[Federal Register: January 22, 2004 (Volume 69, Number 14)]
[Proposed Rules]               
[Page 3094-3116]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI50

Endangered and Threatened Wildlife and Plants; Withdrawal of 
Proposed Rule To List Lepidium papilliferum (Slickspot Peppergrass) as 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the 
proposed rule, published in the Federal Register on July 15, 2002 (67 
FR 46441), to list Lepidium papilliferum (slickspot peppergrass) as 
endangered. This withdrawal is based on our conclusion that there is a 
lack of strong evidence of a negative population trend, and the 
conservation efforts contained in formalized plans have sufficient 
certainty that they will be implemented and will be effective such that 
the risk to the species is reduced to a level below the statutory 
definition of endangered or threatened. Therefore, we are withdrawing 
the proposed determination to list L. papilliferum as endangered.

ADDRESSES: The supporting record for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Snake River Fish and Wildlife Office, 1387 
S. Vinnell Way, Room 368, Boise, ID 83709.

FOR FURTHER INFORMATION CONTACT: Jeff Foss, Field Supervisor, Snake 
River Fish and Wildlife Office (see ADDRESSES section) (telephone 208/
378-5243; facsimile 208/378-5262).



Biological Overview and Survey History

    Lepidium papilliferum is a herbaceous annual or biennial plant that 
occurs exclusively in sagebrush-steppe (Artemisia spp.) ecosystem at 
approximately 2,200 feet (ft) (670 meters (m)) to 5,400 ft (1,645 m) 
elevation in southwestern Idaho. This species is found along the Snake 
River Plain and Owyhee Plateau in Ada, Canyon, Gem, Elmore, Payette, 
and Owyhee Counties, Idaho. Efforts have been made to determine whether 
or not suitable habitat occurs in eastern Oregon. The Bureau of Land 
Management (BLM) determined that the only suitable habitat available 
for the species in Oregon was in the Succor Creek area of the Vale 
District of the BLM. Surveys were conducted in the spring of 2003 in 
Succor Creek (J. Findley, BLM, botanist, in litt. 2003). Based on these 
surveys and a review of the habitat, it was determined that the species 
does not occur nor does suitable habitat exist for this species in 
Oregon (Findley, in litt. 2003). BLM has also conducted limited surveys 
for L. papilliferum to the east of the current known range of the 
species within the Shoshone and Burley Field Office areas that have 
yielded no observations of plants (BLM, in litt. 2000).

Plant Characteristics and Life History Traits

    Lepidium papilliferum was originally described as L. montanum var. 
papilliferum in 1900 by Louis Henderson. It was included as a distinct 
species in a recent review of taxa in the mustard family (Brassicaceae) 
(Rollins 1993). Rollins (1993) based his justification on difference in 
physical features between the two species such as: (1) L. papilliferum 
has trichomes (hairlike structures) occurring on the filaments of 
stamens (part of flower that produces pollen), but L. montanum does 
not; (2) all the leaves on L. papilliferum are pinnately divided, 
whereas L. montanum has some leaves that are not divided; (3) the shape 
of the silique (seed capsule) of L. papilliferum is different from that 
of L. montanum; and (4) the silique of L. papilliferum has no wings, or 
even vestiges of wings, at its apex (end of the capsule), unlike that 
of L. montanum (Moseley 1994). A recent review of the taxonomic status 
by R. Lichvar (in litt. 2002) concluded that, using classic 
morphological features and study of herbarium specimens, L. 
papilliferum has distinct features that may warrant species 
recognition. Also Meyer et al. (in press) concluded that the ecological 
and life history features of L. papilliferum are distinct from those of 
L. montanum and argued for the preservation of L. papilliferum as a 
distinct taxon.
    Lepidium papilliferum is a taprooted annual or biennial plant that 
reaches 4 to 12 inches (in) (10 to 30 centimeters (cm)) in height. The 
species is a monocarpic plant that displays two life cycles. The annual 
life form matures, reproduces by setting seed, and dies in one growing 
season, whereas the biennial life form initiates growth in the first 
year, and does not produce seed and die until the second year. Leaves 
and stems are pubescent (covered with fine, soft hairs), and the 
divided leaves have linear segments (Moseley 1994). Numerous small, 
white 4-petalled flowers terminate the branches. This species produces 
small, orbicular (spherical) fruits, which are approximately 0.1 in (3 
millimeters) long.
    Lepidium papilliferum is mainly visited and pollinated by bees 
(Anthophoridae, Apidae, Colletidae, Chrysididae, Formicidae, 
Halictidae, Sphecidae, and Vespidae families), flies (Bombyliidae, 
Syrphidae, and Tachinidae families), and some beetle species 
(Cerambycidae, Chrysomelidae, Dermestidae and Melyridae families). 
Limited visitation has also been observed by butterflies (Gelechiidae 
family) and bugs (Miridae family) (Robertson and Klemish 2003). Bees 
appear to be the most significant pollinators of L. papilliferum, with 
the highest pollen loads of all species observed (Robertson and Klemish 
2003). Insect visitations have been shown to be essential for L. 
papilliferum pollination and fruit production (Robertson and Klemish 
2003). The possibility of wind-mediated self- or cross-pollination is 
remote given that the structure of L. papilliferum flowers and pollen 
grains are not consistent with those of wind pollinated species 
(Robertson and Klemish 2003).
    The primary seed dispersal mechanism for Lepidium papilliferum has 
not been definitively identified. Belnap (in litt. 2002) stated that, 
``dispersal mechanisms cannot be established based on size, weight, or 
appendages of seeds, and it is not known how readily this plant can 
colonize new habitats.'' Animal transport, water, and wind may play a 
minor role, but the seed lacks structures to facilitate dispersal by 
animals, wind, or water (Moseley 1994). Due to the high winds at 
Juniper Butte and the weight of L. papilliferum seeds, it has been 
hypothesized that L. papilliferum is dispersed by wind (U.S. Air Force, 
in litt. 2002b) (Air Force). The weight of 100 L. papilliferum seeds 
ranges from 0.035 to 0.05 grams (Air Force, in litt. 2002b).
    Like many short-lived plants growing in arid environments, the 
above-ground number of Lepidium papilliferum individuals at any one 
site can naturally fluctuate widely from one year to the next, 
depending primarily on seasonal precipitation patterns (Mancuso and

[[Page 3095]]

Moseley 1998; Mancuso 2001; Meyer et al., in press). Above-ground 
plants represent only a portion of the population, with the seed bank 
(a reserve of dormant seeds, generally found in the soil) contributing 
the remainder, and apparently the majority, in many years (Mancuso and 
Moseley 1998). A seed bank includes all of the seeds in a population 
and generally covers a larger area than the extent of observable plants 
seen in a given year (Given 1994). The number and location of standing 
plants (the observable plants) in a population varies annually due to a 
number of factors, including the amount and timing of rainfall, 
temperature, soil conditions, and the extent and nature of the seed 
bank. Therefore, estimates of above-ground plants do not reflect actual 
population levels because the majority of the population exists in the 
seed bank (Moseley 1994). The extent of seed bank reserves is variable 
from occurrence to occurrence, and large fluctuations in the number of 
standing plants at a given site may occur from one year to the next. 
Depending on individual plant vigor, which is largely determined by the 
amount and timing of annual precipitation, and the effectiveness of 
pollination, dozens, if not thousands of seeds could be produced 
(Quinney 1998; Meyer et al. in press; M. Mancuso, Idaho Conservation 
Data Center (ICDC), pers. comm. 2003). Individual biennial plants 
generally produce a much greater number of seeds than individual annual 
plants, depending on the site (Robertson 2003; Meyer et al. in press). 
Because annual plants typically are more numerous than biennial plants, 
the total amount of seed produced by all successfully reproducing 
biennial plants in any given year is low in relation to the total 
amount of seed produced by all annual plants in the same year. Seeds 
produced in a given year may remain viable in the soil for up to 12 
years (D. Quinney, Idaho Army National Guard (IDARNG), in litt. 2002; 
Meyer et al., in press).
    Meyer et al. (in press) concluded that Lepidium papilliferum cannot 
succeed with an annual life history strategy within its variable 
habitat without a persistent seed bank. The majority of L. papilliferum 
seeds that are contributed to the seed bank in any given year are 
produced by annual plants rather than biennial plants because the 
survival of biennial plants through the dry summer conditions is low 
(Meyer et al., in press). Generally, seeds produced in a given year do 
not germinate that same year, and are dormant for at least a full year 
before any germination takes place. A constant proportion 
(approximately 6 percent) of seeds produced from a given preceding year 
germinate annually. Depending on the timing and amount of annual 
precipitation, these young plants may or may not survive to flower and 
produce seed (Meyer et al., in press). Population modeling of 
stochastic (naturally and randomly occurring) events for L. 
papilliferum demonstrates the importance of years with above-average 
precipitation in restocking the seed bank. The model predicts that if 
yearly annual precipitation over a 100-year period meets or is below 
average precipitation levels, the population would not persist (Meyer 
et al., unpublished manuscript). Two research projects that further 
examine L. papilliferum seed banks and slickspot soils are currently 
being pursued by IDARNG and Air Force (Meyer et al. in litt. 2002, Air 
Force 2002c).
    Research on other species (as well as theoretical models) has shown 
that species exhibiting wide population fluctuations, such as L. 
papilliferum, are more at risk of extinction than those with stable 
populations (S. Novak, Boise State University, in litt. 2002). Such 
species that experience wide population fluctuations can be entirely 
lost due to the process of demographic stochasticity (chance events 
that lead to the loss of individuals) in years when their numbers are 
at low levels. Seed banks are adaptations for survival in a ``risky 
environment,'' as they buffer a species from stochastic impacts such as 
lack of soil moisture, which could result in no seed production for a 
population in a given year (Baskin and Baskin 2001). The L. 
papilliferum seed bank and seed viability of up to 12 years are 
examples of such adaptations (Meyer et al., in press).

Habitat Features

    Associated native species in the sagebrush-steppe habitat include 
Artemisia tridentata ssp. wyomingensis (Wyoming big sagebrush), A. 
tridentata ssp. tridentata (basin big sagebrush), Agropyron spicatum 
(bluebunch wheatgrass), Stipa thurberiana (Thurber's needlegrass), Poa 
secunda (Sandberg's bluegrass), and Sitanion hystrix (bottlebrush 
squirreltail). Nonnative species frequently associated with L. 
papilliferum include Bromus tectorum (cheatgrass), Sisymbrium 
altissimum (tumble mustard), Ranunculus testiculatus (bur buttercup), 
Lepidium perfoliatum (clasping pepperweed), Agropyron cristatum 
(crested wheatgrass), and Kochia prostrata (forage kochia) (Moseley 
1994; Mancuso and Moseley 1998; Meyer et al., in press).
    Lepidium papilliferum is associated with small areas known as 
slickspots which are interspersed within the larger sagebrush-steppe 
habitat. Slickspots are also called mini-playas or natric sites (sites 
containing a subsurface horizon, characterized by a sharp increase in 
clay, columnar or prismatic structure, and high alkalinity). Slickspots 
are small, natural soil inclusions that exhibit unique physical 
characteristics in relation to the surrounding matrix of non-natric 
soils. These sparsely vegetated microsites are very distinct from the 
surrounding shrubland vegetation; slickspots are characterized by a 
near-surface distribution of soluble sodium salts, thin vesicular 
(small cavity) surface crusts, and shallow well-developed argillic 
(relating to clay mineral) horizons or layers (Fisher et al. 1996) that 
are impermeable when wet (A. Harkness, Natural Resource Conservation 
Service (NRCS), pers. comm. 2003).
    Recent studies in 2002 and 2003 by the IDARNG and NRCS conducted at 
the Orchard Training Area in southwestern Idaho, have shown that 
slickspots are distinguishable from the surrounding soils by higher 
percent clay content below the first 0.8 in (2 cm) of soil. For 
example, at one site the percent of clay changed from 5.0 percent at 0 
to 0.8 in (0 to 2 cm) (the first horizon) to 27.8 percent at 0.8 to 5.5 
in (2 to 14 cm) (second horizon) (National Soil Survey Laboratory, in 
litt. 2003). The large shift in clay content is indicative of heavy 
soils, and the change from the first horizon to the second is an 
indication of the presence of a clay pan and a change in permeability 
(Harkness, pers. comm. 2003). All three horizons sampled also indicated 
a high level of sodium ranging from 10 to 31 percent. Soils with 
greater than 15 percent sodium are considered natric soils (Harkness, 

pers. comm. 2003). Soils in the surrounding environment had a clay 
content of 7.4 percent at a depth of 0 to 1.6 in (0 to 4 cm) in the 
first horizon, and a percent sodium of 2 (National Soil Survey 
Laboratory, in litt. 2003). In the winter, spring, and after 
thundershowers, slickspots often contain some surface water (Fisher et 
al. 1996; J. Klott, BLM, pers. comm. 2000). According to NRCS 
(unpublished report, 2001), the drainage class of slickspots is ``well-
drained with frequent ponding in winter and early spring.'' Slickspots 
are further described in this soil survey as small, low areas that stay 
moist a few weeks longer than the surrounding soils. As the soil 
surface dries, the slickspot argillic soil layer contracts, creating 
cracks that

[[Page 3096]]

allow roots of plants such as L. papilliferum to extend deep into the 
underlying soil (A. Harkness, pers. comm. 2003). Compared to 
surrounding habitat areas, slickspots also have reduced levels of 
organic matter and nutrients, due to the lower biomass production 
(Fisher et al. 1996). The majority of slickspots range in size from 
less than 10 square feet (ft\2\) (1 square meter (m\2\)) to about 110 
ft\2\ (10 m\2\) and occur within communities dominated by other plants. 
Some slickspot complexes may range up to 1,076 ft\2\ (100 m\2\) 
(Mancuso et al. 1998).
    Rangewide, Lepidium papilliferum is associated with slickspots that 
cover a relatively small cumulative area within the larger sagebrush-
steppe ecosystem. For example, it is estimated that only 1 to 4 percent 
of slickspots are occupied by above-ground L. papilliferum plants in 
the Inside Desert (an interior portion of the Bruneau Desert) area of 
southwest Idaho (Popovich 2002). A slickspot is considered to be 
occupied if above-ground L. papilliferum plants are observed during the 
year of survey. Slickspots that do not contain above-ground plants 
during surveys may contain viable seeds; therefore, several years of 
surveys may be necessary to determine if slickspots are occupied. L. 
papilliferum has occasionally been documented as occurring on disturbed 
soils such as those along graded roadsides or adjacent to animal 
burrows. These appear to be uncommon situations, and the vast majority 
of plants documented over 10 years of surveys and monitoring for this 
species are associated with slickspots. For example, in 2002, a 
complete census of an 11,070-acre (ac) (4,480-hectare (ha)) area 
recorded approximately 56,500 slickspots (Air Force, in litt. 2003), of 
which approximately 2,450 (about 4 percent) were occupied by L. 
papilliferum plants (Bashore, pers. comm. 2003). Of the approximately 
11,300 L. papilliferum plants documented during the survey effort, only 
11 plants were documented outside of slickspots (Air Force 2002a). 
Similarly, in 3 years of annual surveys, L. papilliferum was only 
detected within 4 slickspots in 2002 (63 plants), and within 2 
slickspots in 2003 (36 plants) along the same 39 miles (62.7 
kilometers) of road rights of way in the Inside Desert subsequent to 
widening and improvement of the road (CH2MHill 2003). No plants were 
observed during the 2001 survey effort. The restricted and scattered 
distribution of L. papilliferum is likely a product of (a) the limited 
availability of these extremely localized, specific slickspot soil 
conditions, (b) the fragmentation of the sagebrush-steppe ecosystem in 
southwestern Idaho from agricultural and urban development, and (c) the 
conversion to annual, nonnative grasslands.

