[Federal Register: August 22, 2006 (Volume 71, Number 162)]
[Proposed Rules]               
[Page 48900-48903]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 48900]]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; 90-Day Findings 
for Petitions To Delist the Island Night Lizard

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of two 90-day petition findings and initiation of a 
status review for the 12-month finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce 90-
day findings for two petitions to remove the island night lizard 
(Xantusia riversiana) from the Federal List of Endangered and 
Threatened Wildlife and Plants pursuant to the Endangered Species Act 
(Act). We find that one of the petitions presents substantial 
scientific or commercial information indicating that delisting may be 
warranted, and we are therefore initiating a status review. We are 
requesting submission of any new information on the island night lizard 
since its original listing as a threatened species in 1977. Following 
this status review, we will issue a 12-month finding on the petition to 

DATES: The findings announced in this document were made on August 22, 
2006. To be considered in the 12-month finding on the delisting 
petition, comments and information should be submitted to us by October 
23, 2006.

ADDRESSES: Submit comments, information, and questions to the Field 
Supervisor, Attention: Island Night Lizard Comments, U.S. Fish and 
Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, California 92009 (fax: 760-431-9618).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, at the 
above address (telephone: 760-431-9440).



    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial information to indicate the 
petitioned action may be warranted. To the maximum extent practicable, 
we must make the finding within 90 days of receiving the petition, and 
must promptly publish the finding in the Federal Register. If we find 
substantial information exists to support the petitioned action, we are 
required to promptly commence a status review of the species (50 CFR 
424.14). ``Substantial information'' is defined in 50 CFR 424.14(b) as 
``that amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted.'' 
Petitioners need not prove that the petitioned action is warranted to 
support a ``substantial'' finding; instead, the key consideration in 
evaluating a petition for substantiality involves demonstration of the 
reliability and adequacy of the information supporting the action 
advocated by the petition.
    The factors for listing, delisting, or reclassifying a species are 
described at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction, (2) recovery, and/or (3) a determination 
that the original data used for classification of the species as 
endangered or threatened were in error.
    On July 7, 2005, we initiated a 5-year review of the island night 
lizard as required under section 4(c)(2)(A) of the Act. Pursuant to the 
terms of a settlement agreement in California State Grange, et al. v. 
Norton, No: 2:05-cv-00560-MCE-PAN (E.D. California), we will be 
completing that review by September 30, 2006. A status review is 
required for both the 5-year review and the 12-month finding. These 
reviews may utilize similar information and analyses. At the conclusion 
of these reviews, we will issue the 12-month finding on the petition, 
as provided in section 4(b)(3)(B) of the Act, and make the requisite 
recommendation under section 4(c)(2)(B) of the Act based on the results 
of the 5-year review.

Threats Identified at the Time of Listing

    The island night lizard occurs on San Clemente, San Nicolas, and 
Santa Barbara Islands (Bezy et al. 1980) and one small islet (Sutil 
Island) immediately adjacent to Santa Barbara Island (Fellers and Drost 
1991). We listed the island night lizard as threatened on August 11, 
1977, along with six other species of animals and plants that occur on 
the Channel Islands off the coast of southern California (42 FR 40682). 
We determined that the habitat used by the island night lizard was 
being modified by the browsing effect of feral goats (Capra hircus) and 
the rooting of feral pigs (Sus scrofa) (June 1, 1976, 41 FR 22073; 42 
FR 40682). We stated that the habitats on Santa Barbara and San Nicolas 
Islands were already reduced and any future reduction would seriously 
imperil the island night lizard populations (41 FR 22073; 42 FR 40682). 
Island night lizard depredation by feral housecats (Felis cattus) on 
San Clemente Island and by alligator lizards (Elgaria multicarinata 
webbii) on San Nicolas Island were also identified as possible threats 
to the continued existence of the island night lizard (41 FR 22073; 42 
FR 40682). In 1984, we published the Recovery Plan for the Endangered 
and Threatened Species of the California Channel Islands (Recovery 
Plan), which included the island night lizard (USFWS 1984). Critical 
habitat has not been designated for the island night lizard.

