[Federal Register: September 5, 2003 (Volume 68, Number 172)] [Notices] [Page 52784-52786] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr05se03-76] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Endangered and Threatened Wildlife and Plants; 90-Day Finding on Petition To Delist Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. ----------------------------------------------------------------------- SUMMARY: We, the U.S. Fish and Wildlife Service, make a 90-day finding for a petition to remove Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) from the Federal List of Threatened and Endangered Wildlife and Plants pursuant to the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.). We find that the petition presents substantial information indicating that delisting this plant may be warranted. We are initiating a status review to determine if delisting this species is warranted. DATES: This finding was made on August 29, 2003. To be considered in the 12-month finding on this petition, comments and information should be submitted to us by November 4, 2003. ADDRESSES: Comments, material, information, or questions concerning this petition and finding should be sent to the Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, CA 92009. The petition and supporting information are available for public inspection by appointment during normal business hours at the above address. FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, at the above address (telephone: 760-431- 9440). SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of the Endangered Species Act of 1973 (ESA) (16 U.S.C. 1531 et seq.) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. To the maximum extent practicable, this finding is to be made within 90 days of receipt of the petition, and the finding is to be published promptly in the Federal Register. If we find substantial information present, we are required to promptly commence a review of the status of the species (50 CFR 424.14). ``Substantial information'' is defined in 50 CFR 424.14(b) as ``that amount of [[Page 52785]] information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.'' Petitioners need not prove that the petitioned action is warranted to support a ``substantial'' finding; instead, the key consideration in evaluating a petition for substantiality involves demonstration of the reliability and adequacy of the information supporting the action advocated by the petition. On October 25, 2001, we received a petition to delist Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) dated October 24, 2001, from David P. Hubbard, Ted J. Griswold, and Philip J. Giacinti, Jr. of Procopio, Cory, Hargreaves & Savitch, LLP, that was prepared for the American Sand Association (ASA), the San Diego Off-Road Coalition, and the Off-Road Business Association (ASA et al. 2001). Various supporting documents were submitted with the petition. The petition (ASA et al. 2001) asserts that the original decision to list A. magdalenae var. peirsonii was in error, and claims that: (1) The original listing decision was made without an actual plant count; (2) the original listing relied on data developed prior to the implementation of the California Desert Protection Act (CDPA); (3) the original listing decision relied on field studies that the Bureau of Land Management (BLM) has since determined were biased and scientifically unsound; (4) monitoring studies indicate that A. magdalenae var. peirsonii is abundant and thriving; and (5) plant counts confirm that the Imperial Sand Dunes support more than 100,000 A. magdalenae var. peirsonii individuals and a healthy seed bank. On November 6, 2002 we received a 60-day notice of intent to sue from David P. Hubbard et al., representing the ASA et al, citing our alleged failure to make the findings on this petition as required by the ESA. A complaint was executed in the United States District Court for the Southern District of California on February 25, 2003. The plaintiffs (ASA et al.) challenge the Service's failure to make both the 90-day finding and 12-month finding on petition to delist the Peirsons's milk-vetch. In August 2003, the Department of Justice entered into a settlement agreement with ASA et al., requiring us to make a 90-day finding on this petition by August 29, 2003, and, if the 90-day finding is that the petition contains substantial information that delisting Astragalus magdalenae var. peirsonii may be warranted, a 12-month finding by May 31, 2004. As part of this settlement agreement, the petitioners asked that we also accept and consider the information provided in Phillips and Kennedy (2002) when making our findings. The factors for listing, delisting, or reclassifying species are described at 50 CFR 424.11. We may delist a species only if the best scientific and commercial data available substantiate that it is neither endangered nor threatened. Delisting may be warranted as a result of: (1) Extinction, (2) recovery, or (3) a determination that the original data used for classification of the species as endangered or threatened were in error. Biology and Distribution Astragalus magdalenae var. peirsonii occurs essentially as one population of scattered colonies within the Algodones Dunes in the Sonoran Desert of Imperial County, California. The Algodones Dunes are often called the Imperial Sand Dunes, a designation derived from a land use area called the Imperial Sand Dunes Recreation Area established by BLM. The habitat for A. magdalenae var. peirsonii is slopes and hollows of wind-blown desert dunes, chiefly along a northwest-to-southeast orientation on the BLM-managed land. The distribution and relative abundance of the plant varies from place to place and year to year (WESTEC Services, Inc. (WESTEC) 1977; Willoughby 2000, 2001; Thomas Olsen Associates, Inc. (TOA) 2001; Phillips and Kennedy 2002). The tendency of plants to be found in patches is likely due to the localized dispersal of the fruits and seeds, as well as dune morphology and differences in local rainfall patterns. Astragalus magdalenae var. peirsonii (Peirson's milk-vetch) is an erect to spreading, short-lived perennial in the Fabaceae (Pea family) (Barneby 1959, 1964). Plants may reach 20 to 70 centimeters (cm) (8 to 27 inches (in)) in height