Documented Occurrences

    An ``occurrence'' or ``element occurrence'' as defined by the ICDC 
represents a specific geographical location containing a species (or 
some other ``element'') of conservation concern. It is the standard 
database record used throughout the Natural Heritage Program/
Conservation Data Center network (ICDC 2002), of which ICDC is part 
(Mancuso and Moseley 1998). Occurrences of Lepidium papilliferum are 
comprised of one to many slickspot microsites documented to contain the 
plant. The area delineated by an occurrence contains slickspots known 
to be occupied by L. papilliferum interspersed within a matrix of 
unoccupied sagebrush-steppe habitat. Therefore, an occurrence includes 
slickspot habitat directly occupied by L. papilliferum, as well as part 
of the surrounding landscape not directly occupied. In many cases, this 
leads to only a small fraction of an occurrence area being directly 
occupied by L. papilliferum.
    Occurrence boundaries are based on estimates delineating the extent 
of occupied Lepidium papilliferum habitat in an area. Occurrences may 
be depicted as a point (small occurrences comprised of only one or a 
few clustered occupied slickspots); a single polygon (occurrences 
comprised of occupied slickspots scattered over a more or less 
contiguous area); or of multiple polygons (occurrences comprised of two 
or more discrete areas having occupied slickspots). Occurrences range 
in size from less than 1 ac (0.40 ha) to 8,970 ac (3,630 ha) based on 
information provided by the ICDC (2003). The total estimated area of 
all extant occurrences as of February 2003 was approximately 20,500 ac 
(8,300 ha). Of this estimated total area, approximately 91 percent 
(18,655 ac (7,550 ha)) occurred on Federal land; 3 percent (615 ac (249 
ha)) on private land; and 6 percent (1,230 ac (498 ha)) on State land.
    The largest occurrence is located on the Air Force's Juniper Butte 
Training Range. In 1998, the Air Force acquired BLM land to establish 
the Juniper Butte ETR, under the Juniper Butte Range Withdrawal Act (PL 
105-261), which provided for the withdrawal and management of this area 
by the Air Force for military activities (Air Force 2000). Juniper 
Butte ETR is approximately 12,000 ac (4,856 ha) in size, and the 
landscape is a mosaic of sagebrush-steppe and nonnative plant 
communities, some of which has been impacted by past wildfire and 
subsequent conversion from the native sagebrush-perennial grassland 
vegetation to nonnative perennial or annual grasslands (Air Force 
2000). Slickspot habitat and Lepidium papilliferum plants have been 
observed scattered throughout the Juniper Butte ETR, and this single 
large occurrence constitutes 44 percent of the total known L. 
papilliferum occurrence area (ICDC 2003). Due to its expansive area and 
large numbers of plants, this occurrence has high conservation value 
for L. papilliferum. The value of this occurrence could be further 
enhanced through restoration of sagebrush-steppe habitat within the 
area. A very thorough field inventory within the Juniper Butte Training 
Range in 2002 found that of the 11,070 ac (4,480) surveyed, 
approximately 1 percent (109 ac (44.1 ha)) consisted of slickspot 
microsite habitat; however, only 4 percent of this slickspot habitat 
was occupied by L. papilliferum (Air Force 2002a). This makes the total 
amount of occupied slickspot habitat within this large occurrence 
approximately 4 ac (1.6 ha) at the time it was surveyed.
    The ICDC database contains a total of 93 Lepidium papilliferum 
occurrences. Of this total, 75 are extant (exist), 5 are historical, 
and 13 are considered extirpated (ICDC 2003). Historical occurrences 
are those based on collections made between 1911 and 1974, but which 
have not been relocated in more recent years. In most cases, the 
collections have vague location information, making their relocation 
problematic. The historical category has an implied expectation that 
the occurrences may be relocated in the future. Occurrences are 
considered extirpated if the native vegetation has been converted to 
cropland or urban/commercial uses, or the habitat is so severely 
modified that it is no longer capable of supporting L. papilliferum 
(ICDC 2003). As of February 2003, and since publication of the proposed 
rule in (67 FR 46441; July 15, 2002), the number of extant occurrences 
has increased by 5 (from 70 to 75), as a result of recent field survey 
efforts. The five new L. papilliferum occurrences total approximately 
50 ac (20 ha). New L. papilliferum occurrences have been discovered in 
the Inside Desert on BLM lands during survey efforts in 2003 (Vision 
Air Research 2003). The new L. papilliferum locations identified during 
the 2003 field season have not yet been incorporated into the ICDC 
database at

[[Page 3097]]

the time of publication of this rule, and so are not reflected in the 
discussion of L. papilliferum occurrences or area.
    Forty-nine of the 75 extant occurrences (65 percent) are located 
completely on Federal land managed by the BLM or Air Force, and 6 occur 
completely on private land (8 percent). Three occurrences (4 percent) 
are located completely on either county or city lands. The 17 remaining 
occurrences (23 percent) encompass areas of multiple land ownership, 
representing a mixture of Federal, State, and/or private lands.

Ranking of Occurrence Quality

    Sixty of the 75 extant occurrences of Lepidium papilliferum have 
been ranked by ICDC using 4 definitions, A through D, with A 
representing sites with the greatest number of above-ground plants, 
best quality habitat, and highest probability of long-term 
survivability (Moseley 1994). In general, the number of L. papilliferum 
individuals at each extant occurrence can range from 1 to greater than 
10,000 (M. Mancuso, pers. comm. 2003a; ICDC 2003); however, the 
majority (42) of the 60 ranked extant occurrences contain less than 200 
individuals. The total area of all ranked occurrences is approximately 
20,131 ac (8,147 ha). The remaining 15 of the 75 extant occurrences are 
not yet ranked by ICDC due to a lack of information on habitat 
characteristics (S. Cooke, pers. comm. 2003). The total area of the 
unranked occurrences is approximately 366 ac (148 ha), with an average 
size of approximately 24 ac (10 ha) (ICDC 2003).
    While we recognize the inherent limitations of this occurrence 
quality ranking methodology as not being quantitative and difficult to 
replicate, we believe it to represent the best available tool in which 
to examine and rank Lepidium papilliferum occurrences and habitat 
quality. As a result, we have used it as a tool in our analysis for 
this final determination.
    ``A''-ranked occurrences, as defined by ICDC, ``consist of those 
with large population numbers occurring in high-quality sagebrush-
steppe communities. The occurrences also tend to be large in area, 
consisting of many slickspots spread over a contiguous area. `A'-ranked 
populations generally consist of populations with greater than 1,000 
above-ground individuals in sagebrush stands consisting mostly of 
native perennials; these sites generally have not burned and do not 
support exotic annuals'' (Moseley 1994). Of the 60 extant ranked 
occurrences, 7 (12 percent) are considered ``high-quality'' or ``A''-
ranked. The 7 ``A''-ranked occurrences are estimated to encompass 
approximately 6,596 ac (2,669 ha), which is 33 percent of the total 
estimated acreage of all ranked occurrences. Approximately 4,430 ac 
(1,793 ha), or 67 percent, of this ``A''-ranked area is located within 
2 occurrences on the IDARNG's Orchard Training Area (OTA) (ICDC 2003).
    ``B''-ranked occurrences, as defined by ICDC, range from ``about 
400 to 2,000 individuals,'' however, the ``average'' occurrence of this 
rank consists of several hundred plants in good-to high-quality sites. 
``B''-ranked occurrences can include sites containing 400 to 600 
individual plants (low end of the range) occurring in high-quality 
habitat and/or thousands of individuals (high end of the range) that 
occur in fair-to low-quality sites (burned-over cheatgrass stands or 
crested wheatgrass seedings) (Moseley 1994). Nine (15 percent) of the 
60 ranked extant occurrences are ``B''-ranked. The 9 ``B''-ranked 
occurrences total approximately 10,683 ac (4,323 ha), or 53 percent of 
the total area of all ranked occurrences. Approximately 8,970 ac (3,630 
ha) of this 10,683 ac area is located within one large occurrence on 
the Air Force's Juniper Butte Training Range. This single large 
occurrence was assigned a ``B''-ranking (the proposed rule erroneously 
identified this as a ``C''-ranking) because much of the habitat within 
this occurrence has been degraded by wildfires and subsequent seedings 
of crested and intermediate wheatgrass prior to the land being 
withdrawn for Air Force management (Air Force 2002b; ICDC 2003). The 
average size of the ``B''-ranked occurrences is approximately 1,187 ac 
(480 ha).
    ``C''-ranked occurrences, as defined by ICDC, ``consist of as few 
as 25 to greater than 1,000 individuals.'' The ``average'' ``C''-ranked 
occurrence consists of 100 to 200 individuals in fair-to low-quality 
habitat. The occurrences with smaller numbers of above-ground plants 
occur in large tracts of high-quality habitat, while occurrences at the 
high end of the range of the numbers of above-ground plants are in 
severely disturbed habitats or those that are adjacent to recent 
developments and are not expected to remain viable (Moseley 1994). Of 
the 60 extant ranked occurrences, 21 (35 percent) are ``C''-ranked. The 
21 ``C''-ranked occurrences total approximately 731 ac (296 ha), or 3 
percent of the total area of all ranked occurrences. The average size 
of the 21 ``C''-ranked occurrences is approximately 35 ac (14 ha) (ICDC 
    ``D''-ranked occurrences, as defined by ICDC, ``consist of 
generally less than 50 individuals (often less than 25) occurring as 
isolated populations in degraded habitats,'' and are not expected to 
remain viable (Moseley 1994). Eighteen (30 percent) of the 60 extant 
ranked occurrences are ``D''-ranked. The 18 ``D''-ranked occurrences 
total approximately 1,890 ac (765 ha), or 9 percent of the acreage of 
all ranked occurrences, with an average size of approximately 105 ac 
(43 ha). The average size of the ``D''-ranked occurrences is biased by 
a single 1,495-ac (605-ha) occurrence. The average size of the ``D''-
ranked occurrences is reduced to approximately 23 ac (9 ha) if this 
single 1,495-ac (605-ha) occurrence is excluded from the calculation.
    Five of the 60 extant ranked occurrences have been categorized by 
ICDC as intermediate between the 4 defined ranks. Four (7 percent) are 
identified as ``B/C''-ranked, and total approximately 208 ac (84 ha), 
or 1 percent of the area of all ranked occurrences. The 4 ``B/C''-
ranked occurrences have an average size of approximately 52 ac (21 ha). 
The remaining ranked occurrence is identified as ``C/D''-ranked. The 
single ``C/D''-ranked occurrence totals approximately 23 ac (9 ha), and 
constitutes 1 percent of the area of all ranked occurrences (ICDC 
2003). Given the definition of rankings by ICDC, approximately 27 
percent of all ranked occurrences or approximately 86 percent of the 
estimated area of all ranked occurrences are ranked as A or B, 
populations considered to have a high to moderate probability of long-
term survival.
    Over the period from 1994 through the 2002 field season, 13 of the 
extant Lepidium papilliferum occurrences have decreased in quality. 
Because of the effects of habitat degradation and fragmentation, 1 
declined to a ``B'' rank and 12 declined to a ``C'' or ``D'' rank (ICDC 
2003). The total area of occurrences documented as declining in rank is 
approximately 3,278 ac (1,326 ha), 16 percent of the total area of all 
ranked occurrences. Decreases in rank as documented from evaluation of 
ICDC data reflect additional impacts to the habitat quality or habitat 
defensibility beyond those in the original ranking of the occurrence 
(ICDC 2003).
    During the same period, 8 (10 percent of) documented L. 
papilliferum occurrences have increased in quality because of the 
acquisition of better information from subsequent surveys since their 
original 1994 ranking: four increased to an ``A'' rank, three

[[Page 3098]]

increased to a ``B'' rank, and one increased to a ``C'' rank (ICDC 
2003). The total area of occurrences documented as increasing in rank 
is approximately 3,251 ac (1,316 ha), 16 percent of the total area of 
all ranked occurrences. Increases in rank as documented from evaluation 
of ICDC data are attributed to expansion of known occurrences (greater 
area documented as containing plants, or greater numbers of plants) due 
to increased survey effort and do not reflect an improvement in the 
habitat quality or defensibility (ICDC 2003).
    Some disagreement as to the accuracy of some L. papilliferum 
locations, area extent, and rankings within the ICDC database has been 
raised. ICDC has indicated that review and update of the ICDC database 
for L. papilliferum is a priority for 2004 section 6 funding (ICDC, in. 
litt. 2003). In any event, the current ICDC database constitutes the 
best available scientific information on L. papilliferum location and 
occurrence quality.

Habitat Integrity Index Monitoring of Occurrences

    To provide a consistent monitoring methodology for use by 
management agencies, the ICDC in 1997 initiated a collaborative effort 
that included participation by the IDARNG, BLM, Air Force, and the 
Service. The result of this effort was development of a habitat 
integrity index (HII) for use in assessing and monitoring occupied 
Lepidium papilliferum habitat in southwestern Idaho (Mancuso and 
Moseley 1998). Index methodology is commonly used in ecological 
monitoring, and the HII protocol has been used since 1998 by ICDC, BLM, 
Air Force, and IDARNG to collect data on slickspot microsites and 
surrounding habitats. Effective monitoring of an annual plant species 
with a long-lived seed bank is often difficult, so use of a monitoring 
method that focuses on habitat condition may be more successful than 
monitoring of the above-ground expression of the seed bank (Elzinga et 
al. 1998).
    The HII data represents the best available site-specific data for 
the occurrences of L. papilliferum. The HII data has its limitations, 
including a relatively short survey period of 5-years, not all 
occurrences are sampled each year, and the qualitative or subjective 
nature of some of its determinations. HII provides valuable information 
about occurrences of L. papilliferum and its habitat, but it was not 
designed to be a scientifically rigorous methodology that lends itself 
to statistical analysis.
    The abundance of above-ground plants may fluctuate significantly 
from year to year due to site-specific microclimate conditions, 
especially precipitation. HII was developed to assess the overall 
habitat condition that includes those attributes associated with the 
slickspot microsite and the sagebrush-steppe habitat, and to assess the 
prospects that an occurrence will persist over time, including factors 
affecting the viability and defensibility (degree of protection from 
human-caused impacts) of the occurrence (Mancuso 2001). This HII 
monitoring protocol consists of four components: (1) Sampling along a 
transect to acquire specific slickspot microsite and adjacent habitat 
information; (2) vegetation plot sampling; (3) photo points; and (4) an 
Occurrence Viability scorecard.
    Monitoring of fixed transects using HII has taken place annually 
since 1998. A core set of 38 transects were monitored annually over the 
period 1998-2001 with some years including monitoring of transects 
beyond the core set of 38. HII results illustrate how the number of 
Lepidium papilliferum counted at any one site can fluctuate from year 
to year. For example, in 1998, approximately 16,000 L. papilliferum 
plants were counted along 45 transects situated within 40 occurrences 
monitored by Mancuso (2000). In 1999, only 3,060 L. papilliferum plants 
were counted along these same transects and 2 additional transects. 
Mancuso (2001) continued his monitoring of these transects in 2000, 
documenting approximately 7,100 L. papilliferum plants. In 2001, 
approximately 4,045 L. papilliferum plants were observed on 48 
transects, including core set of 38 occurrences (Mancuso 2002). The 
core set of 38 occurrences monitored using HII represent 51 percent of 
the 75 extant occurrences and 94 percent (approximately 19,243 ac 
(7,787 ha)) of the total known area occupied by L. papilliferum. In 
2002, approximately 372 L. papilliferum were counted along 27 transects 
situated within 21 occurrences, representing the lowest cumulative 
total recorded for this set of transects in 5 years (Mancuso 2003).
    In summary, ICDC HII monitoring results from 1998 through 2001 
revealed there has not been a dramatic, rapid, widespread decline in 
the condition of slickspot peppergrass habitat (Mancuso 2002). It also 
shows habitat improvement is limited to a few sites. The pattern the 
past four years has been a slow, but steady decline, affecting a few 
occurrences each year. For example, after the 2001 monitoring season 
conditions did not seem too much different or worse than the 2000 
monitoring season (Mancuso 2002). HII monitoring results for the 2002 
field season revealed no transects with an overall improving trend, two 
transects showed decline, and the remaining 15 transects were either 
stable or showed no clear upward or downward trend (Mancuso 2003).

Previous Federal Action

    Federal Government actions for the plant began in 1990 when this 
species (as Lepidium montanum var. papilliferum) was designated as a 
category 2 candidate in the February 21, 1990 (55 FR 6184), Notice of 
Review. Category 2 candidates were those for which information in our 
possession indicated that proposing to list as endangered or threatened 
was possibly appropriate, but sufficient data to support proposed rules 
were not currently available. This taxon was retained as a category 2 
candidate in the September 30, 1993 (58 FR 51144), Notice of Review. 
Upon publication of the February 28, 1996, Notice of Review (61 FR 
7596), we ceased using candidate category designations. Lepidium 
papilliferum was not included as a candidate species in this notice. We 
reinstated the species as a candidate species, with a listing priority 
number of 2, in the October 25, 1999, Notice of Review (64 FR 57534). 
The species was again listed as a candidate in the October 30, 2001, 
Notice of Review (66 FR 54808).
    On April 9, 2001, we received a petition dated April 4, 2001, from 
the Committee for Idaho's High Desert, the Western Watersheds Project, 
the Wilderness Society, and the Idaho Conservation League (Petitioners) 
requesting emergency listing of Lepidium papilliferum as threatened or 
endangered. The petition included information on threats to the 
species, including: competition with nonnative annual and perennial 
vegetation, incompatible livestock grazing practices, incompatible 
herbicide application, inbreeding depression, and fire rehabilitation. 
We responded to the Petitioners with a letter dated April 27, 2001, 
stating that the species was already identified as a candidate, and we 
do not publish petition findings separately on candidate species 
because we have already determined that their listing is warranted 
(Service, in litt. 2001). We also stated that our initial review of 
their petition did not indicate an emergency action was warranted.
    On November 6, 2001, the Petitioners filed a complaint for our 
failure to emergency list Lepidium papilliferum as threatened or 
endangered, and our failure to proceed with a proposed rule to list L. 
papilliferum as endangered or threatened on a nonemergency basis

[[Page 3099]]

