implications of this loss to the 
mountain plover population are not known, the USGS-BRD, in coordination 
with the Service, the Colorado Division of Wildlife, and the Colorado 
Farm Bureau, initiated scientific research in 2001 on cultivated fields 
and rangelands. Field research will not be completed until 2003, and 
analysis of results will not be initiated until 2004.


    We have had numerous discussions with Dr. Fritz Knopf with the U.S. 
Geological Survey-Biological Resources Division and agricultural 
producers regarding the significance of spring tilling losses to the 
mountain plover population. The reasons for our identification of 
spring tilling as a potential threat are: The general observation by 
many farmers that the birds are nesting on their fields, the widespread 
application of these farming practices throughout the southern portion 
of the mountain plover's breeding range, and the observation of 
mountain plovers being taken by routine farming practices (T. McCoy in 
litt. 2001, Shackford et al. 1999). However, because there is no 
current literature comparing mountain plover productivity on 
noncultivated, traditionally used grasslands with productivity on 
cultivated fields, the influence of tilling practices on mountain 
plover recruitment cannot be estimated at this time.
    The Colorado Farm Bureau, the Wildlife Management Institute, the 
U.S. Geological Survey-Biological Resources Division, and the Service 
recognize that nest success on cultivated fields deserves further study 
(R. Leachman pers. comm. 2000). Consequently, the USGS-BRD initiated 
field research in 2001 to evaluate the effects of farming practices on 
mountain plovers by comparing productivity on cultivated fields with 
that occurring at noncultivated, traditionally used grassland sites (T. 
McCoy in litt 2001). In order to generate sufficient data for analysis, 
the research will continue for 3 consecutive years. We are proposing 
that incidental take of nesting mountain plovers on cultivated fields 
in the southern portion of the plover's breeding range be exempt from 
the prohibitions of section 9 of the Act while the research is being 
conducted, and for 1 year following to allow data analysis. We believe 
this interim exemption will allow completion of research to help define 
the influence of agriculture on nesting mountain plovers, encourage 
private landowners to participate in research directed at a declining 
species (e.g., allow researchers access to privately owned land), and 
contribute to the conservation of the species on private land by 
further defining farming practices that can have positive or negative 
effects on the species.
    This proposed special rule will allow us to work with the Colorado 
Farm Bureau, local agricultural producers, and local government 
representatives to

[[Page 72404]]

determine the specific types of agricultural practices occurring within 
the breeding range of the mountain plover, determine which of these 
practices have an effect on mountain plover nesting success, and 
identify mechanisms that can be implemented to minimize or preclude the 
impact of the take on the species.
    During 2002, researchers continued to monitor the breeding activity 
of mountain plovers throughout eastern Colorado. The length of the 
breeding season varied between 2001 and 2002 with the 2001 season 
ending in July and the 2002 season continuing into August. The longer 
2002 season was attributable to extreme drought conditions in eastern 
Colorado. Nest success did not vary substantially between cropland and 
rangeland in 2001, but did show slightly higher nest success on 
rangeland in 2002. Predation was the major cause of nest failure, 
except in 2001, when agricultural practices destroyed more nests on 
croplands. Of rangeland nests, nest success was slightly higher on 
grassland with prairie dog colonies than on grasslands without prairie 
dog colonies. The researchers suggest that direction in 2003: (1) Focus 
studies more precisely on locales where plovers nest in higher 
densities to maximize sample sizes, (2) rigorously test the emerging 
pattern of comparable nest success between rangeland and croplands, and 
(3) test the predictions that plover densities and nest success are 
highest on prairie-dog towns (F. Knopf in litt 2002).

Provisions of the Proposed Rule


    We propose to exempt specific types of agricultural practices from 
the prohibitions on take under 50 CFR 17.31 until December 31, 2004. 
During this time, the research now ongoing will be continued to 
determine the effects of different types of farming practices on 
mountain plover nesting productivity. The finalization of this special 
rule is contingent upon a final listing of the mountain plover and the 
results of the scientific research.

Take Prohibitions

    We propose that virtually all of the prohibitions under section 9 
of the Act that apply to threatened species continue to apply to the 
mountain plover, to the same extent that they apply to other threatened 
species under our general regulations at 50 CFR 17.31, except that 
certain activities would be exempted.