and develop taproots (Barneby 1964) that penetrate to the deeper, more moist sand. The stems and leaves are covered with fine, silky appressed (flat on surface) hairs. The small, narrow, widely spaced leaflets may fall off in response to drought. The purple flowers are arranged in 10-to 17-flowered axillary racemes. Individuals are reportedly able to flower in their first growing season (Barneby 1964; Romspert and Burk 1979). Romspert and Burk (1979) found inflorescences present from December through at least April. The fruits are 2 to 3.5 cm (0.8 to 1.4 in) long and inflated. Phillips and Kennedy (2002) determined that the mean number of fruits per older plant was 171.5 compared with an estimated 5 fruits per plant for plants said to be in their first year. The seeds, among the largest known for any species of Astragalus (Bowers 1996), average 15 milligrams (mg) (less than 0.1 ounces (oz)) each in weight and are up to 4.7 millimeters (mm) (0.2 in) in length. There are 11 to 16 seeds per fruit (Barneby 1964). Astragalus lentiginosus var. borreganus, easily distinguished by its conspicuously broad leaflets, is the only similar taxon in the area. Seeds are dispersed by three basic mechanisms: (1) Falling from partially open fruits that remain on the plant; (2) falling from fruits that are blown across the sand; or (3) falling to the ground within the fruit (Barneby 1964; Bowers 1986; Phillips and Kennedy 2002). Wind dispersal of fruits across the surface of the dunes is likely the primary long-distance dispersal method for this plant. The fruits and seeds tend to accumulate on the leeward side of the dunes. These seeds may be found scattered on the sand surface at times. The number and location of standing plants may vary considerably from year to year due to a number of factors, including the amount, timing, and location of rainfall; temperature; soil conditions; and the extent and nature of the seed bank. For example, along the BLM transects, Willoughby (2001) reported that 942 plants were found in 1999 and only 86 plants in 2000, both low rainfall years compared to the wetter year 1998, when 5,064 plants were found. In 2001, 71,926 plants were reported (TOA 2001), but this single census does not provide any information on population trend. Plant mortality over the short term may also be considerable (Phillips and Kennedy 2002). In 1979, Astragalus magdalenae var. peirsonii was listed by the State of California as an endangered species under the California Endangered Species Act (CESA). On October 6, 1998, we listed A. magdalenae var. peirsonii as threatened (63 FR 53596). We made this determination based upon the best scientific and commercial information available at the time. As stated and documented in the final listing rule, this action was taken, in part, because of threats of increasing habitat loss from off-highway vehicle (OHV) use, associated recreational development, destruction of plants, and lack of protections afforded the plant on Federal lands. We did not designate critical habitat for A. magdalenae var. peirsonii at the time of listing because such action was not considered prudent at that time. [[Page 52786]] Finding We have reviewed the petition and literature cited in and provided with the petition and considered it with other information in our files. We have found that the petition presents substantial information indicating that delisting Astragalus magdalenae var. peirsonii may be warranted. The petitioners have suggested that A. magdalenae var. peirsonii is a species that exists, in many years, largely as a seed bank, with relatively few standing individuals above ground. At the time we listed A. magdalenae var. peirsonii as a threatened species (63 FR 53596), we did not have--and so could not consider--information about the extent of the seed bank of this species. Petitioners have provided information suggesting the species may have a healthy seed bank (Phillips and Kennedy 2002), even though standing plants are frequently rare. Surveys conducted since we listed this species in 1998 indicate that, in some years, probably in response to increased precipitation, the number of standing plants considerably increases (TOA 2001; Willoughby 2000, 2001). While significant questions remain about the extent and viability of the seed bank, and the contribution of the increased numbers of standing plants in 1998 (Willoughby 2000) and 2001 (TOA 2001) to the seed bank and the persistence of this species into the future, we consider these to be issues relevant to the listing determination and warranting further investigation. Accordingly, we believe it is appropriate to consider this information, and any other new information available about this species and the threats it may face, in a status review. Public Information Solicited When we make a finding that substantial information exists to indicate that listing or delisting a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on Astragalus magdalenae var. peirsonii. This includes information regarding historical and current distribution, biology and ecology, ongoing conservation measures for the species and its habitat, and threats to the species and its habitat. We also request information regarding the adequacy of existing regulatory mechanisms. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Tribes, the scientific community, industry or environmental entities, or any other interested parties concerning the status of A. magdalenae var. peirsonii. If you wish to comment, you may submit your comments and materials concerning this finding to the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Respondents may request that we withhold a respondent's identity, as allowable by law. If you wish us to withhold your name or address, you must state this request 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 above address. References Cited A complete list of all references cited in this finding is available, upon request, from the Carlsbad Fish and Wildlife Office (see ADDRESSES section). Authority The authority for this action is section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). Dated: August 29, 2003. Steve Williams, Director, Fish and Wildlife Service. [FR Doc. 03-22600 Filed 9-4-03; 8:45 am] BILLING CODE 4310-55-P