(Committee for Idaho's High Desert and Western Watersheds Project v. 
Anne Badgley, et al. (Case No. CV 01-1641-AS)). On April 2, 2002, based 
on a settlement agreement with the Petitioners, the U.S. District Court 
for the District of Oregon signed an order requiring us to submit for 
publication in the Federal Register a proposal to list the species by 
July 15, 2002, and a final determination by July 15, 2003.
    On July 15, 2002, we published a proposed rule to list Lepidium 
papilliferum as an endangered species (67 FR 46441). The initial 60-day 
public comment period closed on September 13, 2002. Legal notices of 
the proposed rule were published in the Mountain Home News in Elmore 
County on July 17, 2002, The Idaho Statesman in Ada County on July 18, 
2002, and The Owyhee Avalanche in Owyhee County on July 24, 2002. These 
published legal notices invited the public to comment and to attend a 
public hearing in Boise, Idaho, on August 28, 2002. On July 22, 2002, 
we received a congressional request to have additional public hearings. 
Following that request, we published additional notices of the proposed 
rule, comment period, and modified hearing schedule in The Owyhee 
Avalanche, the Independent-Enterprise in Payette County, and the Emmett 
Messenger-Index in Gem County on August 14, 2002. On August 29, 2002, 
we held a public hearing on the proposal in Grand View, Idaho. On 
September 25, 2002, we reopened the comment period for an additional 60 
days to allow additional time for all interested parties to submit 
written comments on the proposal (67 FR 60206). The second comment 
period closed on November 25, 2002.
    After review of public comments and additional information received 
during the second comment period, we determined there was substantial 
disagreement regarding the sufficiency or accuracy of the available 
data relevant to the proposed listing rule, making it necessary to 
solicit and evaluate additional data to address this disagreement. On 
July 18, 2003, we published a finding (68 FR 42666) announcing a 6-
month extension of the deadline for a final listing determination for 
L. papilliferum. In accordance with section 4(b)(6)(B)(i) of the Act, 
the 6-month extension of the deadline for our final determination on 
whether to list L. papilliferum was used to solicit and evaluate 
additional data to further address the sufficiency or accuracy of the 
available data. A third public comment period was opened for 30 days on 
July 18, 2003, and closed on August 18, 2003. During the 6-month 
extension period, we updated the best available scientific information 
on L. papilliferum, using information received during the two 60-day 
comment periods, and the subsequent 30-day comment period associated 
with the extension. We also employed additional techniques (e.g., 
science panel review) for organizing the data for further analysis and 
evaluation of the status of the species and the risks it faces.
    In addition to soliciting data and conducting further analysis to 
address the disagreement in the sufficiency and accuracy of the 
available data, we worked with the Air Force and IDARNG to update their 
Integrated Natural Resource Management Plans (INRMPs) and to further 
address the conservation needs of L. papilliferum. We reviewed and 
commented on the INRMPs and we also provided technical assistance on 
policy and science to several partner agencies and affected private 
individuals in their development of the Candidate Conservation 
Agreement for Slickspot Peppergrass (Lepidium papilliferum) (Idaho 
Office of Species Conservation 2003) (CCA). The CCA was developed 
between July and December 2003 by the Idaho Governor's Office of 
Species Conservation (OSC), the Idaho Department of Agriculture, the 
Idaho Department of Fish and Game, the Idaho Department of Lands, the 
IDARNG, the BLM, and several private property owners who hold grazing 
permits on BLM-managed and maintained lands, collectively referred to 
as Cooperating Parties. The purpose of the CCA is to join the BLM, 
State of Idaho, and IDARNG with nongovernmental cooperators to 
implement conservation measures for slickspot peppergrass. The goal of 
the CCA is to conserve the species and its habitat while protecting the 
long-term sustainability of predictable levels of land use in southern 
Idaho. We attended meetings and provided technical assistance and 
guidance in the development of the CCA.
    On October 30, 2003, we published a notice announcing the 
availability of, and soliciting review and comment on the draft CCA and 
our document, ``Best Available Information on Lepidium papilliferum'' 
(68 FR 61821). Both documents contained information we planned to 
utilize in making a final listing determination for the species. This 
14-day public comment period closed November 14, 2003. Comments 
received on both documents were received and taken into consideration 
in the development of this final determination. Further, comments 
received on the CCA were made available to the Idaho Governor's Office 
of Species Conservation (OSC) and their Cooperating Parties so that 
they could evaluate and incorporate them into the final CCA as 

Summary of Comments and Recommendations

Summary of Public Comments on Proposed Rule

    Following the publication of the proposed rule on July 15, 2002 (67 
FR 46441), we contacted and provided copies of the proposal to Federal, 
State, and local agencies, county governments, elected officials, 
scientific organizations, and other interested parties and asked that 
they comment. We requested comments and any additional data and 
information that might assist us in making a final decision on our 
proposal to list Lepidium papilliferum. During 120 nonconsecutive days 
of open comment periods in 2002, we received input from 39 commenters. 
Six commenters submitted duplicate comments, either by submitting a 
written comment and also testifying at a hearing, or by testifying at 
two separate hearings. Each of these duplicate comments was tallied 
only once. Of the 39 unique comments, 26 opposed the listing action, 9 
were supportive, and 4 indicated no preference. Comments were received 
from Federal, State, and county agencies and government offices, 
industry and environmental organizations, researchers, and private 
    Another public comment period was opened for 30 days from July 18, 
2003, to August 18, 2003, during the 6-month extension of the deadline 
for our final determination (68 FR 42666). Due to substantial 
disagreement among interested parties over the sufficiency or accuracy 
of our available data on L. papilliferum, we solicited comments on 
biological, commercial trade, or other relevant data concerning any 
threat (or lack thereof) to this species; the location of any 
additional populations; additional information concerning the range, 
distribution, and population size of the species; and current or 
planned activities within the range of the species and the possible 
impacts on the species.
    We prepared a summary document entitled, ``Primary Issues of 
Disagreement Regarding the Status and Threats to Lepidium 
papilliferum,'' and distributed it to 25 experts identified by the 
Service, BLM, Air Force, and OSC including the 12 peer reviewers 
discussed herein who were asked for comments on the proposed rule and 
made it available to the public on our website. The 25 experts were 

[[Page 3100]]

upon our request to the State of Idaho, BLM, and Air Force and included 
the peer reviewers for the proposed rule of July 2002. The purpose of 
this document was to provide the public with information we had about 
the issues of scientific disagreement that were identified and to 
request that reviewers provide us with any additional data, 
information, and comments relevant to the issues, especially 
information pertaining to potential threats to the species and their 
relationship to the status, distribution, and likely survival of the 

Peer Review

    In accordance with our July 1, 1994, Interagency Cooperative Policy 
on Peer Review (59 FR 34270), we requested the expert opinions of 12 
independent specialists regarding pertinent scientific or commercial 
data and assumptions relating to supportive biological and ecological 
information in the proposed rule. The purpose of such a review is to 
ensure that the listing decision is based on scientifically sound data, 
assumptions, and analyses, including input of appropriate experts and 
    The 12 reviewers we requested to review the proposed rule were 
selected on the basis of their expertise on Lepidium papilliferum 
natural history and ecology. We requested that they review the proposed 
rule and provide any relevant scientific data relating to taxonomy, 
distribution, population status, or the supporting biological and 
ecological data used in our analyses of the listing factors. Five of 
the 12 scientific reviewers provided us comments during the initial 
peer review process. All five provided information meant to correct, 
clarify, or support statements contained in the proposed rule. We have 
incorporated their comments into the final determination, as 
    Some of the comments received during the public comment periods 
suggested that the proposed rule inappropriately extrapolated beyond 
the limited data available and thus drew unsupported, possibly 
erroneous conclusions about the effects of various environmental 
factors. Additionally, the Service accepted scientific review comments 
from the Air Force. The Air Force comments were a compilation of 
reviews conducted by five Ph.D. scientists and one research agronomist. 
The Air Force comments raised substantial concerns about the certainty 
of the information we had relied upon to propose the species as 
endangered. In addition, the Department of Defense filed an Information 
Quality Act petition challenging the Service's use and interpretation 
of available information used in the proposed rule. Information 
focusing specifically on Lepidium papilliferum is limited to surveys, 
unpublished reports, and a few publications in regional journals. Data 
are lacking from which to draw strong inferences about population 
trends across the entire range. On the other hand, a large body of 
scientific information documents the changing community ecology of the 
sagebrush steppe ecosystem, in which L. papilliferum is endemic. It is 
reasonable, therefore, to assess the risk of L. papilliferum extinction 
from the threat of these ecosystem changes. After reviewing all 
comments received we determined that it would be appropriate to 
reevaluate the level of risk faced by L. papilliferum. Thus, on July 
18, 2003, we published a notice explaining that we would take six 
months, in accordance with section 4(b)(6)(B)(i) of the Act, to collect 
new information and reassess the status of the species.
    At issue were the likelihood of Lepidium papilliferum becoming 
extinct and the process of assessing this extinction risk given the 
limited information available on the species. We decided to perform a 
risk analysis through structured solicitation of expert opinion as 
another resource to use in our final determination process. We convened 
a panel of six experts in plant community ecology, L. papilliferum 
ecology, plant population biology, range management and livestock 
behavior to participate to participate in this facilitated assessment 
of risk.
    The experts participated only in a biological assessment of 
extinction risk. Following the biological panel, the Service held a 
session, attended exclusively by Service employees, to assess whether 
Lepidium papilliferum meets the definition of threatened or endangered 
under the Act. The Service's assessment used all available information 
on record including, but not limited to, the biological risk assessment 
which did not introduce any new information but rather focused on the 
major threat factors previously discussed in the proposed rule, and 
extinction risk for L. papilliferum.
    During the risk assessment we asked each expert to analyze risk to 
Lepidium papilliferum under two hypothetical futures, one with 
continuation of status quo management and one with revised management 
as described in the INRMPs and conservation agreement. The panel 
participated in a series of facilitated exercises and discussions that 
addressed factors that affect L. papilliferum and the level of 
certainty of knowledge about the occurrence and biological consequences 
of these factors. At the conclusion of the analyses under the two 
hypothetical futures the experts described gaps in knowledge and other 
areas of uncertainty, which, if resolved, could influence the 
distribution or reduce variance in their estimates of extinction risk.
    Finally, panelists discussed ongoing and hypothetical research 
programs that could resolve some of the uncertainty about what the 
future holds for Lepidium papilliferum. In some cases, rough 
experimental designs, costs, and times for completion were discussed 
and recorded.
    In one exercise the panelists evaluated the various threat factors. 
Non-native annual grasses and the related effects of fire were, by far, 
the most important extinction factors. Other relatively high-ranking 
threats were livestock, drill-seeding and the forage species planted in 
fire rehabilitation, and vehicles. Other factors such as the herbicides 
used in fire rehabilitation, climate variables, and herbivory were less 
important. While there has been no previous attempt to rank these 
factors, the rankings more or less conform to the levels of emphasis 
placed on these factors in the proposed rule.
    The expert's estimates of risk also conform to the Service's 
conclusion that, over the next few decades, the likelihood of 
extinction is more probable for Lepidium papilliferum without the 
proposed conservation measures.

Comments and Our Responses

    We received 32 comments from Federal, State, and county agencies 
and government offices, industry and environmental organizations, 
researchers, and private citizens. These comments are summarized with 
the other public comments in the comments section. We assembled these 
comments and other new information we had received in a document 
entitled ``Best Available Information on Lepidium pappilliferum.'' A 
notice of availability for this document was published in the Federal 
Register on October 30, 2003. Comments received on this document have 
also been summarized with the other public comments and changes have 
been incorporated within this final determination.
    This final determination reflects the comments and information we 
received during the three public comment periods on the proposed 
listing rule, and the one comment period on the ``Best Available 
Information on Lepidium papilliferum'' document. Since comments were 
solicited on two

[[Page 3101]]

different documents, they will be summarized separately. For all public 
comments received, substantive comments and new information were either 
incorporated into or addressed directly in the final determination, 
where appropriate, or have been addressed below. Comments are grouped 
together by issue below for the purpose of this summary, along with our 
response to each.
Comments on the Proposed Rule and ``Primary Issues of Disagreement 
Regarding the Status and Threats of Lepidium Papilliferum''
    Issue 1: Several commenters, including the Idaho Transportation 
Department (ITD), were concerned that listing and designation of 
critical habitat for Lepidium papilliferum under the Act would threaten 
family ranching by restricting use of public and private lands, and 
could ultimately impact local economies. A few commenters inquired 
whether the economic impact of listing Lepidium papilliferum or its 
critical habitat had been analyzed. Several commenters, including the 
OSC, were concerned that the processes associated with listing species 
under the Act would impact efforts to conduct research and hinder 
management of the sagebrush-steppe ecosystem (e.g., fire suppression, 
range management, and fire rehabilitation). Others opposed using the 
Act to acquire private property for conservation of the species.
    Our Response: The listing of Lepidium papilliferum as an endangered 
or threatened species would result in regulatory protections for the 
plant on federally managed lands, but would not likely lead to greater 
or increased restrictions on privately owned property. For endangered 
plant species, section 9 of the Act provides prohibitions from 
activities that ``remove, cut, dig up, or damage or destroy any 
[endangered plant] species'' in knowing violation of any law or 
regulation of any state or in the course of any violation of a state 
criminal trespass law.'' Because our current action is to withdraw the 
proposal to list the species as endangered, these provisions of section 
9 and concerns regarding economic and other impacts are not applicable. 
In any event, the Act prohibits us from considering economic impacts in 
listing determinations, so we have excluded economic consideration from 
this determination.
    Issue 2: Several commenters stated that the management of Lepidium 
papilliferum on public lands is politically influenced, and the only 
alternative to ensure the conservation of the species is to list it 
under the Act. Additionally, several commenters, including the Air 
Force, Idaho Office of Attorney General (OAG), OSC, and ITD suggested 
that our listing process was not based on the best available scientific 
information, and that there is inadequate data to indicate that listing 
L. papilliferum is warranted. One commenter stated that our use of some 
references does not meet definition of transparency in our Information 
Quality Guidelines (44 U.S.C. 3502, 67 FR 8452; February 22, 2002) and, 
therefore, these references should not be used to justify listing of 
the species. Some commenters, including the OAG, believed that 
opportunities for public involvement in the listing process had been 
inadequate. Finally, some commenters asserted that the information 
gathered through the process associated with the Air Force appeal under 
the Data Quality Act should be made available to the public.
    Our Response: The Act requires us to make listing decisions based 
solely on the best scientific and commercial information available at 
the time the decision is being made (section 4(b)(1)(A)). We thoroughly 
reviewed all available scientific and commercial data in preparing the 
proposed and final listing determination. We sought and reviewed 
historical and recent publications and unpublished reports concerning 
Lepidium papilliferum and sagebrush-steppe habitat of southwestern 
Idaho. We also convened a panel of scientific experts to review the 
scientific information available to us pertaining to L. papilliferum. 
Finally, we produced the document ``Best Available Information on 
Lepidium papilliferum'' and solicited public comment on additional 
scientific information pertaining to the species. We followed our 
Information Quality Guidelines in preparing this final determination.
    Our evaluation of the significance of these numerous ongoing 
threats across the range of L. papilliferum is discussed in the 
``Summary of Factors Affecting the Species'' section of this final 
determination. This analysis includes looking at the adequacy of 
existing regulatory mechanisms, including public land management 
practices. During the listing process, we provided three public comment 
periods that were open for a total of 150 nonconsecutive days, and also 
held two public hearings so that the public would have an adequate 
opportunity to provide us comments on our proposal to list the species.
    We have received new information since the proposed rule specific 
to Lepidium papilliferum. This information ranged from additional ICDC 
survey data to slickspot soils information. While the body of available 
information specific to this species is limited, we have a legal 
obligation to make a final listing determination and we must act based 
on the best available information.
    Issue 3: Some commenters, including ITD, said past survey efforts 
did not provide adequate population and range data to support a listing 
decision for Lepidium papilliferum, while others thought past survey 
efforts were adequate. Some commenters questioned the validity of the 
methodologies used for L. papilliferum surveys, and a few asserted that 
further research is needed before a listing determination can be made. 
One commenter indicated that ICDC data documents an 84 percent increase 
in L. papilliferum occurrences since 1994 in spite of alleged threats, 
weakening the case for listing the species. Comments, including those 
from the OSC, noted that a comprehensive inventory of L. papilliferum 
throughout its range has never been conducted; that there are 
significant amounts of potential habitat on private and State lands 
that have not been inventoried; and that there appears to be sampling 
bias in that most occurrences are near roads. Others commented that 
despite the numerous L. papilliferum surveys conducted throughout most 
of the species' range, and the discovery of a few new sites, the known 
range of L. papilliferum has not been expanded.
    Our Response: As discussed in Issue 2 above, the Act requires us to 
make listing decisions based solely on the best scientific and 
commercial information available at the time the decision is being made 
(section 4(b)(1)(A)). We thoroughly reviewed all available scientific 
and commercial data in preparing the proposed rule and this final 
listing determination. We sought and reviewed historical and recent 
publications and unpublished reports concerning Lepidium papilliferum 
and sagebrush-steppe habitat of southwestern Idaho. We agree that 
undiscovered sites occupied by Lepidium papilliferum likely exist and 
there may be other areas where L. papilliferum and suitable habitat may 
occur. For example, inventories for L. papilliferum have not been 
completed on the majority of private lands within its range due to 
restricted access to these areas. We must base our status review for L. 
papilliferum not only on the plant's current known population status, 
but also the known condition of its habitat and on the current factors 
affecting the species, along with ongoing conservation efforts, as 
described in the

[[Page 3102]]