Exempted Activities

    We propose to include in this rule the following exemptions from 
take until December 31, 2004:
    The incidental take of mountain plovers during routine farming 
practices by non-Federal entities on existing summer fallow, cropland 
idle, or cropland harvested (as defined by U.S. Department of 
Agriculture, National Agricultural Statistics Service (USDA-NASS) 1997 
Census of Agriculture--Appendix (1)), from April 1 to June 30 in 
Colorado, Kansas, Nebraska, Oklahoma, and Laramie and Goshen Counties, 
    During the term of this special rule, research will be ongoing on 
existing summer fallow, cropland idle, and cropland harvested (as 
defined by U.S. Department of Agriculture, National Agricultural 
Statistics Service (USDA-NASS) 1997 Census of Agriculture--Appendix 
(1)) to compare productivity at these sites with that at noncultivated, 
traditionally used grassland sites to determine the influence that 
different farming practices have on mountain plover reproductive 
success. We are targeting these types of activities because previous 
researchers (Shackford et al. 1999, Knopf and Rupert 1999, T. McCoy in 
litt. 2001) have demonstrated some loss of mountain plover nests on 
cultivated fields due to agricultural activities.
    This special rule would allow us to develop a better understanding 
of potential conflicts between agricultural practices and nesting 
mountain plovers, as well as assist in the development of management 
recommendations that can either preclude or mitigate the effects of 
these agricultural practices. Situations where mountain plovers coexist 
with ongoing agriculture may provide valuable insight into habitat 
conditions required by them, and the specific types of agricultural 
practices that are compatible with or enhance successful mountain 
plover reproduction.
    We have maintained records of known occurrences of mountain 
plovers, as well as information on areas that may have high potential 
for habitat enhancement to improve nesting success throughout their 
breeding range. We have accumulated information regarding the historic 
and current distribution of mountain plovers. This information, 
combined with the information gained from the research discussed in 
this proposed rule, will assist in development of conservation actions 
that make the best use of the mountain plover's demonstrated nest site 
fidelity and in identification of those lands that have the highest 
potential for habitat enhancement. With this knowledge, our ability to 
implement an effective long-term recovery program will be enhanced.

Application of Research Results

    The proposed exemptions in this proposed special rule would provide 
for the development of meaningful long-term conservation efforts for 
the mountain plover on private land. We are optimistic that this rule 
would invite participation by State and local governments, agricultural 
interests, and the general public to help minimize risks to the 
mountain plover. The 3-year research project will provide information 
that may eventually lead to one or more of the following possibilities:
    (1) Extension of the exemption of take resulting from farming 
practices covered by this rule beyond December 31, 2004;
    (2) Identification of management recommendations that avoid 
``take'' under 50 CFR 17.31;
    (3) Modification of the scope of exemptions under the 4(d) rule 
(such as changes to the area covered by the exemption, the seasonal 
time periods during which the exemption is in effect, or the farming 
practices covered by the exemption);
    (4) Development of Habitat Conservation Plans or Safe Harbor 
Agreements under section 10 of the Act; or,
    (5) Expiration of this 4(d) rule without renewal (i.e., no special 
regulations providing exemptions to the take prohibitions).
    We will provide notice in the Federal Register of any such 
outcomes, and we will propose further rulemaking if appropriate.

Effects of the Special Rule

Future Section 7 Consultations

    This special rule does not change the obligation of Federal 
agencies to consult with us under section 7 of the Act concerning 
actions they authorize, fund, or carry out that may affect listed 
species, including the mountain plover.
    We believe that the exemption proposed in this special rule will 
allow completion of scientific research to help define the influence of 
agriculture on the mountain plover population, encourage private 
landowners to participate in research efforts directed at this 
declining species, and contribute to the conservation of the species on 
private land by further defining farming practices that can have 
negative and positive effects on the species.
    Once completed, this research will assist us in the implementation 