Summary of the Petitions

    In making these findings regarding the island night lizard 
delisting petitions, we rely on information provided by the petitioners 
and evaluate that information in accordance with 50 CFR 424.14(b). The 
content of these findings summarize information included in the 
petitions, as well as information available to us at the time we 
reviewed the petitions. Our review for the purposes of a 90-day finding 
under section 4(b)(3)(A) of the Act and Sec.  424.14(b) of our 
regulations is limited to a determination of whether the information in 
the petitions meets the ``substantial scientific information'' 
threshold. We do not conduct additional research at this point, nor do 
we subject the petitions to rigorous critical review. Rather, as the 
Act and regulations contemplate, at the 90-day finding, the key 
consideration in evaluating the petitions involves demonstration of the 
reliability and adequacy of the information supporting the action 
advanced by the petitions.
    In determining whether a petition presents substantial information 
that the petitioned action may be warranted, in accordance with 
regulation (Sec.  424.14(b)(2)), we consider whether the petition:
    (1) Clearly indicates the petitioned action and gives the 
scientific and common name of the species involved;
    (2) Contains detailed narrative justification for the petitioned 
action based on available information, past and present numbers and 
distribution of the species involved, and any threats faced by the 
    (3) Provides information regarding the status of the species over 
all or a significant portion of its range;
    (4) Includes appropriate supporting documentation in the form of 
bibliographic references, reprints of pertinent publications, copies of 
reports or letters from authorities, and maps.

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    Additionally, section 4(a)(1) of the Act requires that we determine 
whether a species is endangered or threatened based on one or more of 
the five following factors:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes;
    C. Disease or predation;
    D. The inadequacy of existing regulatory mechanisms; or
    E. Other natural or manmade factors affecting its continued 
    In determining whether a petition presents substantial information 
regarding threats faced by the species, we evaluate whether the 
petition provides any information relevant to those factors.
    The first petition we received requesting that we remove the island 
night lizard from the List of Endangered and Threatened Wildlife and 
Plants (List) was from the National Wilderness Institute and was dated 
February 3, 1997. The petition maintains that the island night lizard 
has no significant identifiable threats, appears to have had a stable 
population since being listed, and should be delisted on the basis of 
data error. The petition restates information from the listing rule (42 
FR 40682) and the Recovery Plan and does not provide any new 
information or documentation that would support delisting. The petition 
also notes that we identified the island night lizard in budget 
justifications as early as 1993 as a potential candidate for delisting. 
We acknowledged receipt of the petition in a letter to the National 
Wilderness Institute dated June 29, 1998, and indicated that due to low 
priority assigned to delisting activities in our Fiscal Year 1997 
Listing Priority Guidance, we were not then able to act on the 
    The first petition does not provide any information on or describe 
the past and present numbers and distribution, or status, of the 
species over all or a significant portion of its range. However, the 
petition does present claims regarding the first factor (the present or 
threatened destruction, modification, or curtailment of its habitat or 
range). The petition asserts that the island night lizard is not 
threatened by habitat modification by feral animals. To support this 
assertion, the first petition refers to the Recovery Plan (USFWS 1984). 
It states that the Recovery Plan presumed that the habitat modification 
resulting from feral species herbivory was the primary contributor to 
the decline of indigenous species such as the island night lizard, and 
notes that the Recovery Plan did not provide any data demonstrating a 
    To support its view that habitat on San Clemente Island was not 
altered by grazing animals, the petition cites from the Recovery Plan 
in reference to San Clemente Island habitat: ``* * * with habitat 
structure as the predominant influence on present distribution, it is 
possible to deduce the change from past habitat modification on the 
island. The optimum habitat, maritime desert scrub, Lycium phase, is 
largely the result of soil and climate conditions along the west coast 
of the island and probably has not been altered to the detriment of the 
lizards by grazing mammals.'' However, the petition does not 
acknowledge the continuing text of this section of the Recovery Plan, 
which, for example, notes that there is no information on the status of 
island night lizards prior to ranching activities and the introduction 
of feral animals on San Clemente Island. The Recovery Plan also 
suggests that important changes to habitat structure occurred in upland 
areas on the southern half of San Clemente Island where grazing and 
soil erosion have replaced shrub and herbaceous vegetation with 
grassland, cholla cactus, and bare ground. The Recovery Plan further 
notes that rocky areas exposed by the loss of original vegetation are a 
deteriorated habitat for the island night lizard, and chaparral shrub 
vegetation is not sufficiently dense to provide full shelter for the 
island night lizard. The Recovery Plan concludes that the most 
extensive deterioration of island night lizard habitat occurred with 
the vegetation changes on rocky upland areas of the southern half of 
San Clemente Island.
    The information presented in the first petition asserting that 