Summary of Factors Affecting the Species section of this final 
    Increased survey efforts by ICDC and BLM since Moseley produced his 
1994 status review have resulted in an increase in the number of known 
Lepidium papilliferum occurrences and total habitat acreage (Moseley 
1994; ICDC 2003). A total of 36 occurrences with a cumulative area of 
10,251 ac (4,148 ha) have been located between 1995 and present, 
essentially doubling the 1994 documented occupied area. However, these 
survey efforts did not result in an expansion of the currently known 
range of the species. Approximately 8,971 ac (3,630 ha) (87 percent) of 
this 10,251-ac (4,148-ha) increase in L. papilliferum-occupied habitat 
represent the location of a single large occurrence on the Air Force's 
Juniper Butte ETR. In addition, 24 of these 36 recently discovered 
occurrences (67 percent) are less than 20 ac (8 ha) in size, and only 3 
of the 36 occurrences (8 percent) are greater than 100 ac (40 ha) in 
    Surveys for species such as Lepidium papilliferum are conducted 
according to agency survey methodologies for special interest species 
developed for inventories of large blocks of land. We have expanded and 
clarified the discussion of the monitoring survey protocol utilized by 
the ICDC in the Background section of this final determination. In 
addition, BLM conducts extensive site-specific botanical surveys for 
proposed management projects. While roads may have been used as part of 
the methodology for some L. papilliferum inventories, the use of roads 
in surveys is not a standard survey procedure in all situations. For 
example, Popovich (2002) surveyed over 52,300 ac (21,165 ha) of BLM 
land for L. papilliferum using linear 1-mi-long (1.6-km-long) transects 
located 0.25 mi (0.40 km) apart that were independent of the location 
of roads in the Inside Desert.
    We agree that further research and continued surveys and monitoring 
will provide additional information to benefit management of this 
species. The CCA and the two INRMPs provide for this important future 
work to be accomplished. Although there is some disagreement as to the 
accuracy of some L. papillliferum locations and the current information 
regarding the total occupied range of L. papilliferum is incomplete, we 
believe we have sufficient information to support our determination not 
to list the species at this time.
    Issue 4: Some commenters suggested that, rather than listing, that 
an alternative course of action be used for conservation of the 
species. Several commenters, including the OSC, thought Federal land 
management agencies are currently managing the land to conserve 
Lepidium papilliferum through regulatory and mitigation efforts to 
minimize significant impacts from management activities, while others 
questioned the adequacy of current land management practices to 
conserve the species. Suggestions, including those made by the OSC, for 
alternative courses of action included: (1) Development of a L. 
papilliferum conservation strategy by us in collaboration with other 
agencies and stakeholders in lieu of listing; (2) development of best 
management practices for L. papilliferum; and (3) delaying listing 
until additional research, inventories, and conservation efforts can be 
implemented. The OSC also questioned why we discontinued our 
participation in the development of a conservation agreement with 
IDARNG and BLM for L. papilliferum in 1997. During the third comment 
period, some commenters stated that a conservation agreement would 
allow agencies to gain further knowledge about L. papilliferum, while 
other commenters stated that a conservation agreement would not 
constitute an effective tool of conservation of the species.
    Our Response: We strongly support utilizing a collaborative 
conservation effort to address the threats to species such that the 
need to list them is precluded. Prior to the July 18, 2003, 6-month 
extension, we worked with various agencies and individuals to assess 
the status of Lepidium papilliferum, and also to identify and implement 
conservation actions. Since February 2000, we have been an active 
participant in an interagency group of biologists and stakeholders to 
share data and coordinate conservation actions for L. papilliferum.
    This species is already afforded some level of protection due to 
the fact that the majority of known Lepidium papilliferum occurrences 
are either completely or partially on Federal land managed primarily by 
the BLM and Air Force, and 91 percent of the total area of occupied L. 
papilliferum habitat is located on Federal land. While some Federal 
land management practices include measures that promote conservation of 
L. papilliferum, other management practices and activities may affect 
its persistence (see Summary of Factors Affecting the Species section).
    We began working with IDARNG and BLM in 1996 and 1997 to develop a 
conservation strategy for Lepidium papilliferum on BLM lands, a portion 
of which is used by IDARNG for military training activities (OTA). We 
had to suspend our participation with respect to this agreement for the 
OTA in 1997 due to budget shortfalls and staff restructuring. A 
conservation agreement was drafted but never finalized. We have been 
working with BLM and IDARNG actively since 1997 to manage and conserve 
L. papilliferum. IDARNG, BLM, and the Service have been active members 
of the L. papilliferum interagency technical team, which has met 22 
times between January 2000 and December 2003.
    We believe the development of conservation agreements for Lepidium 
papilliferum that address threats and implement conservation actions 
for the species can provide significant and immediate benefits to the 
species, thus precluding the need to list. From July 2003 through 
December 2003, we provided technical assistance on policy and science 
issues in an advisory capacity to several partner agencies and affected 
private individuals in their development of the CCA for L. 
papilliferum. This CCA has research and adaptive management components 
that will improve our understanding of L. papilliferum ecology and 
conservation needs. We believe the implementation of the CCA and the 
Air Force and IDARNG INRMPs adequately conserves L. papilliferum and 
precludes the need to list the species.
    Issue 5: A few commenters disagreed with our statement in the 
proposed rule that the designation of critical habitat could delay 
publication of the final determination listing the species if they were 
done concurrently. The commenters asserted that much of the analysis 
needed to draft a critical habitat proposal had already been completed. 
Several commenters even identified specific areas that should be 
included in a critical habitat designation. Additionally, commenters 
provided input on species' conservation criteria for consideration in 
the recovery planning and critical habitat processes.
    Our Response: Critical habitat is no longer an issue, because we 
are withdrawing the proposed rule to list Lepidium papilliferum.
    Issue 6: Many commenters, including OSC, thought that wildfire 
constitutes the greatest threat to Lepidium papilliferum and its 
habitat, and some indicated that the proposed rule did not adequately 
address the negative effects of fire on the species and its habitat. 
Some also believed that wildfire impacts are more severe where grazing 
is not utilized to remove excess fuel loads, thus resulting in more 
severe fires. One commenter stated that current

[[Page 3103]]

research does not support historical and current fire frequencies. 
Other commenters, including OSC, were concerned that listing L. 
papilliferum would limit flexibility to manage nonnative annuals, fuel 
loads, and fire-suppression activities. Some commenters stated that 
research data suggest fire does not decrease, and may in fact enhance, 
L. papilliferum density and cover. Some commenters asserted that the 
conversion of native shrub-steppe to nonnative annual plants increases 
fire frequency and intensity, resulting in negative impacts to 
slickspot habitats and L. papilliferum.
    Our Response: The proposed rule and this determination of 
withdrawal state that wildfire is a factor affecting all known Lepidium 
papilliferum occurrences throughout the species' range. However, we 
have expanded and reorganized the final determination to clarify the 
significance of threats, including wildfire, to L. papilliferum. 
Current research indicates fire frequency in the sagebrush-steppe 
ecosystem throughout the range of L. papilliferum has increased from a 
historic average interval of 60 to 110 years to less than 5 years at 
many sites, due to the invasion of nonnative annuals such as cheatgrass 
(Whisenant 1990). See Summary of Factors Affecting the Species section 
for a more complete discussion.
    Issue 7: A number of comments, including those from OSC, focused on 
wildfire rehabilitation activities and their impacts to Lepidium 
papilliferum and its habitat, including mitigation efforts that can be 
taken to reduce the risk of irreversible alteration of slickspots from 
reseeding actions such as drill seeding. Some commenters, including 
OSC, asserted that the potential impacts to L. papilliferum associated 
with the use of nonnative perennials in fire rehabilitation activities 
should be balanced with potential impacts to L. papilliferum associated 
with invasion of nonnative annuals following wildfire. One commenter 
questioned the conclusion in the proposed rule that the use of the 
herbicide Oust (sulfometuron methyl) is a threat to L. papilliferum in 
light of Scholten (2000). Another commenter asserted that the presence 
of nonnative perennial forage species does not impact L. papilliferum 
because these species do not grow well on slickspots, and the real 
impact to L. papilliferum is associated with disturbance from drill 
    Our Response: Use of nonnative forage grass species (such as 
crested wheatgrass and Russian wildrye (Elymus junceus)) can result in 
successful establishment of perennial plants, ultimately reducing and 
diminishing the impacts of cheatgrass and its attendant accelerated 
fire frequency. As clarified in this final determination, we agree that 
use of nonnative species that closely mimic the biology and ecological 
function of species native to the area may be a necessary first step in 
restoration of a site following wildfire if native seed cannot be used 
due to limited availability or prohibitive cost.
    Fourteen (19 percent) of the known Lepidium papilliferum 
occurrences are located within wildfire rehabilitation projects and 
crested wheatgrass seedings. As stated in both the proposed and this 
final determination, although some L. papilliferum may temporarily 
persist in spite of these restoration seedings, most occurrences 
support lower numbers of plants, and data are not available to 
determine long-term persistence (Mancuso and Moseley 1998).
    Herbicides such as Oust are one of a number of tools available for 
the control of nonnative invasive plants. Scholten (2000) reports that, 
while Oust did not impact germination of seeds within the seed bank in 
the year following application, it reduced input into the seed bank by 
reducing Lepidium papilliferum plant density and seed production in the 
year of application. In addition, Scholten et al. (2002) conclude that 
the results of their study show evidence that Oust and drill seeding 
may have some long-term effects on L. papilliferum plants, although the 
cause of the effect is not known, and the extent seems to be minimal 
and highly tied to climatic conditions. Currently, BLM has a moratorium 
on the use of Oust on all BLM-managed lands, and it has not been used 
in L. papilliferum habitat since the spring of 2001 (BLM, in litt. 
2002b). The BLM, Air Force, and IDARNG avoid herbicide spraying for 
noxious weed control near occupied L. papilliferum habitat (BLM, in. 
litt. 2003; Air Force 2003; IDARNG 2003). Additionally, BLM policy 
requires that areas affected by wildfire are rested from land use 
activities to meet rehabilitation management objectives (CCA 2003).
    Some occupied slickspots have been permanently impacted following 
drill-seedings, but it is often not clear whether fire, seeding, or the 
combination of the two disturbances caused the disappearance of the 
species or the slickspot. See a more complete discussion on the effects 
of the herbicide Oust and the effects of drill seeding in the Summary 
of Factors Affecting the Species section.
    Issue 8: Some commenters, including OSC, thought the discussion of 
cattle grazing in the proposed rule was not based on research 
demonstrating the positive and negative effects of cattle grazing, and 
suggested there is need for additional research to determine the 
effects of livestock management practices on Lepidium papilliferum. The 
commenters thought the proposed rule overemphasized the livestock 
grazing threats to L. papilliferum relative to other threats. One 
commenter indicated that some disturbance of the soil surface by 
livestock hoof action is actually beneficial in covering seeds with 
soil and breaking the crust so seedlings can emerge. Another stated 
that grazing reduction or elimination may actually have an adverse 
impact on L. papilliferum by increasing vegetation biomass, and 
subsequently increasing the spread and intensity of wildfires. Some 
commenters stated that livestock management activities encourage the 
invasion of nonnative annuals that has led to increased fuel loads and 
fires and further decreases in native bunchgrasses. Other commenters 
said livestock grazing could be used as a tool to control invasion of 
nonnative annuals.
    Our Response: Grazing currently occurs at 56 (75 percent) of the 75 
known Lepidium papilliferum occurrences, which include approximately 
19,373 ac (7,840 ha) (96 percent) of the total area of extant 
occurrences (20,500 ac (8,300 ha)). We identified cattle grazing as a 
threat because it may result in trampling of plants in slickspots, 
especially when it occurs during wet periods when slickspots are most 
vulnerable to disturbance, or when it occurs at levels that allow for 
the spread of invasive nonnative annual plants. We have no information 
that indicates that disturbance of the soil surface by livestock hoof 
action is beneficial to L. papilliferum. Livestock grazing, at an 
appropriate level and season, may be compatible with the conservation 
of L. papilliferum. However, such appropriate levels are not known at 
this time and the effects of direct impacts must be determined by more 
study. In addition, as part of the CCA, BLM has agreed to change the 
terms and conditions of all grazing permits to reflect and include the 
conservation measures for each management unit. See the Summary of 
Factors Affecting the Species section for more detailed information.
    Limited data are currently available regarding threshold management 
levels from livestock management activities for Lepidium papilliferum. 
We have found

[[Page 3104]]

it difficult to establish impact (or effect) thresholds with any degree 
of certainty given the lack of data. Adaptive management techniques in 
areas occupied by L. papilliferum could incorporate new information 
from ongoing and proposed livestock grazing studies and monitoring 
conservation efforts for the species. We anticipate that additional 
information regarding L. papilliferum and livestock grazing, such as 
research currently underway by the Idaho Department of Agriculture, Air 
Force, and Idaho Cattle Association, will be available for use in 
species conservation.
    Issue 9: Some commenters, including the OSC, stated that the status 
of Lepidium papilliferum was a symptom of the current ecological 
condition of the sagebrush-steppe ecosystem, and others do not think 
that there is likely a connection. OSC believed that we need to 
consider the broader implications to other sagebrush-steppe obligate 
species by listing L. papilliferum at this time. Some commenters, 
including OSC, stated that habitat fragmentation of the sagebrush-
steppe ecosystem negatively impacts L. papilliferum, while others 
indicated that there are no data to suggest that habitat fragmentation 
impacts it.
    Our Response: Lepidium papilliferum is one of several species found 
only in sagebrush-steppe ecosystem that are affected by habitat loss 
and degradation. The fragmentation and degradation of the sagebrush-
steppe habitat has been well documented (Yensen 1980; Billings 1990; 
Whisenant 1990; Moseley 1994; Miller et al. 1999; Noss et al. 1995; 
Mancuso 2002). There is a general lack of information about the effects 
of habitat fragmentation on L. papilliferum. See the Summary of Factors 
Affecting the Species section for more detailed information.
    Issue 10: Some commenters indicated that training activities, 
facilities, and land management practices on military managed lands 
impact Lepidium papilliferum. Other commenters stated that there are no 
data to indicate that military training significantly impacts L. 
papilliferum. IDARNG suggested that listing of L. papilliferum as a 
threatened species could be detrimental to future military training 
activities, including ground and aerial training maneuvers. One 
commenter indicated that military training activities could be 
conducted in a manner that would not significantly impact recovery of 
L. papilliferum. The ITD indicated that it was unknown if the impacts 
of listing L. papilliferum would be compatible with national defense 
and/or Homeland Security.
    Our Response: Some military training activities have been 
identified as potential factors affecting Lepidium papilliferum and its 
habitat. Occurrences of L. papilliferum are located within the 
boundaries of lands designated for military training activities by the 
Air Force and IDARNG. L. papilliferum located on the Air Force's 
Juniper Butte ETR are considered to encompass one large occurrence as 
defined by ICDC. This occurrence constitutes 44 percent (approximately 
8,970 ac (3,630 ha)) of the total known extant occurrence area across 
the range of the species according to ICDC data, with approximately 109 
ac (44.1 ha) of this area slickspot microsite type habitat and only 4 
ac (1.6 ha) of occupied habitat. However, the Air Force intends to use 
only 300 ac (121 ha) or 3.3 percent of the entire Juniper Butte ETR as 
the actual bombing impact area (Air Force 2000). This 300-ac (121-ha) 
area contains only 1.5 percent of the 20,500-ac (8,300-ha) total known 
occupied L. papilliferum habitat. It is also anticipated that a small 
amount of ordnance will be dropped outside the primary ordnance impact 
area, but the potential impact to L. papilliferum would likely be 
minimal. As a result, the threats to L. papilliferum by Air Force 
training activities are expected to be minimal (see Factor A in 
``Summary of Factors Affecting the Species'' section for further 
discussion on military activities).
    On the OTA, IDARNG has implemented a variety of actions to meet the 
conservation needs of Lepidium papilliferum over the past 12 years, 
while still providing for military training activities. These actions 
include intensive fire suppression efforts, and restricting ground 
operated military training to where the plants are not found. We 
believe it is possible to conduct military training activities in a 
manner compatible with the conservation of L. papilliferum, and we do 
not anticipate significant impediments to the Air Force and IDARNG in 
conducting ongoing military training activities in southwest Idaho as a 
result of implementing conservation measures for this species.
    As we believe that the majority of potential military impacts to 
Lepidium papilliferum have been reduced through avoidance or mitigation 
as described in the Air Force and IDARNG INRMPs, we believe that 
potential impacts of conserving this species to Homeland Security would 
also be minimal.
    Issue 11: Miscellaneous threats to Lepidium papilliferum were 
discussed by some commenters, such as impacts from off-road vehicle 
(ORV) use in L. papilliferum habitats, and potential impacts of insects 
and wildlife. One commenter questioned whether the large infestation of 
Mormon crickets (Anabrus simplex) over the last two years might have 
impacted L. papilliferum through vegetative depredation. Another 
commenter stated there are no data to support the statement that 
herbivory by beetles is a threat to the species. Several commenters, 
including OSC, stated that drought should be considered as a threat to 
Lepidium papilliferum within the rule. One commenter stated that the 
increase of nonnative plants in the sagebrush-steppe ecosystem is 
likely impacting the abundance of insect pollinators of L. 
    Our Response: We have discussed ORV use and potential impacts of 
insects and wildlife in the Summary of Factors Affecting the Species 
    Also, we are unaware of any specific studies documenting foraging 
on Lepidium papilliferum by Mormon crickets, although, as indicated in 
our proposed rule, herbivory by beetles has been observed on L. 
papilliferum plants (M. Mancuso, in litt. 1998).
    Regarding drought, there was no specific information pertaining to 
potential drought effects to L. papilliferum. We have added a 
discussion of the insect pollinators of L. papilliferum and potential 
impacts to them from conversion of sagebrush-steppe habitats to 
nonnative annual grasslands.
    Issue 12: Some commenters, including ITD, stated that the taxonomic 
status for Lepidium papilliferum is problematic and warrants further 
evaluation, while others asserted that L. papilliferum is a distinct 
    Our Response: As discussed in our proposed rule, Lepidium 
papilliferum was originally described as L. montanum var. papilliferum 
but was included as a distinct species in a recent review of the 
mustard family (Brassicaceae) by Rollins (1993). An independent review 
by Lichvar of the taxonomic status of Lepidium papilliferum as 
presented in Rollins (1993) stated that L. papilliferum ``has distinct 
morphological features that warrant species recognition,'' and, ``until 
a final taxonomic determination is done in the future, Dr. Rollins'' 
decision to place it at the species level makes sense for now (in litt. 
2002)''. Please refer to the Background section of this rule for more 
detailed information and clarification as to the taxonomic status of 
this species.
    Issue 13: One commenter stated that we do not have the authority to 
protect Lepidium papilliferum under the Act