[[Page 72405]]

available conservation strategies, such as Habitat Conservation Plans, 
Candidate Conservation Agreements with Assurances, or Safe Harbor 
agreements. The research findings will help identify farming practices 
that may either enhance or prove detrimental to mountain plover nesting 
success. We intend to pursue and encourage the development of these 
conservation strategies using recommendations derived from this 
    Section 10(a)(1)(B) authorizes us to issue permits for the take of 
listed species incidental to otherwise lawful activities such as 
agriculture, surface mining, and urban development. Incidental take 
permits must be supported by a Habitat Conservation Plan that 
identifies conservation measures that the permittee agrees to implement 
to conserve the species, usually on the permittee's lands. Such 
conservation measures may include, for example, no-till practices that 
leave stubble too tall to be attractive to breeding mountain plovers. 
On summer fallow, cropland idle, or cropland harvested, the type of 
farm implement used and the timing of the use may be significant in 
reducing harm to plovers. These and other techniques to avoid take of 
plovers or protect plovers can be examined by producers in the 
development of a Habitat Conservation Plan, Candidate Conservation 
Agreement with Assurances, or Safe Harbor agreement. A key element in 
our review of each of these conservation strategies is a determination 
of the plan's effect upon the long-term conservation of the species. We 
would approve a Habitat Conservation Plan, and issue a section 
10(a)(1)(B) permit, as appropriate, if the plan would minimize and 
mitigate the impacts of the take and would not appreciably reduce the 
likelihood of the survival and recovery of that species in the wild.

Public Comments Solicited

    We intend that any final action resulting from this document will 
be as accurate and as effective as possible. Therefore, we are again 
seeking comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this document, particularly concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to the mountain plover;
    (2) The location of any additional breeding, wintering, or 
migration sites, including areas in Mexico and Canada;
    (3) Additional information concerning mountain plover distribution, 
population size, and/or population trend;
    (4) Information regarding current or planned land uses, and their 
possible beneficial or negative impact to the mountain plover or its 
habitat (e.g., agricultural conversions, oil and gas development, land 
exchanges, range management, conservation plans, conservation 
    (5) Information regarding mountain plovers on their wintering 
habitats (e.g., preferential use of natural versus agricultural 
habitats, habitat distribution and abundance, daily routines, night 
roosts, site fidelity, population abundance);
    (6) Additional biological or physical elements that best describe 
mountain plover habitat and that could be considered essential for the 
conservation of the mountain plover (e.g., burrowing rodent colonies, 
vegetation, food, topography);
    (7) Information relative to mountain plover distribution and 
productivity on cultivated lands, short grass prairie, and shrub-steppe 
    (8) Alternative farming practices that will reduce or eliminate the 
take of mountain plovers;
    (9) Other management strategies that will conserve the species 
throughout its range;
    (10) Information regarding the benefits of critical habitat 
    (11) Comments regarding the adverse or beneficial consequences of 
adopting special regulations regarding take of the mountain plover on 
cultivated lands in their breeding range;
    (12) The types of agricultural practices on cultivated fields that 
are compatible with maintenance of mountain plover breeding habitat;
    (13) Any evidence of successful and/or unsuccessful nesting by 
mountain plovers on cultivated fields;
    (14) Any evidence indicating that additional areas of cultivated 
lands should be considered for inclusion in this rule;
    (15) Any evidence of mountain plovers nesting on cultivated fields 
on Native American Tribal lands; and
    (16) Information regarding grazing practices on Federal lands 
within the range of the mountain plover and the impacts of this on the 
    In addition to the information solicited above, we are seeking 
private landowners interested in participating in the research 
discussed in the section of this document that explains the proposed 
special rule. As discussed previously, finalization of the special rule 
is contingent upon the results of continuing research. Permission from 
private landowners to allow access to their lands is a critical 
component of conducting this research project.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish us to withhold your name and/or address, you must 
state this prominently at the beginning of your comment. However, we 
will not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations, or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the address in ADDRESSES.
    Final promulgation of the protective regulations on this species 
will take into consideration the comments and any additional 
information received by us. Such communications may lead to a final 
regulation that differs from this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be made at least 15 days prior to the close 
of the public comment period.