[[Page 3105]]

because the species occurs in only one State and is not an article of 
interstate commerce.
    Our Response: Federal courts have repeatedly held that the Federal 
government has the authority under the Commerce Clause of the U.S. 
Constitution to protect species that are endemic to one State, and that 
are not articles of interstate commerce. See Rancho Viejo, LLC v. 
Norton, 323 F.3d 1062 (D.C. Cir. 2003); National Association of Home 
Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir 1997). The Federal 
government also has the authority under the Property Clause of the 
Constitution to protect this species. Lepidium papilliferum occurs 
primarily on Federal lands. If this species were to become extinct, the 
diversity of plant life on these Federal lands would be diminished. The 
courts have long recognized Federal authority under the Property Clause 
to protect Federal Resources in such circumstances. See Kleppe v. New 
Mexico, 429 U.S. 873 (1976); United States v. Alford, 274 U.S. 264 
(1927); Camfield v. United States, 167 U.S. 518 (1897); United States 
v. Lindsey, 595 F.2d 5 (9th Cir. 1979). This is no longer an issue as 
we are withdrawing the proposed rule to list L. papilliferum.
Comments on the ``Best Available Information on Lepidium papilliferum'' 
and the Draft Candidate Conservation Agreement for Slickspot 
Peppergrass (Lepidium papilliferum).
    On October 30, 2003, we published a notice of document availability 
for review and public comment, which opened a 14-day public comment 
period through November 14, 2003 (68 FR 61821). We solicited public 
comment on our document ``Best Available Information on Lepidium 
papilliferum,'' which contained information we planned to utilize in 
making a final listing determination for the species. We also accepted 
public comments on a document entitled ``Draft Candidate Conservation 
Agreement for the Slickspot Peppergrass (Lepidium papilliferum)'' 
(Idaho Office of Species Conservation, in litt. 2003). We received 18 
comments, many of them from parties that had previously commented on L. 
papilliferum. Of the 18 comment letters, 4 commented on the ``Best 
Available Information of Lepidium papilliferum,'' 8 commented on the 
CCA, and 6 commented on both documents. Since our role in development 
of the CCA was only advisory to the Cooperating Parties of the CCA, we 
collected the comments for these parties as a courtesy and provided the 
comments to them at the close of the comment period. The Cooperating 
Parties of the CCA reviewed, analyzed, and incorporated the public 
comments into the CCA as they deemed appropriate.
    Issue 1: One commenter provided us with additional scientific 
information regarding the chemical characterization of the upper three 
soil horizons of representative slickspots.
    Our Response: We have incorporated the additional information into 
the description of slickspots in the Background section of the final 
    Issue 2: One commenter suggested revision of the data representing 
element occurrence acreages on the Air Force's Juniper Butte ETR. 
Specifically, that the Service should revise the element occurrence 
size for the ETR to 1,098 ac (445 ha) instead of the 8,970 ac (3630 
    Our Response: We have incorporated information regarding the 
question of occurrence area and delineations into the Background 
section of this final determination. We have requested that the ICDC 
review and update the ICDC in 2004 including an evaluation and possible 
revision to the extent of acreage and number of element occurrences on 
the Juniper Butte ETR.
    Issue 3: Some additional miscellaneous threats to Lepidium 
papilliferum were discussed by some commenters, such as the impacts of 
Mormon crickets and grasshoppers. We also received suggestions for 
management of insects to provide conservation benefits to L. 
papilliferum. Pursuant to CCA 2003, Conservation Measure 34, ``the BLM 
in cooperation with the U.S. Department of Agriculture (USDA) Plant 
Protection and Quarantine (PPQ) will aggressively work to minimize the 
risk of insect (i.e., Mormon crickets and grasshoppers) herbivory when 
outbreaks occur that may threaten existing element occurrences.''
    Our Response: The issue of the threat from Mormon crickets has been 
raised in previous comment periods, and is addressed under Issue 11 
above. We are unaware of any specific studies documenting foraging on 
Lepidium papilliferum by grasshoppers, although, as indicated in our 
proposed rule, herbivory by beetles has been observed on L. 
papilliferum plants (M. Mancuso, in litt. 1998).
    Suggestions of possible measures to eliminate harmful insects, as 
well as measures to increase potential pollinators for L. papilliferum, 
were shared with cooperators developing the Candidate Conservation 
    Issue 4: Some commenters questioned several aspects of our 
discussion of impacts to slickspots, including grazing impacts, such as 
hoofprint penetration of slickspots, and deposition of soils into 
    Our Response: Much of the issues related to grazing activities are 
addressed in our responses to Issues 7 and 8 above. We have updated our 
discussion of the chemical and physical characteristics of slickspots 
(see also Issue 1 under the ``Best Available Information on Lepidium 
papilliferum'' section) in the Background section. We have included a 
discussion of soil erosion and deposition resulting from wildfire and 
livestock grazing in Summary of Factors Affecting the Species Factor A 
of this final determination.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for adding species to the Federal list of 
endangered and threatened species. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act. The following analysis 
examines the listing factors, their application to Lepidium 
papilliferum, and evaluates conservation measures that act to reduce 
present and future threats to the species. The Service's Policy for 
Evaluation of Conservation Efforts When Making Listing Determinations 
(68 FR 15100; March 28, 2003) (PECE) identifies criteria we will use in 
determining whether formalized conservation efforts that have yet to be 
implemented contribute to making listing a species as threatened or 
endangered unnecessary. The PECE policy applies to several of the 
conservation agreements that we have considered in this analysis.
    A Candidate Conservation Agreement was completed in December 2003, 
by the BLM, the State of Idaho, IDARNG, and holders of BLM livestock 
permits. In conjunction with the CCA, several private landowners 
entered into Memorandum of Understandings (MOUs) with the State of 
Idaho committing to conservation efforts on approximately 17,000 acres 
of private land. The IDARNG has operated the Orchard Training Range 
(OTA) under their INRMP for several years and has committed under the 
conservation agreement to additional conservation actions. The Air 
Force has recently updated their INRMP to strengthen conservation 
measures for the species. These conservation plans have

[[Page 3106]]

contributed to reducing the overall threats to the species. The five 
factor analysis below will examine that contribution, and following 
that analysis is the application of the PECE policy to this listing 
    A. The Present or Threatened Destruction, Modification, or 
Curtailment of its Habitat or Range. Several categories of activities 
have potential to affect the sagebrush-steppe ecosystem and slickspot 
microsite habitat to which Lepidium papilliferum is an obligate 
species, including increased frequency and intensity of wildfires; 
wildfire management; wildfire rehabilitation; habitat invasion by 
nonnative plant species; cattle and sheep grazing activities that are 
incompatible with L. papilliferum conservation; residential and 
agricultural development; ORV use; gravel mining; and certain military 
training activities (Moseley 1994; Mancuso and Moseley 1998; 
Interagency L. papilliferum Group (ILPG), in litt. 1999).
    This section of the rule presents information for each of the 
factors affecting L. papilliferum and its habitat, followed by a 
summary of how formalized conservation efforts eliminate or reduce 
adverse effects.


    The proposed rule stated that ``* * * wildfire is a threat to all 
known Lepidium papilliferum occurrences throughout its range'' (67 FR 
46441) and may represent one of the principal factors affecting the 
species and the sagebrush-steppe ecosystem. The effects of wildfire can 
be both locally severe and long term. Data on the specific direct 
effects to L. papilliferum are often difficult to interpret due to the 
lack of sufficient long-term monitoring data, although there have been 
numerous studies and reports related to the effect of wildfire on the 
sagebrush-steppe ecosystem.
    Wildfire effects on Lepidium papilliferum encompass several 
categories below, most of which are interrelated and difficult to 
isolate from each other. For example, the invasion of nonnative annual 
grasses increases the amount and continuity of fine fuels across the 
landscape, which in turn increases the likelihood of frequent and 
intense fires within the range of Lepidium papilliferum.

Wildfire Frequency, Intensity, and Management

    Historically, fires in sagebrush-steppe communities occurred 
infrequently, tended to burn small areas, and required hotter, drier 
conditions to burn (Whisenant 1990; Billings 1990). Although wildfire 
may have been an important factor in sagebrush-steppe habitat (Miller 
et al. 1999) where Lepidium papilliferum evolved, activities following 
European settlement have greatly altered the historical native 
vegetation and associated fire regimes in the sagebrush-steppe 
ecosystem (Brandt and Rickard 1994; D'Antonio and Vitousek 1992; Miller 
et al. 1999; Moseley 1994; Whisenant 1990; Wright and Bailey 1982; 
Young et al. 1976; Young and Evans 1978). Due to the invasion of 
nonnative plant species such as cheatgrass and medusahead that increase 
the amount and continuity of fine fuels across the landscape, the fire 
frequency has been increased from between 60 to 110 years to less than 
5 years in many sites of the sagebrush steppe ecosystem (Whisenant 
1990; Wright and Bailey 1982; West and Young 2000; Billings 1990; USGS, 
in litt. 1999). These uncharacteristic fires tend to be larger and burn 
more uniformly, resulting in fewer patches of remnant unburned 
vegetation than naturally occurred, which also impacts post-fire 
recovery of native sagebrush-steppe vegetation (Whisenant 1990). The 
result of this altered fire regime has been the conversion of vast 
areas of the former sagebrush-steppe ecosystem into nonnative annual 
grasslands (USGS, in litt. 1999).
    Frequent fires can also promote soil erosion (Bunting et al. 2003; 
K. Sanders, University of Idaho, in litt. 2000) in arid environments 
such as the sagebrush-steppe ecosystem. Increased sedimentation due to 
soil erosion into slickspots from surrounding areas after a fire may 
allow weedy species to invade slickspots (DeBolt 1999, as cited in Air 
Force 2000). Approximately 43 percent of the area within the known 
range of L. papilliferum is located within a wildfire mosaic that 
burned at least once between 1957 and 2002 (BLM 2003). Presently, 58 
(77 percent) of the 75 known L. papilliferum occurrences are documented 
as being wholly or partially burned (ICDC 2003).

Wildfire Management

    Ground disturbance associated with fire control, such as 
establishment of fire lines (areas with vegetation removed to bare soil 
to break fuel continuity), establishment of fire camps and staging 
areas, and use of fire suppression vehicles can also impact existing 
Lepidium papilliferum occurrences and damage slickspot habitat (ILPG, 
in litt. 1999; BLM, in litt. 2001). The practice of ``green-stripping'' 
or converting native sagebrush-steppe habitat to nonnative plant 
species that are considered more fire resistant also has occurred 
(Moseley 1994). ``Green-stripping'' using noninvasive plant species 
that are fire resistant may limit the overall potential for adverse 
effects of wildfire on L. papilliferum habitat (BLM, in litt. 2002b), 
although implementing ``green-stripping'' in an inappropriate location 
and/or using an invasive plant species can adversely affect L. 
    Good fire management practices can reduce the threat of fire and 
result in improved conservation status for the Lepidium papilliferum. 
The military has a number of current, ongoing efforts to address fire 
suppression. Since the late 1980s, the policies of the Army National 
Guard included immediate fire suppression during military activities to 
prevent damage to intact sagebrush steppe and Lepidium papilliferum 
sites within the Orchard Training Area (IDARNG 2003). Seven occurrences 
of L. papilliferum occur within this area. These occurrences include 
two of the A-ranked occurrences, one of which is the largest (2,500 
acres) A-ranked occurrence (ICDC 2003). Since 2002, the Air Force has 
also instituted a high-level rapid response for fire suppression on the 
Juniper Butte ETR (Air Force 2004). The Air Force also addresses fire 
prevention through reducing standing fuels and weeds, planting fire-
resistant vegetation in areas with a higher potential for ignition 
sources, such as areas along roads, and using fire indices to determine 
when to restrict activities when fire hazard rating is extreme (Air 
Force 2004). The BLM and IDARNG are continuing their mutual support 
agreement for wildfire suppression in the Snake River Birds of Prey 
National Conservation Area (IDARNG 2003).

Wildfire Rehabilitation

    In the proposed rule, we stated that post-fire range restoration 
efforts can also threaten Lepidium papilliferum (67 FR 46441). Drill 
seeding is the process of seeding an area using a rangeland drill that 
plants and covers seed simultaneously in furrows. It is designed to 
give the seeds moisture and temperature advantages that will enhance 
their competitive fitness, and consequently, their success rate 
(Scholten and Bunting 2001). Drill-seeding may have less severe impacts 
on slickspot habitat than disking the soil, but the success of fire 
rehabilitation efforts at maintaining slickspots and L. papilliferum 
varies considerably. Some occupied slickspots have been negatively 
impacted following drill-seedings, but it is often not clear whether 
fire, drill-seeding, or the combination of the two disturbances

[[Page 3107]]

caused the disappearance of the species or the slickspot. Agency 
resource specialists have observed that in some cases slickspots can 
reform following a disturbance such as a drill seeding event (Moseley 
1994; A. Martin, Air Force, pers. comm. 2003). It is unknown whether a 
reformed slickspot would maintain the structural soil characteristics 
necessary to support L. papilliferum (A. Harkness, pers. comm. 2003), 
or whether the L. papilliferum seed bank would remain viable until such 
time that a slickspot reforms (Air Force 2000). Preliminary results 
after 5 years of an ongoing 6-year study examining the effects of drill 
seeding on Lepidium papilliferum indicate that the density of above-
ground L. papilliferum plants was lower on drilled slickspots than on 
non-drilled sites (Scholten and Bunting 2001; Scholten et al. 2002), 
although effects of drill-seeding on the L. papilliferum seed bank were 
not examined in this study.
    The benefits of post-fire revegetation, and subsequent recovery of 
soil surfaces conducive to germination and establishment of perennial 
grass and shrub communities, may outweigh the initial short-term 
disturbance associated with drill seeding (Hilty et al. 2003; Young and 
Allen 1996; Bunting et al. 2003). In 2001, the BLM modified its 
rangeland drills used in fire rehabilitation to reduce the seeding 
depths so the drills would be less damaging to above-ground L. 
papilliferum plants, the seed bank, and slickspot habitat. 
Establishment of seeded grasses, forbs, and shrubs following drill 
seeding conducted in 2001 using depth bands was observed to be at 
acceptable levels during a BLM field review in September 2002 (B. 
Heslin, Service, pers. comm. 2002).
    Conservation measure 08 of the CCA commits BLM to use seeding 
techniques that minimize soil disturbance such as no-till drills and 
rangeland drills equipped with depth bands when rehabilitation and 
restoration projects have the potential to impact occupied and suitable 
habitat. Rehabilitation and restoration standard operating procedures 
for Lepidium papilliferum were issued in an Instruction Memorandum in 
January 2004.
    Since 1987, the Army National Guard has had policies in place for 
fire rehabilitation activities that avoid the use of drill seeding and 
require the use of native plant species for reseeding fire-impacted 
areas on the OTA (IDARNG 2003). Both the BLM and Air Force have 
``slickspot-friendly'' rehabilitation measures in place, for example, 
forage kochia are not to be used for revegetation in L. papilliferum 

Nonnative Perennial Plants

    Activities associated with seeding burned areas with highly 
competitive nonnative perennial plants, including crested wheatgrass, 
have resulted in the destruction of at least two Lepidium papilliferum 
sites (Moseley 1994; A. DeBolt, in litt. 2002). Crested wheatgrass, a 
forage species, is a strong competitor and its seedlings are better 
than some native species at acquiring moisture at low temperatures 
(Lesica and DeLuca 1998, Pyke and Archer 1991; Marlette and Anderson 
1986; Bunting et al. 2003).
    Although the use of native plant species for fire rehabilitation is 
preferable, there have been problems with the availability and high 
cost of native seed (Jirik 1999; Brooks and Pyke 2001). One alternative 
may be to focus revegetation programs on establishing functional groups 
of nonnative plant species that maintain ecosystem processes (Jones 
1999; Masters and Sheley 2001).
    Intermediate wheatgrass (Agropyron intermedium) and forage kochia 
are two additional nonnative perennial species that have been used to 
rehabilitate sagebrush-steppe habitat after a fire event (Moseley 1994; 
Mancuso 2002; Popovich 2002). Post-fire monitoring over a 6-year period 
following aerial seeding with forage kochia in one study area showed 
eventual loss of L. papilliferum along the monitoring transect and a 
dramatic increase in forage kochia (A. DeBolt, in litt. 2002), 
indicating that forage kochia may be a strong competitor with L. 
papilliferum (Meyer et al., in press). Under current policies, the BLM 
no longer uses forage kochia as a fire rehabilitation species in L. 
papilliferum habitat (BLM in litt. 2002b). Additionally, in the future, 
the BLM will emphasize the use of native plants, including forbs, in 
seed mixes and avoid the use of invasive nonnative species (CCA in 
litt. 2003). BLM issued in January 2004, an Instruction Memorandum to 
its employees to comply with the CCA's requirements for emergency 
stabilization and fire rehabilitation activities. The Air Force also 
now uses only non-invasive plant materials and will not use forage 
kochia, intermediate wheatgrass, and salt-tolerant species such as 
four-wing saltbush, according to its revised INRMP.

Invasive Annual Plants

    The past conversion of vast areas of the sagebrush-steppe ecosystem 
to annual grasslands has reduced suitable remaining habitat for, and 
invaded some, Lepidium papilliferum occurrences. An estimated 5 to 6 
million ac (2 to 2.43 million ha) of sagebrush-steppe in the western 
Snake River basin has been converted to nonnative annual vegetation 
dominated by cheatgrass and medusahead (Noss et al. 1995), a portion of 
which includes L. papilliferum occurrences. L. papilliferum typically 
declines or is extirpated following the replacement of sagebrush-steppe 
habitat by nonnative annuals (Moseley 1994). Invasion by nonnative 
annual plants leads to increasing habitat fragmentation and isolation 
of extant occurrences (through interspersion of unsuitable annual 
grasslands habitat (Moseley 1994)). Fifty-seven of the 75 known L. 
papilliferum occurrences are documented as containing some level of 
nonnative annual (mainly cheatgrass) invasion (ICDC 2003). The 
subsequent increase in frequency of fire and the associated invasion of 
weedy annual plants are threats to the long-term integrity of L. 
papilliferum habitat and population viability (M. Mancuso, in litt. 
    The BLM has agreed in the future to emphasize the use of native 
plants and avoid the use of invasive nonnative species (CCA in litt. 
2003). CCA conservation measure number 12 on page 25 of the CCA states 
that the BLM will use forbs in seed mixes to increase diversity and 
pollen sources for insect pollinators. Conservation measure 10 on page 
25 of the CCA states that the BLM will use native plant materials and 
seed if available during restoration and rehabilitation activities 
unless use of non-native, non-invasive species would contribute 
beneficially to maintenance and protection of occupied and suitable L. 
papilliferum habitat. Recent BLM Instruction Memoranda formalize these 
measures and approximately 30 others as policy and assigns lead 
management responsibility for CCA conservation measures.
    The Air Force and IDARNG have also developed similar measures (Air 
Force 2004; IDARNG 2003). Page 6-30 of the Air Force INRMP required use 
of only non-invasive plan materials and use of native plants to the 
maximum extent practicable. The IDARNG has implemented a similar policy 
for the past several years.

Use of Herbicides in Fire Control

    Another potential threat to Lepidium papilliferum related to 
wildfire is the use of herbicides in fire rehabilitation. Oust is a 
nonspecific herbicide toxic to plants in the mustard family that is 
absorbed by both roots and foliage of the plants when it is applied. 
Oust has been used over large areas for rehabilation in

[[Page 3108]]

the past on BLM lands that contain L. papilliferum habitat. Currently, 
BLM has a moratorium on the use of Oust on all BLM-managed lands, and 
it has not been used in L. papilliferum habitat since the spring of 
2001 (BLM, in litt. 2002b). The BLM, Air Force, and Idaho Army National 
Guard avoid herbicide spraying for noxious weed control near occupied 
L. papilliferum habitat (BLM, in. litt. 2003; Air Force 2004; IDARNG 
2003). Additionally, BLM policy requires that areas affected by 
wildfire are rested from land use activities to meet rehabilitation 
management objectives (CCA, in litt. 2003).


    Existing conservation measures designed to reduce the adverse 
effects of wildfire, including those implemented through the Candidate 
Conservation Agreement (CCA), Air Force INRMP and IDARNG INRMP, apply 
to approximately 97 percent of Lepidium papilliferum-occupied range. 
For example, the IDARNG, Air Force, and BLM will continue their rapid 
response or mutual support agreement for fire control, and will not use 
forage kochia for revegetation within occupied L. papilliferum habitat. 
The CCA implements aggressive suppression objectives aimed at reducing 
wildfire risks, particularly for priority occurrences. BLM has targeted 
suppression of 90 percent of fires to less than 100 ac (40.5 ha), in 
most CCA management areas they administer. This represents roughly a 
doubling of past suppression efforts. The BLM has committed to creating 
and maintaining fuel breaks where frequent fires can threaten occupied 
and suitable L. papilliferum habitat. Implementation of these more 
restrictive wildfire management goals and prevention measures will 
benefit L. papilliferum and the sagebrush-steppe habitat, and 
substantially reduce the threats to the species from fire and 
subsequent habitat conversion.
    The INRMPs and CCA implement minimum impact suppression tactics to 
mitigate the impacts of suppression. Additionally, the BLM and Air 
Force will distribute maps to fire crews and provide training so they 
are aware of element occurrences to avoid ground disturbance impacts to 
L. papilliferum habitat.
    An additional 17,000 acres (6,880 ha) of private land are covered 
in MOUs with the State of Idaho, where landowners will implement 
actions to avoid ground disturbance impacts in the vicinity of 
slickspots and coordinate fire suppression activities with the BLM to 
avoid ground disturbance impacts to L. papilliferum habitat. The 
duration of these agreements is for 2 years with the possibility of 
extending this time. Due to the limited area private land constitutes 
of the L. papilliferum's total range we do not significantly rely on 
these areas in this withdrawal determination.
    As evidenced by the healthy condition of the occurrences on the 
Orchard Training Area (two A-ranked occurrences), it has been 
demonstrated that diligent efforts to suppress fire and the use of 
native species with minimal ground-disturbing fire rehabilitation 
activities can be effective in reducing the wildfire threat. In 
addition, the IDARNG already does not drill seed in occupied L. 
papilliferum habitat and uses native plants for reseeding efforts. BLM, 
the Air Force, and IDARNG avoid spraying herbicides near occupied 
habitat (CCA, in litt 2003). The BLM, Air Force, and IDARNG all either 
avoid ground disturbance during rehabilitation or use no-till drills or 
rangeland drills with depth bands to reduce soil impacts.
    We believe that the ongoing and recently implemented conservation 
measures, while not preventing future wildfire, will reduce both short-
term and long-term effects of wildfire in the foreseeable future within 
the range of the species. Given the inherent difficulties for wildfire 
prevention, the conservation measures may not be completely effective 
in preventing the adverse effects of a landscape-level wildfire event. 
In the event of landscape-level wildfire affecting occurrences, an 
effective adaptive management strategy to account for changed 
circumstances as identified in the CCA and INRMPs will be critical to 
ensure the conservation of L. papilliferum.
    The CCA on page 117 describes the role of the Slickspot Peppergrass 
Conservation Team (SPCT) in implementing adaptive management. In 
addition to the CCA cooperators, the Service is a member of the SPCT. 
One important component of the adaptive management process is how the 
SPCT will address the significance of changed conditions in response to 
developing appropriate adaptive management. Figure 4 (CCA 2003; page 
118) outlines the implementation framework and feedback loop. The SPCT 
will need to address the significance of the changed conditions 
promptly after the changed condition is discovered (CCA 2003; page 
119). The CCA describes in detail the process of adaptive management 
and assigns the responsibility to the SPCT.

Livestock Grazing Management

    The threat of livestock grazing encompasses the effects of 
trampling, especially during wet periods, and the continued spread of 
nonnative species that exacerbates wildfire risk. Currently, livestock 
grazing potentially affects up to 96 percent of the extant occurrences 
of Lepidium papilliferum. While livestock grazing has had direct and 
long-term indirect impacts to the sage-steppe ecosystem, Lepidium 
papilliferum remains extant in numerous occurrences within its range.
    The direct effects of livestock grazing on L. papilliferum result 
primarily from trampling on L. papilliferum plants in the spring when 
soils are moist (Mancuso 2001). Potential indirect effects include 
trampling damage to occupied slickspots, nonnative plant dispersal, 
increased organic matter from livestock feces, pollinator impacts, 
changes in vegetation composition, and increased wildfire. There is a 
lack of data on the specific direct and indirect effects of grazing to 
L. papilliferum. Available data have limitations due to the lack of 
sufficient long-term monitoring data.
    Grazing currently occurs at 56 of the 75 known Lepidium 
papilliferum occurrences, which includes approximately 19,373 ac (7,840 
ha) (96 percent) of the total acreage of extant occurrences (20,500 ac 
(8,300 ha)).
    Beginning in 2000, the BLM initiated conservation efforts to 
mitigate livestock grazing impacts to Lepidium papilliferum on land it 
manages. The BLM has moved some water troughs to attract livestock 
outside of areas containing L. papilliferum, and also constructed fence 
enclosures in three areas containing the species to protect it from 
livestock impacts (BLM, in litt. 2002b; ICDC 2003).
    In the CCA, BLM has agreed to change the terms and conditions of 
all grazing permits to reflect and include the conservation measures 
for each management unit. Each BLM management unit has unit-specific 
conservation measures for the multiple element occurrences located 
within it. The conservation measures for the management unit are 
designed to eliminate, reduce or mitigate the impacts of site specific 
activities and threats and to maintain or restore the sagebrush-steppe 
    Additionally, the BLM has changed the season of grazing use from 
spring to fall on some allotments to protect flowering annuals from 
effects of grazing, although this does not protect the biennial form of 
L. papilliferum from impacts such as livestock

[[Page 3109]]

trampling in the fall. Under conservation actions proposed in the CCA, 
one element occurrence (number 50) will receive no livestock grazing in 
the future. The BLM continues to conduct annual surveys for L. 
papilliferum, and over 52,300 ac (21,165 ha) were surveyed in the 
Jarbidge Resource Area alone in 2002 (Popovich 2002). Surveys conducted 
by the BLM in the Inside Desert in 2000 through 2002 resulted in the 
designation of 12 new occurrences by ICDC (ICDC 2003).
    The Air Force established three fenced areas (80 ac (32 ha), 12 ac 
(4.9), and 20 ac (8.1 ha)) in 2002 with the purposes of promoting L. 
papilliferum research and seed collection (Rose, pers. comm. 2003; Air 
Force, in litt. 2002a). Fencing is not always effective at prohibiting 
livestock entry into fenced areas depending upon fence maintenance and 
other circumstances. For example, in 2003, cattle were observed in one 
of the three fenced areas (The Environmental Company, Inc., in litt. 
2003). Air Force contract biological survey personnel immediately 
repaired the fence.
    Research to examine the relationship between livestock grazing and 
L. papilliferum was initiated in 2002 by the State of Idaho and the Air 
Force in cooperation with the Service and is being continued by the 
University of Idaho (Bunting, pers.comm. 2003) (Air Force, in litt. 
2002a; K. Crane, Idaho Department of Agriculture, pers. comm. 2003). 
This is the first study of its kind that will focus specifically on 
livestock grazing and L. papilliferum. Results of this study will 
provide a basis for either validating existing conservation measures or 
adjusting conservation measures through the adaptive management 
approach outlined in the conservation documents (CCA, in litt 2003).
    We acknowledge that the short- and long-term effects of livestock 
grazing on Lepidium papilliferum have not been adequately evaluated to 
date, and it is not possible to make definitive cause and effect 
determinations with any degree of certainty. Lacking this information, 
we extrapolated research from similar situations and studies of the 
sagebrush-steppe habitat in general which we used to make informed 
judgments about how grazing might affect L. papilliferum and its 


    The conservation documents (CCA, USAF-INRMP, IDARNG-INRMP) 
implement numerous measures to avoid, mitigate, and monitor effects of 
grazing on the species. Livestock grazing conservation measures 
implemented in the CCA and the Air Force INRMP apply to all federally 
managed lands within the occupied range of Lepidium papilliferum. 
Avoidance measures in the conservation documents include closing areas 
to grazing, maintaining existing enclosure fencing, prohibit trailing 
cattle through element occurrences when soils are saturated, placing 
salt or feed supplements so as to avoid slickspot trampling, adjusting 
seasons use to avoid impacts when slickspot soils are most likely to be 
saturated and susceptible to heavy trampling effects, and prohibiting 
the use of off road areas for vehicle travel.
    Conservation measures implemented by the CCA include minimum 
distances for placement of salt and water troughs away from occurrences 
of the species. The CCA also implements measures to reduce trampling 
during wet periods, including trailing restrictions and restrictions to 
prevent penetrating trampling of slickspots. More restrictive 
conservation measures have been implemented in the CCA for priority 
occurrences, such as no early spring grazing, fencing to exclude 
livestock, and delaying turnout when soils are saturated.
    Efforts described in many of the CCA conservation measures (CCA, in 
litt 2003) reduce the extent and depth of trampling slickspots by 
livestock. Though little data is available regarding this potential 
impact, we consider breaking of the slickspot restrictive layer as 
having the most potential for damaging the integrity of the slickspots. 
One source of information regarding trampling of slickspots is from 
studies at the IDARNG's OTA. A significant reduction in above-ground L. 
papilliferum plant numbers at a site on the OTA was documented for a 6-
year period (1996 to 2002) following an intensive livestock trampling 
event that occurred in the spring of 1996 (Meyer et al., in press), and 
population modeling indicated that this reduction could not be 
explained as a possible consequence of weather patterns.
    In addition to the conservation measures implemented by CCA 
cooperators, several private landowners representing 17,000 ac (6,880 
ha) of private land have entered into MOUs with the State of Idaho to 
conserve the species. These private landowners have agreed to implement 
measures from the CCA pertaining to minimum distances for placement of 
salt blocks away from slickspots, minimum distances for water trough 
placement away from slickspots, and avoiding trailing of livestock when 
soils are saturated, and restricting their vehicle travel to existing 
roads and tracks. At least one landowner will include 160 acres (64.7 
ha) of private land into an enclosure to protect an occurrence from 
grazing. The duration of these agreements is for 2 years with the 
possibility of extending this time. Due to the limited area private 
land constitutes of the Lepidium papilliferum's total range we do not 
significantly rely on these areas in this withdrawal determination.
    Under the revised INRMP, the Air Force will continue to use 
livestock grazing throughout the majority of the Juniper Butte ETR to 
reduce the amount of standing grass biomass to in turn reduce wildfire 
risk (Air Force 2000, 2002b, 2004). The grazing component plan for the 
INRMP states that livestock grazing will occur annually for up to 60 
days and coincides with the shutdown of the range for clean-up and 
target maintenance. The shutdown period lasts a maximum of 60 days 
within a 90-day period, from April 1 through June 30. Since grazing is 
compressed into this 60-day time period, intensive livestock management 
on Juniper Butte ETR by the Air Force has the potential to impact 
Lepidium papilliferum through increased trampling of slickspot 
habitats, individual plants, and the seed bank, especially when 
slickspot soils are wet (Service, in litt. 2002) (see also discussion 
of tramping above).
    The Air Force's INRMP focuses on avoiding grazing when slickspots 
are wet in order to avoid this potential for trampling slickspot 
habitats. Project 3 of the grazing component plan in the Air Force's 
INRMP provides guidance for annual monitoring of slickspot soil 
moisture to determine livestock turnout dates for Juniper Butte ETR. 
Monitoring of pastures and evaluation of 50 slickspots within each 
occupied area will be evaluated to determine the level of wetness. A 
soil penetrometer is used to determine the load rate the slickspot can 
support before imprintation occurs. The turnout date for livestock will 
be established when the slickspot surface in 75 percent of slickspots 
examined is strong enough to support the age and weight class of the 
cattle to be turned out on the range.
    We believe that the conservation measures outlined in the 
conservation documents (CCA, USAF-INRMP, IDARNG-INRMP) reduce the risk 
of direct impacts of livestock grazing in the short-term and in the 
foreseeable future. We also believe that efforts to establish 
exclosures to protect some L. papilliferum areas from grazing impacts 
represent further reduction in the threat. Effects associated with 
increased organic matter from livestock feces and pollinator impacts 
from grazing are not addressed in the conservation

[[Page 3110]]

documents but their significance is difficult to assess given the lack 
of specific studies on these factors for L. papilliferum. Further, 
measures to reduce grazing in sensitive periods for slickspots and to 
improve fire management will mitigate these potential threats.

Military Training Activities

    Military training activities may result in soil disturbance as a 
result of vehicle maneuvers, increased fire hazards, and continued 
invasions of nonnative plants. Currently military training affects less 
than 2 percent of the known Lepidium papilliferum-occupied habitat and 
does not represent a principal factor in the viability of the species 
and the sagebrush ecosystem. While the effects of soil disturbance from 
military training activities can have serious local effects on 
slickspots, conservation measures that have been in place on the 
Orchard Training Area appear to have essentially eliminated this threat 
from L. papilliferum occurrences on the Training Area. The Air Force 
has implemented measures to reduce the adverse effects of military 
training to achieve its conservation goals for this species. We also 
believe that conservation measures currently in place on both the OTA 
and Air Force facilities to rapidly suppress fires and provide wash 
spots for vehicles to avoid continued invasions of nonnative plants 
greatly reduce the threat of wildfire and nonnative plant invasion 
impacts and provide for the long-term protection of the species from 
the effects of military training activities.
    Lepidium papilliferum occurs on BLM lands within the OTA where the 
IDARNG has been conducting its military training exercises since 1953 
under a Memorandum of Understanding between the two agencies (Quinney 
2000). Other activities, including livestock grazing, are managed 
within the OTA directly by BLM. Over the past 12 years, the IDARNG has 
proactively implemented actions to address the conservation needs of L. 
papilliferum and has conducted extensive monitoring and research on the 
species, while still providing for military training activities. These 
actions include intensive fire suppression efforts, and restriction of 
ground-operated military training and facility construction to areas 
where L. papilliferum is not found. IDARNG has implemented restrictions 
that require all military training activities to avoid sites with L. 
papilliferum and intact sagebrush steppe habitat (IDARNG 2003) on 
Orchard Training Area. IDARNG is currently updating the OTA INRMP that 
proposes to continue numerous conservation measures for L. papilliferum 
associated with IDARNG's military training activities (IDARNG 2003), 
including restricting training exercises in occupied habitat and active 
fire suppression. We are not considering these additional conservation 
measures in this withdrawal determination due to the revised INRMP not 
being finalized. IDARNG continues to annually monitor L. papilliferum 
both independently and in conjunction with ICDC HII monitoring (IDARNG 
    In 2002, the Air Force conducted a complete census of all 
slickspots and Lepidium papilliferum on the Juniper Butte ETR, with the 
exception of an area approximately 667 ac (270 ha) that included the 
primary ordnance impact zone (Air Force 2002a). Of the approximately 
56,500 slickspots recorded during this census (Air Force, in litt. 
2003), approximately 2,450 slickspots were documented as containing L. 
papilliferum plants (Bashore, pers. comm. 2003). Approximately 11,300 
L. papilliferum plants were observed during this census. Only 11 L. 
papilliferum plants were documented as occurring outside of slickspots. 
ICDC has categorized Juniper Butte ETR as one large L. papilliferum 
occurrence based on administrative boundaries and convenience of 
record-keeping. This single large occurrence, which constitutes 84 
percent of the total acreage of all ``B''-ranked occurrences, is 
currently categorized as a ``B''-ranking due to the large number of 
plants observed within fair-to-low quality habitat (ICDC 2003). The Air 
Force has created permanent monitoring transects at Juniper Butte Range 
in 2003, which will be monitored to detect changes in Lepidium 
papilliferum over time (Air Force 2003).
    In the proposed rule, we noted that the Air Force has implemented 
conservation measures to reduce the potential threat to Lepidium 
papilliferum from military training activities (67 FR 46441). During 
the spring, the Air Force (2000, 2002b) suspends training in the 300-ac 
(121-ha) primary ordnance impact area to remove and clean up inert 
training ordnance dropped from jets during training exercises. Soil and 
vegetation disturbance due to this activity would be greatest during 
spring, due to the higher probability that slickspot soils would be wet 
during this period from spring rainstorms. To mitigate adverse affects, 
the Air Force uses lightweight, maneuverable all-terrain vehicles for 
ordnance cleanup activities outside of the primary ordnance impact zone 
to minimize impacts to slickspot habitat (Air Force 2000). The proposed 
rule noted that it is expected that direct impacts due to construction 
and training activities will result in the loss of L. papilliferum 
within the 300-ac (121-ha) primary ordnance impact zone. At this point 
there is no major construction remaining in the primary ordnance impact 
zone and operational impacts are mitigated through the INRMP.
    Although not likely to frequently occur, sparks generated from 
inert ordnance hitting the ground or heat from the use of vehicles and 
other mechanized equipment may also provide an ignition source for 
wildfire, which could impact L. papilliferum. The Air Force has 
identified fire management as a high priority at Juniper Butte ETR, and 
fire fighters are stationed on the range during periods of high fire 
danger (Air Force 2002b). The Air Force has also worked to conserve L. 
papilliferum on the Juniper Butte ETR by moving the proposed locations 
of several industrial complex buildings associated with their military 
training mission prior to construction to avoid slickspots.
    The dropping of inert bombs within the 300-ac (121-ha) primary 
ordnance impact zone at Juniper Butte ETR during military training 
exercises could also impact Lepidium papilliferum by disturbing 
slickspot soils and crushing individual plants. A 2002 survey of the 
primary ordnance impact zone and associated buffer areas located 147 L. 
papilliferum plants (CH2MHill 2002). Potential impacts to L. 
papilliferum from dropping of bombs on slickspots are considered to be 
localized and minimal as the Air Force intends to use only 300 ac (121 
ha), or 2.5 percent of the entire 12,000-ac (4,856-ha) Juniper Butte 
ETR, as the actual bombing impact area (Air Force 2000).