Clarity of the Proposed Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this rule easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the rule clearly 
stated? (2) Does the rule contain technical language or jargon that 
interferes with its clarity? (3) Does the format of the rule (grouping 
or order of sections, use of headings, paragraphing, etc.) aid or 
reduce its clarity? (4) Would the rule be easier to understand if it 
were divided into more (but shorter) sections? (5) Is the description 
of the rule in the SUPPLEMENTARY INFORMATION section of the preamble 
helpful in understanding the proposed rule? What else could we do to 
make the rule easier to understand?

[[Page 72406]]

    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You may e-mail your comments to this address: 

Required Determinations

National Environmental Policy Act

    We have determined that Environmental Assessments and Environmental 
Impact Statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). We also have 
determined that Environmental Assessments and Environmental Impact 
Statements, as defined under the authority of the National 
Environmental Policy Act, need not be prepared in connection with 
regulations adopted pursuant to section 4(d) when they accompany 
listing actions. The proposed special regulation for the mountain 
plover is being developed as an integral component of the mountain 
plover listing action we proposed in 1999 (64 FR 7587), and for which 
we are giving notification of the reopening of the comment period 
today. Consequently, we have determined that neither an Environmental 
Assessment nor Environmental Impact Statement is necessary for this 
proposed special regulation to comply with the National Environmental 
Policy Act and 516 DM.

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act and 
assigned Office of Management and Budget clearance number 1018-0094, 
which expires July 31, 2004. 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 number. For additional information 
concerning permit and associated requirements for endangered species, 
see 50 CFR 17.21 and 17.22.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (Executive 
Order 13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This rule is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
energy action and no Statements of Energy Effects is required.

References Cited

    As we stated above, we have a complete list of all references cited 
in this document, as well as others, that are pertinent to the mountain 
plover. You may request this list from the Assistant Field Supervisor 
at the Grand Junction, Colorado Field Office (see ADDRESSES).


    Numerous Service biologists contributed to this document. You 
should direct any questions to Robert Leachman (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend 50 CFR part 17, as set forth 


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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1554; 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 ``BIRDS'' to read as follows:

Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

                                                                      * * * * * * *

                                                                      * * * * * * *
Plover, mountain................  Charadrius montanus  U.S.A. (western)..  Entire............  T              ...........           NA  17.41(c)

                                                                      * * * * * * *

    3. Amend Sec.  17.41 by adding paragraph (c) to read as follows:

Sec.  17.41  Special rules-birds.

* * * * *
    (c) Mountain plover (Charadrius montanus).
    (1) What activities are restricted or not allowed to protect the 
mountain plover? All of the prohibitions of Sec.  17.31 (a) and (b) and 
exemptions of Sec.  17.32 are applicable to take of the mountain plover 
except where identified in paragraph (c)(2) of this section.
    (2) What activities are allowed under this special rule for the 
mountain plover? The take prohibitions of Sec.  17.31 will not apply to 
the following:
    (i) The incidental take of mountain plovers during routine farming 
practices on summer fallow, cropland idle, or cropland harvested 
between April 1 and June 30 in Colorado, Kansas, Nebraska, Oklahoma, 
and Laramie and Goshen Counties, Wyoming, while the rule in this 
paragraph (c) is in effect; and,
    (ii) Activities covered under a valid permit issued by the Fish and 
Wildlife Service for conducting research, educational purposes, 
scientific purposes, enhancement of or propagation for survival of the 
mountain plover, zoological exhibition, and other conservation purposes 
in accordance with Sec.  17.32 and under a cooperative agreement with a 
State under section 6 of the Act (16 U.S.C. 1535), if applicable.
    (3) How long is this special rule in effect? The rule in this 
paragraph (c) is effective until December 31, 2004.

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    (4) Does this special rule apply to mountain plovers throughout 
their range? This special rule applies only to mountain plovers in 
certain areas of the southern portion of their breeding range (see 
paragraph (c)(2) of this section). It does not apply to wintering 
    (5) What types of agricultural activities are covered under this 
rule? Agricultural activities conducted on summer fallow, cropland 
idle, or cropland harvested are covered under the rule in this 
paragraph (c). Agricultural activities include mechanical practices 
such as tilling and other machinery-type activities that are used to 
prepare soil, plant crops, and control weeds.

    Dated: November 29, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-30801 Filed 12-4-02; 8:45 am]