    Currently the threat of military training activities does not 
represent a principal factor in the viability of the species and the 
sagebrush ecosystem in the foreseeable future. Both the IDARNG and Air 
Force are implementing various conservation measures to avoid or reduce 
adverse effects of military training on the species and its habitat. We 
believe that these measures will continue to mitigate adverse effects 
in the foreseeable future associated with military training and 
consider this threat to be localized and minimal, with little 
significance across the range of the species.

[[Page 3111]]

Residential and Agricultural Development

    Residential and agricultural development threatens slickspot 
habitat through habitat conversion, increased nonnative plant 
invasions, increased wildfire. Currently the threat affects less than 5 
percent of the known occupied Lepidium papilliferum habitat and does 
not represent a principal factor affecting the species. While the 
effects of the direct loss of slickspot habitat can be locally severe, 
we believe that this represents a small portion of the total known 
range of the species. There are currently two conservation agreements 
for L. papilliferum on non-Federal lands in addition to those discussed 
in this final determination.
    In the proposed rule, we noted the long-term viability of some 
Lepidium papilliferum occurrences on private land was threatened due to 
the continuing expansion of residential developments in and around 
Boise (67 FR 46441). However, only 3 percent of the total known 
occupied L. papilliferum habitat occurs on private land totaling 626 ac 
(253 ha) (Moseley 1994; ICDC 2003).
    Development of adjacent private land may also threaten at least 
four Lepidium papilliferum occurrences on BLM land (Mancuso 2000). 
However, the CCA provides for requirements that right-of-way holders 
contact the BLM before undertaking land disturbing activities in 
occupied and suitable habitat. BLM is also increasing patrols to 
improve adherence to access management requirements and to discourage 
trespass (CCA, in litt. 2003). Specific area requirements include 
avoiding all occupied habitat and disturbance to suitable habitat in 
ground moving projects, constructing temporary and permanent project 
fencing, and requiring rehabilitation and restoration to suitable 
habitat in ground-moving projects (CCA 2003; page 35).


    Residential and agricultural development potentially affects only 3 
percent of the known occupied Lepidium papilliferum habitat. While the 
direct impact of residential and agricultural development may be 
locally significant, they are a minor threat over the species' range. 
We believe that the conservation measures identified in the CCA (2003) 
will reduce the effects road development and maintenance on public 
lands from associated future development of private lands.

Gravel or Cinder Mining

    Gravel and cinder mining may encourage increased nonnative plant 
invasions due to increased access of Off-Highway Vehicles and mining 
equipment. Currently gravel or cinder mining operations affect 
approximately 3 percent of the known Lepidium papilliferum-occupied 
habitat and do not represent a principal factor in the status of the 


    The CCA identifies conservation actions for element occurrences 21 
and 51 to address restoration of slickspot habitat if degradation is 
found to be associated with authorized uses, including the 
rehabilitation associated with cinder and gravel mining operation (CCA, 
in litt. 2003; page 109). BLM will increase the frequency of compliance 
inspections associated with land use permits in occupied and suitable 
habitat areas (CCA, in litt. 2003; Conservation Measure 25), and the 
BLM and law enforcement cooperators will increase law enforcement 
patrols to discourage trespass (CCA, in litt. 2003; Conservation 
Measure 26). Other conservation measures on Federal and State lands 
through the CCA will reduce future direct and indirect (i.e., nonnative 
plant invasion) effects of mining on the species. Overall this factor 
can be locally significant but it is considered of minor importance 
across the species' range given the conservation measures in place.

Recreational Use

    The threat of recreational activities encompasses nonnative plant 
invasions, increased wildfires, and direct soil disturbance. 
Recreational activities occur across most of the range of Lepidium 
papilliferum. An exception is Juniper Butte ETR, which is protected 
from recreational activities due to existing military installation 
restrictions. The direct effects of recreational activities are 
relatively minor due the small percent of habitat affected by these 
activities. The indirect effects of Off-Highway Vehicle use, such as 
nonnative plant invasions and wildfire, are more significant (see 
discussion of wildfire above).
    Operation of motorized vehicles off established roads and trails 
has been identified as a potential threat to Lepidium papilliferum and 
slickspot habitats (ILPG, in litt. 1999). Examples of such vehicles 
include ORVs such as recreational all-terrain vehicles and motorcycles, 
pickup trucks, vehicles associated with fire suppression activities, 
water-hauling trucks, and military training vehicles. Vehicles may 
spread nonnative plant seeds (Gelbard and Belnap 2003) by transporting 
them in tire treads or vehicle undercarriage from weed-infested areas 
to slickspots containing L. papilliferum. Motorized vehicles may also 
disturb slickspot soils and damage L. papilliferum habitat and seed 
banks, particularly when these areas are wet (ILPG, in litt. 1999). In 
dry periods, heat generated from vehicle operation may ignite fine 
fuels such as cheatgrass, causing wildfires that could impact L. 
papilliferum (ILPG, in litt. 1999).


    The conservation measures in the CCA (in litt, 2003) include BLM 
actions to provide additional educational resources to recreationists 
on invasive weeds, provide voluntary OHV wash points to prevent the 
further spread of invasive weeds, and increase OHV compliance 
inspections, among other requirements. The conservation measures reduce 
the threat of future non-native plant invasions and direct soil 
disturbance to slickspots as a result of recreational activities.
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes. The plant is not a source for human food, nor is 
it currently of commercial horticulture interest. There is no evidence 
that commercial, recreational, scientific, or educational harvest or 
use of Lepidium papilliferum represents a significant threat to the 
species. Overutilization was not identified in the proposed rule as a 
specific threat to L. papilliferum (67 FR 46441), and is not considered 
to be a threat at this time.
    C. Disease or Predation. The threat of disease or predation is 
extremely low for this species. Consumption of Lepidium papilliferum by 
livestock appears to be low, and also appears to be infrequent by other 
herbivores (Popovich 2001). An Air Force survey documented limited 
observations of cattle herbivory on a few L. papilliferum plants; 
however, this has not been confirmed (Air Force 2002a). Spring-grazing 
sheep have been observed to uproot L. papilliferum plants on the OTA. 
Since L. papilliferum is apparently unpalatable, sheep rarely consume 
the plants but simply pull them from the ground incidentally while 
foraging, killing the plants (D. Quinney and J. Weaver, pers. comm. 
1998). Animals kept from grazing for relatively long periods, such as 
during transport, may consume L. papilliferum after they have been 
turned out (OSC, in litt. 2002).
    Herbivory by rodents and beetles has been observed on Lepidium 
papilliferum plants. For example, numerous plants did not survive to 
set seed at one L. papilliferum occurrence

[[Page 3112]]

due to high levels of rodent damage (BLM, in litt. 2002a). At another 
location, some plants were nearly defoliated and may have been killed 
by beetle herbivory (M. Mancuso, in litt. 1998; Robertson 2003). We are 
unaware of any specific studies documenting foraging on Lepidium 
papilliferum by Mormon crickets. We do not consider herbivory by 
rodents or insects to be a major threat to the species at this time. 
Impacts to L. papilliferum from large native ungulates such as elk or 
antelope have not been documented.
    There is insufficient information to indicate that disease or 
predation represents a threat to Lepidium papilliferum. Disease or 
predation were not identified in the proposed rule as a threat to the 
species (67 FR 46441), and is not considered a threat at this time.
    D. The Inadequacy of Existing Regulatory Mechanisms. While 
inadequate protection by way of existing regulatory mechanisms was a 
significant factor in our decision to propose this species for listing, 
developments since our proposal have addressed many of these 
inadequacies. The section ``Certainty of Implementation further 
discusses the conservation efforts that are underway or are expected to 
occur as a result of the conservation agreements and plans that have 
been entered into by various parties. These efforts contribute 
significantly to the adequacy of existing regulatory mechanisms.
    Lepidium papilliferum is considered to be rare and imperiled at the 
global and State scale (G2/S2 rating) by the Idaho Natural Heritage 
Program (ICDC 2002). Idaho has no endangered species legislation that 
protects threatened or endangered species.
    Lepidium papilliferum is considered a sensitive species by the BLM 
(ICDC 2002). BLM typically surveys proposed project areas for special 
status species, including Lepidium papilliferum, within habitats 
capable of supporting the species as part of the NEPA process for 
actions that may impact the species or its habitat. The CCA entered 
into by BLM puts into place many additional measures to conserve the 
species on BLM lands. In any area that could support L. papilliferum 
BLM will strive to conserve remaining stands of sagebrush or native 
vegetation in making land management and project level decisions (CCA, 
in litt. 2003; Conservation Measure 26), train permittees on species 
and habitat recognition (CCA, in litt. 2003; Conservation Measure 30), 
conduct periodic compliance inspections during soil disturbance 
projects and increased inspections during use periods to prevent 
impacts on occupied and suitable habitat (CCA, in litt. 2003; 
Conservation Measure 31), require that all authorizations contain weed 
control measures (CCA, in litt. 2003; Conservation Measure19), complete 
botanical surveys for the species and its habitat prior to authorizing 
herbicide use (CCA, in litt. 2003; Conservation Measure 24), increase 
the frequency of compliance inspections associated with land use 
permits (CCA, in litt. 2003; Conservation Measure 20), require that new 
renewing or amending right of way holders establish 40-60 percent 
perennial cover after all ground disturbing activities (CCA, in litt. 
2003; Conservation Measure 27), require new, renewing or amending right 
of way holders to contact BLM before conducting ground disturbing 
activities (CCA, in litt. 2003; Conservation Measure 28), and authorize 
organized recreational activities only in areas outside occupied or 
suitable habitat. These commitments will significantly increase the 
regulatory protection offered to Lepidium papilliferum and its habitat.
    The Air Force has recently updated Integrated Resource Management 
Plans that contain specific conservation measures for L. papilliferum, 
further improving the adequacy of existing regulatory mechanisms. 
Compliance with conservation measures in the INRMP is mandatory for all 
Air Force and contractor personnel, including lessees. The INRMP 
contains such measures as use restrictions for herbicides, protect 
habitat by restricting OHV use, restrict activities to reduce fire 
hazards, implement fire management strategies to reduce impacts to 
slickspots, use only noninvasive plant materials, use native plants to 
the maximum practical extent, use drill seeders equipped with depth 
bands to avoid unnecessary disturbance, control noxious weeds, avoid 
gathering and trailing cattle when soils are wet, delay turn out until 
soils are firm, delay movement between pastures when soils are wet, 
avoid livestock use inside enclosures, use existing roads for grazing-
associated activities, use adaptive management to adjust the grazing 
    Conservation measures implemented through the CCA and INRMP, 
together with the measures being implemented by the IDARNG, which 
currently manages to conserve the species, apply to approximately 97 
percent of the Lepidium papilliferum-occupied habitat. These 
conservation measures significantly reduce the threat of inadequate 
regulatory mechanisms.
    E. Other natural or manmade factors affecting its continued 
existence. Because the majority of Lepidium papilliferum occurrences 
are extremely small, local extirpation of isolated and scattered 
occurrences is a factor affecting this species.
    The proposed rule stated that less than 5,550 ac (2,246 ha) of high 
quality (with ``A''-ranked occurrences) potential habitat existed for 
this species which may not be adequate to ensure long term persistence 
of L. papilliferum. New data and new conservation measures since the 
proposed rule have led us to a different conclusion. First, the 
estimate of A-ranked occurrences is now 6,596 ac ( 2,669 ha), which 
represents an increase over the acreage estimate in the proposed rule 
which is attributed mostly to the upgrading of occurrence 58 from 
``B''-ranked to ``A''-ranked in the 2002 field season. Second, 
implementation of new conservation measures, primarily through the CCA, 
reduce threats with a special emphasis on those occurrences that are 
considered priority. These priority occurrences which we believe are 
most important to the long term viability of the species include many 
of the ``A''-ranked occurrences that have more aggressive conservation 
measures to promote long-term persistence, and they are well 
distributed across the range of the species.
    Approximately 67 percent of all ``A''-ranked occurrences are 
located within two occurrences on the Orchard Training Area, where 
management is ongoing to conserve the species. Further, the amended Air 
Force INRMP addresses approximately 3630 ha (8970 ac) on the Juniper 
Butte Range. This occurrence is ranked as a B quality habitat. The 
proposed rule erroneously identified this area as having a C ranking 
(CCA, in litt. 2003). Additional conservation measures for this area 
resulting from the revised INRMP allow us to conclude that this area 
can effectively contribute to the conservation of Lepidium 
papilliferum, and therefore sufficient habitat likely does exist for 
the long-term persistence of the species.


    There is a general lack of information about the effects of habitat 
fragmentation, on L. papilliferum. The conservation documents address 
this in part by requiring all cooperators to use native species in seed 
mixes during wildfire rehabilitation. Likewise, the adaptive management 
strategies for the conservation efforts provide means to adjust land 
uses and/or conservation measures as appropriate to address

[[Page 3113]]

other issues that affect the ability of L. papilliferum to replenish 
its seedbank.

Certainty of Implementation of Formalized Conservation Efforts

    There are numerous formalized conservation efforts, within 5 
different formalized plans, designed to reduce threats and promote the 
long-term viability of Lepidium papilliferum and its habitat. The 
primary formalized plan discussed below, the CCA, was completed in 
December of 2003 by the BLM, State of Idaho, IDARNG, and livestock 
permittees. As part of the CCA, several private landowners entered into 
MOUs with the State of Idaho committing to conservation efforts on 
approximately 17,000 acres of private land. The conservation efforts 
contained within the CCA were considered in our analysis of the status 
of the L. papilliferum. In recent years the BLM has initiated efforts 
to conserve the species and the recent CCA represents a major 
commitment on behalf of this federal land manager that accounts for 
approximately 50 percent of the known range of the species. We are 
confident in the interest and commitment of all parties to the CCA and 
the Air Force INRMP.
    The IDARNG has operated the OTA under its INRMP for several years 
and also committed to conservation measures as outlined in the CCA. As 
IDARNG is party to the CCA, IDARNG's responsibilities in implementation 
of the CCA are considered in this analysis of certainty of 
implementation and effectiveness. In addition, the IDARNG is in the 
process of updating its existing INRMP, to strengthen the conservation 
measures for the species. The conservation efforts under the existing 
INRMP are considered in the following analysis of the certainty of 
implementation or effectiveness as they have already been implemented 
and shown to be effective. However, the update to the INRMP has not yet 
been formalized. Therefore, those updates will not be considered as 
contributing to the improved status of the species.
    The Air Force has managed the Juniper Butte Training Range under 
the Mountain Home Air Force Base INRMP since establishment of the range 
in 2000. The Air Force recently completed the update to its INRMP to 
strengthen the conservation efforts for the species. The revised INRMP, 
in Appendix A, contains component plans including a plan for vegetation 
and grazing. The vegetation component plan is new in this revised INRMP 
and describes additional details about long-term monitoring of 
vegetation, rehabilitation after fire, fuel build-up prevention 
methodology, noxious weed identification and control, and Lepidium 
papilliferum survey and monitoring for permanent plots. Thus, its INRMP 
is considered in our analysis of the status of L. papilliferum.
    Many of the provisions in both the Air Force and IDARNG INRMPs are 
continuations or upgrades to existing conservation programs. Therefore 
a funding, regulatory, and implementation framework already exists for 
implementation of measures on lands covered by INRMPs. Both the Air 
Force and IARNG have demonstrated commitment to conserving the species 
as they have been implementing their INRMPs since 2000 and 1987, 
respectively. The Air Force manages approximately 44 percent of the 
known species occurrence acreage and the IDARNG manages approximately 
19 percent of the known species range.
    Considering the formalized conservation efforts as outlined in the 
CCA and the Air Force INRMP, we used the following criteria from PECE 
to direct our determination of the certainty that the conservation 
efforts will be implemented. As there are hundreds of conservation 
efforts described in these formalized plans, the following is a summary 
of information contained within the plans.
    1. The conservation effort, the parties to the agreement or plan 
that will implement the effort, and the staffing, funding level, 
funding source, and other resources necessary to implement the effort 
are identified. The parties to the CCA are clearly described in chapter 
1 of the CCA. The parties include BLM, State of Idaho, IDARNG, and 
livestock permittees. As part of the CCA, several private landowners 
entered into MOUs with the State of Idaho committing to conservation 
efforts on private land. The Implementation Schedule for Conservation 
Measures, table 2, in chapter 20 of the CCA outlines the cost for each 
conservation measure and identifies those that are ongoing and part of 
base funding.
    The Air Force INRMP has been implemented since 2000 has a 
demonstrated successful implementation of conservation measures. 
Chapter 6 of the INRMP identifies the parties necessary to implement 
each of the conservation measures and a January 9, 2004, memorandum to 
the Service states that ``compliance with conservation measures in the 
INRMP are mandatory for all Air Force and contractor personnel, 
including lessees (Air Force 2004 in. litt.).'' The memorandum also 
states ``Air Combat Command has funded conservation measures for fiscal 
year 2004 and has validated our conservation budget requirements for 
fiscal years 2005-2011.'' Of the 80 conservation efforts specific to 
Lepidium papilliferum conservation in the INRMP, 78 are on-going and 
considered already funded and implemented. The remaining two measures 
were developed explicitly for the 2004 INRMP. The Air Force memorandum 
of January 9, 2004 (Appendix P to the INRMP) identifies INRMP projects 
by fiscal year, required funding, and headquarters validation of 
funding high priority for all conservation measures.
    Under their INRMP, the IDARNG has been successfully implementing 
actions benefiting Lepidium papilliferum since 1991 and is a cooperator 
in the CCA. Staffing needs for the CCA are sufficiently addressed by 
the INRMP. Appendix 7.6 lists specific projects required to implement 
the INRMP, and also includes requested funding for these activities. 
Many of the L. papilliferum conservation measures in the INRMP are 
ongoing and already funded through base funding.
    2. The legal authority of the parties to the agreement or plan to 
implement the formalized conservation effort, and the commitment to 
proceed with the conservation effort are described. All authorities of 
all parties to the CCA and Air Force INRMP are spelled out. The CCA 
under chapter 1 outlines authorities for the Office of Species 
Conservation, Idaho Department of Fish and Game, Idaho Department of 
Lands, IDARNG, and the BLM to implement the agreement, including the 
following. Title 67, section 818 of the Idaho Code provides the Office 
of Species Conservation the authority to negotiate and enter into 
conservation agreements between the State and Federal governments and 
private entities. Title 18, section 3913 of the Idaho Code grants the 
Idaho Department of Fish and Game the authority to protect plants of 
conservation concern, such as Lepidium papilliferum. The Idaho 
Constitution provides the Department of Lands the authority to manage 
State lands. The Federal Land Policy and Management Act (FLPMA, 43 
U.S.C. 1737) provides the BLM with the authority to manage and conserve 
BLM-administered lands and allows the BLM to participate in 
conservation agreements. The IDARNG currently has the authority to 
implement the CCA through their existing INRMP as required by the Sikes 
Act (16 U.S.C. 670). In addition, Army Regulation (AR) 200-3 further 
provides IDARNG the authority for implementing the CCA and encourages 

[[Page 3114]]

development of candidate management plans and to participate in 
conservation agreements with the Service.
    Likewise, the INRMP for the Air Force specify various legal 
authorities to implement their plans, including the following. The 
Sikes Act provides for cooperation by the Departments of Interior and 
Defense with State agencies in planning, development and maintenance of 
fish and wildlife resources on military reservations throughout the 
United States. Section 9 of the Sikes Act Improvement Amendments states 
that the INRMP shall reflect the ``mutual agreement'' of the Service 
and State fish and wildlife agency.
    In addition the legal authorities described above, implementing 
regulations and policies further describe State and Federal authorities 
for implementing the conservation efforts described in the CCA 
(chapters 1 and 9) and Air Force INRMP (Chapter 1).
    3. The legal procedural requirements necessary to implement the 
effort are described, and information is provided indicating that 
fulfillment of these requirements does not preclude commitment to the 
effort. The conservation efforts that require additional procedure 
requirements prior to implementation, such as environmental review and 
compliance with National Environmental Policy Act (NEPA), are spelled 
out in the CCA Chapter 20, Table 2. The majority of the 207 
conservation actions do not require additional environmental review. 
However, the CCA in the Implementation Schedule for Conservation 
Measures describes approximately 50 conservation actions out of 207 
that will have environmental review through NEPA prior to 
    The rangewide conservation measures provide the most conservation 
coverage of the conservation measures in the CCA. Only one of the 
rangewide conservation measures, establish firebreaks, requires NEPA 
compliance before implementation. The remainder of the conservation 
measures within the CCA that require NEPA compliance are for changes to 
allotment plans or grazing management. These changes will be reviewed 
under NEPA. However, grazing related measures such as conservation 
measure 5.14, no trailing cattle through element occurrences within the 
management area when soils are saturated, are implemented within the 
confines of existing grazing permits and does not require NEPA 
compliance. The vast majority of the conservation measures in the Air 
Force INRMP are on-going actions that have been either previously 
reviewed under NEPA or do not require NEPA compliance or related 
environmental review.
    4. Authorizations necessary to implement the conservation effort 
are identified, and a high level of certainty is provided that the 
parties to the agreement or plan that will implement the effort will 
obtain these authorizations. The Explanation of Conservation Measures 
(chapter 9) and the Implementation Schedule (chapter 20, table 2) 
within the CCA describe the procedural requirements and schedule to 
complete the procedural requirements necessary to implement individual 
conservation efforts. Most of these procedural requirements have been 
completed. For instance, the BLM in January 2004, distributed various 
instruction memoranda as called for in the CCA establishing 
requirements for activities including general management requirements 
for activities in Lepidium papilliferum habitat and emergency 
stabilization and fire rehabilitation requirements for activities in 
Lepidium papilliferum habitat. The CCA schedules additional BLM 
instruction memoranda to be issued by May 2004. Several of these are 
rangewide conservation measures to be addressed in the upcoming 
instruction memoranda, such as measures .01, .03., and .05 (chapter 9 
of the CCA, in litt. 2003), that are already being implemented by the 
BLM. In addition, Congress has urged BLM to implement the CCA, see H.R. 
2673, 108th Cong. (2003). The Air Force does not need to complete any 
additional procedural requirements for implementation of their INRMP 
and have commenced implementation of its conservation efforts.
    5. The type and level of voluntary participation necessary to 
implement the conservation effort is identified, and a high level of 
certainty is provided that the parties to the agreement or plan that 
will implement the conservation effort will obtain that level of 
voluntary. Though a specific level of landowner participation is not 
needed to ensure success of the CCA, currently, several BLM livestock 
permmitees have already agreed to implement conservation measures as 
identified in the CCA. As of December 2003, there are six enrolled 
private land owners have signed MOUs with the State of Idaho 
implementing conservation efforts on their private property. The MOUs 
are the vehicle by which the private entities participate in the CCA. 
Given the dedication of landowners in collaborating in development of 
the CCA, we expect full implementation of those efforts.
    The expected benefits of participating in CCA implementation are 
described in chapter 11 of the CCA. The BLM has the authority via 
grazing permits to assure compliance with the associated conservation 
measures detailed in the CCA, regardless of participation by the 
permittee in the CCA. In addition, the private entities participate in 
implementation of the CCA through other actions such as, report survey 
information to CDC (see chapter 20 of the CCA, in litt. 2003). The 
necessary voluntary participation will take place as described in the 
CCA given the understood benefits and the commitment expressed by the 
private landowners.
    Implementation of the Air Force INRMP does not require voluntary 
participation. A memorandum from the Air Force to the Service, dated 
January 9, 2004, states that compliance with the conservation efforts 
in their INRMP is mandatory.
    6. Regulatory mechanisms necessary to implement the conservation 
effort are in place. No additional regulatory mechanisms, beyond what 
is currently in place, are necessary to implement the conservation 
efforts in the CCA or the Air Force INRMP.
    7. A high level of certainty is provided that the parties to the 
agreement or plan that will implement the conservation effort will 
obtain the necessary funding. Of the 207 Management Area conservation 
measures, 132 are funded through state or BLM base funding, will have 
no additional cost associated with it, or will be funded by a seasonal 
user/permit holder. Thus, securing additional funding will not be 
needed to implement those measures. The remaining conservation 
measures, specifically those concerning BLM, the agency has requested 
funding through its out-year programming as stated in a December 11, 
2003 memorandum from the Office of Species Conservation on behalf of 
the CCA Steering Committee. Moreover, BLM, OSC, and Idaho Department of 
Fish and Game, Conservation Data Center, have entered into a challenge 
cost share proposal for monitoring existing occurrences for the 2004 
fiscal year. The BLM's appropriation language for fiscal year 2004 
stated that the BLM will implement the measures contained in the CCA 
[H.R. 2673, 108th Cong. 2003]. The BLM has submitted funding requests 
for 2005 through the budget planning system and have ranked 
implementation of the CCA as high. The parties have fully described the 
resources necessary to implement the conservation measures and that 
funding is either already in place or has been

[[Page 3115]]

requested according to the CCA and the Air Force INRMP such that 
implementation of the conservation efforts is proceeding.
    8. An implementation schedule for the conservation effort is 
provided. The implementation schedule is provided in chapter 20 of the 
CCA. The schedule discusses project coordination and funding, and 
specifically lays out a description of the action, the responsible 
party, and year-by-year cost projections out to the year 2008. The Air 
Force INRMP has specific objectives with dates identified in many 
cases, while keeping the focus on implementation and effectiveness 
monitoring of those actions than on quantitative incremental 
objectives. The Air Force memorandum of January 9, 2004 (Appendix P to 
the INRMP) outlines validated and funded projects by fiscal year 
through 2011.
    9. The conservation agreement or plan, which includes the 
conservation effort, is approved by all parties to the agreement or 
plan. As of December 5, 2003, all parties to the CCA have signed the 
agreement. The Air Force signed their INRMP on January 15, 2004.


    As evidenced by actions underway and expected by the parties to the 
CCA and Air Force INRMP, we have received sufficient assurance that the 
long term viability of Lepidium papilliferum has improved since the 
proposed rule. In addition, in an Instruction Memorandum dated January 
8, 2004, the BLM District Manager directs compliance with all 
requirements of the CCA. A memorandum from the Air Force to the 
Service, dated January 9, 2004, states that compliance with the 
conservation efforts in their INRMP is mandatory for all Air Force and 
contractor personnel, including lessees. Thus, we have been provided 
the assurance that these conservation efforts will be implemented.

Certainty of Effectiveness of Formalized Conservation Efforts

    Considering the formalized conservation efforts as outlined in the 
CCA and the Air Force INRMP, we used the following criteria from PECE 
to direct our determination of the certainty that the conservation 
efforts will be effective. Our analysis of the effectiveness of the 
conservation efforts is reflected above in the ``Summary of Factors 
Affecting the Species.'' As there are hundreds of conservation efforts 
described in these formalized plans, the following is a summary of 
information contained within the plans.
    1. The nature and extent of threats being addressed by the 
conservation effort are described, and how the conservation effort 
reduces the threats is described. The CCA and Air Force INRMP address 
the nature and extent of threats including wildfire, livestock grazing, 
recreational use, mining, military training activities, residential and 
agricultural development. These conservation plans apply a variety of 
conservation actions and provide descriptions about how the action 
reduces the threat. For example, the CCA requires BLM to implement a 
variety of actions to reduce the risk of wildfire ranging from fuel 
breaks to increased fire suppression crews and resources. How each 
threat is specifically addressed by the conservation efforts, is 
described in detail in the above ``Summary of Factors Affecting the 
    We have sufficient assurance that the conservation efforts have 
reduced threats over most of the range of the species. We believe that 
the conservation efforts will reduce the risk of fires in the 
foreseeable future within the range of the species. It will be 
important to implement the adaptive management strategy to ensure the 
conservation of Lepidium papilliferum, to account for changing 
circumstances, and improve the conservation measures, as further 
studies are conducted. We also believe that measures related to the 
threat of livestock trampling lead to a reduction of this threat. 
Nonnative plant invasions of the sagebrush steppe ecosystem will be 
mitigated by the conservation efforts but not eliminated as they will 
likely continue to be a part of the ecosystem given the inherent 
difficulties of reversing this trend.
    2. Explicit incremental objectives for the conservation effort and 
dates for achieving them are stated. The conservation efforts take 
variable approaches in the development and accomplishment of 
objectives. For example, chapter 20 of the CCA outlines expected 
benefits of the conservation measures and provides a detailed 
implementation schedule with dates for when actions will be 
accomplished. The Air Force INRMP has specific objectives with dates 
identified in many cases. Given the long-term nature of these plans and 
the ongoing actions identified in the INRMP, the focus is on 
implementation of the specific actions and effectiveness monitoring of 
those actions.
    3. The steps necessary to implement the conservation effort are 
identified in detail. Both the CCA (chapter 9) and the Air Force INRMP 
detail the steps necessary for the accomplishment of conservation 
actions. In general, the conservation documents outline objectives to 
be accomplished, actions necessary to accomplish objectives, monitoring 
strategies, and adaptive management to ensure that the conservation 
efforts are responsive to new information and changed circumstances.
    4. Quantifiable, scientifically valid parameters that will 
demonstrate achievement of objectives, and standards for these 
parameters by which progress will be measured, are identified. Given 
the limited scientific data available for Lepidium papilliferum, the 
conservation efforts take a reasonable approach to measuring progress 
towards achievement of objectives. In general, the conservation efforts 
are designed to incorporate new research findings, which will provide 
the basis for establishing quantifiable, scientifically valid 
parameters as more is learned about plant and its habitat. Chapter 21 
of the CCA describes its adaptive management commitments, including 
implementation of measures specifically designed to achieve 
conservation objectives.
    5. Provisions for monitoring and reporting progress on 
implementation and effectiveness of the conservation effort are 
provided. In general, the CCA and the Air Force INRMP identify how 
implementation monitoring will occur and how results of monitoring will 
be used to evaluate effectiveness of the efforts in conserving Lepidium 
papilliferum. The CCA provides very detailed implementation schedules 
in chapter 20, table 2. The effectiveness of conservation actions at 
achieving desired outcomes is determined through monitoring. For 
example, the effectiveness monitoring table (chapter 21, table 5) in 
the CCA describes performance metrics for evaluating conservation 
actions and describes quantitative triggers and an associated 
management response that will occur if conservation actions are not 
achieving desired outcomes. For some conservation actions in the CCA, 
development of quantitative triggers will require additional technical 
analysis and will be completed by June 2004.
    The Air Force INRMP, page A-10, describes Project 5, ``Slickspot 
Peppergrass Monitoring of Permanent Plots.'' The purpose of monitoring 
permanent plots is to provide data for adaptive management of the 
species. Five permanent Lepidium papilliferum plots were established on 
Juniper Butte Training Range in 2003. Transects were sited to help 
monitor the effect of two large scale land uses on the site:

[[Page 3116]]

biomass removal for fire prevention by grazing and delivery of training 
ordnance. Transects will be monitored annually to assess changes in 
habitat conditions and L. papilliferum count changes as influenced by 
management techniques, natural processes, and other biotic and non-
biotic influences. A weather station has been established on the site 
to more fully understand the role weather plays in L. papilliferum 
biology. The Air Force INRMP states that more accurate weather data and 
better interpretation of monitoring results will aid in adaptive 
management decisions. Project 3 of the Air Force INRMP, ``Noxious Weed 
Control and Monitoring'', also addresses annual surveys and monitoring 
to prevent noxious and invasive species spread. Project 2 of the INRMP, 
``Rehabilitation after Fire/Fuel Build-up Prevention Methodology'', 
states that adaptive management and monitoring techniques are used to 
help determine the optimal blend of fire control and biodiversity 
management practices necessary to meet overall goals, including L. 
papilliferum. This more general approach is not considered problematic 
for assuring success in accomplishing conservation of L. papilliferum.
    6. Principles of adaptive management are incorporated. Principles 
of adaptive management are incorporated to varying degrees with the CCA 
describing in the most detail the how new information and changed 
circumstances will be addressed. The CCA describes the adaptive 
management pathway: (1) Triggers to determine if there is a significant 
difference between expectations and results; (2) an evaluation of 
relevance of the differences; (3) an evaluation of causal linkage; and 
(4) development and implementation of a management response thus 
completing the feedback loop. The adaptive management in the Air Force 
INRMP, as largely contained in Appendix A, describes monitoring and 
feedback loops necessary to ensure success in accomplishing 
conservation for Lepidium papilliferum.


    We have sufficient assurances that the conservation efforts have 
reduced threats over most of the range of the species. We believe that 
the conservation efforts will reduce the risk of fires in the 
foreseeable future within the range of the species. It will be 
important to implement the adaptive management strategy to ensure the 
conservation of Lepidium papilliferum, to account for changing 
circumstances and improve the conservation measures, as further studies 
are conducted. We also believe that measures related to the threat of 
livestock trampling lead to a reduction of this threat. Nonnative plant 
invasions of the sagebrush steppe ecosystem will be mitigated by the 
conservation efforts given the inherent difficulties of reversing this 

Finding and Withdrawal

    Based on a through additional analysis of the best available 
scientific and commercial information available on Lepidium 
papilliferum, and recent advancements in formalized conservation 
efforts for the species, particularly those implemented through the 
CCA, we have changed our conclusion about the risk to the species. As a 
result, we believe that the species no longer is in danger of 
extinction throughout all or a significant portion of its range, nor is 
it likely to become endangered within the foreseeable future.
    Conservation measures implemented through the CCA and existing 
INRMPs apply to approximately 97 percent of the Lepidium papilliferum 
occupied habitat. In addition, the Air Force recently updated their 
INRMP to contain additional conservation measures and monitoring 
specifics (vegetation, Lepidium papilliferum, grazing, noxious weed and 
invasive species) for L. papilliferum, further reducing threats to the 
species. In addition the CCA and INRMPs have research and adaptive 
management components that will improve our understanding of L. 
papilliferum ecology and its conservation needs in the future and 
provide a mechanism for adjusting management to account for changed 
circumstances. This information will better help in our future 
conservation efforts for L. papilliferum.
    Furthermore, since the proposed rule to list Lepidium papilliferum 
as endangered was published, information from the ICDC indicates that 
the total area of habitat containing slickspots known to be occupied by 
L. papilliferum and interspersed with surrounding unoccupied sagebrush-
steppe habitat is approximately 20,500 ac (8,300 ha). This represents 
an increase of 8,154 ac (3,300 ha) from the area of occupied habitat 
reported in the proposed rule. Area estimates in the proposed rule were 
based on ocular (by eyesight) estimates of the area of known 
occurrences, while area estimates in this final determination are based 
on high-precision GIS data provided by ICDC. In addition, five new 
occurrences of L. papilliferum have been documented within the range of 
the species since the proposed rule was published.
    This withdrawal of the proposed rule to list Lepidium papilliferum 
as endangered is based on our conclusion that there is a lack of strong 
evidence of a negative population trend, and the conservation efforts 
contained in formalized plans have sufficient certainty that they will 
be implemented and will be effective such that the risk to the species 
is reduced to a level below the statutory definition of endangered or 
threatened. Therefore, we are withdrawing the proposed determination to 
list L. papilliferum as endangered.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from our Snake River Fish and Wildlife Office 
(see ADDRESSES section).


    The primary author of this final determination is U.S. Fish and 
Wildlife Service, Snake River Fish and Wildlife Office (see ADDRESSES 


    The authority for this action is section 4(b)(6)(B)(ii) of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: January 15, 2004.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 04-1295 Filed 1-21-04; 8:45 am]