feral species herbivory did not alter island night lizard habitat does 
not accurately portray the discussion in the Recovery Plan and is out 
of context. We therefore conclude that the petition does not provide 
substantial information regarding the first factor (the present or 
threatened destruction, modification, or curtailment of its habitat or 
range). The petition did not provide any information concerning the 
second factor (overutilization for commercial, sporting, recreational, 
scientific, or educational purposes), the third factor (disease or 
predation); the fourth factor (inadequacy of existing regulatory 
mechanisms), or the fifth factor (other natural or manmade factors 
affecting their continued existence). We, therefore, conclude that the 
first petition does not provide substantial information or appropriate 
supporting documentation supporting its claim that feral species 
herbivory on San Clemente Island did not contribute to the decline of 
the island night lizard, and that the island night lizard was listed in 
error. The first petition does not provide any information on island 
night lizard habitat on San Nicolas Island or on Santa Barbara Island, 
nor does it address any other factors considered in a 90-day petition 
    We received a second petition dated March 22, 2004, from the U.S. 
Navy, requesting that we delist the island night lizard on San Clemente 
Island and San Nicolas Island, California, as distinct population 
segments pursuant to section 4(b)(3) of the Act. The second petition 
provides a comprehensive summary of the species' status and population 
abundance information that has been collected since the island night 
lizard was listed. The petition also provides information on threats to 
the species. The information on species status, population abundance, 
and threats provided in the petition is accompanied by supporting 
documentation in the form of bibliographic references, many of which 
are included as appendices.
    The following assertions of the second petition, along with the 
associated documentation, constitute substantial information warranting 
further analysis in a 12-month finding: (1) The primary threat, habitat 
destruction by feral ungulates on San Clemente Island, has been 
removed; (2) increases in the numbers of island night lizards on San 
Clemente Island are likely attributable to the removal of the feral 
ungulates and minimization of the potential impacts of military 
training operations; (3) there are minimal impacts from military 
activities on island night lizard on San Nicolas Island; (4) the effect 
of feral cat predation on island night lizard is either reduced (San 
Clemente Island) or minimal (San Nicolas Island); (5) the establishment 
of a sympatric relationship between island night lizard and alligator 
lizard suggests that the latter does not threaten the continued 
existence of the island night lizard; (6) continued monitoring has 
demonstrated that island night lizard populations on San Clemente 
Island and San Nicolas Island are stable and viable; (7) the island 
night lizard monitoring data for both San Clemente and San Nicolas 
Islands do not demonstrate that non-native vegetation adversely impacts 
the island night lizard populations; (8) since 1977, the only 
substantial change in plant communities on San Clemente Island has been 
habitat recovery as a result of the eradication of feral grazing

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animals; (9) the military administrative nature of the islands, the 
sensitivity towards natural resources, and the conservation goals 
outlined in San Clemente Island Integrated Natural Resources Management 
Plan (US Navy 2002) provide assurances that new introductions of non-
native animals are unlikely to occur; and (10) investigations suggest 
that fires do not have detrimental effects to the species unless they 
result in long term modification of vegetation.
    The second petition has thus presented information regarding the 
first factor (the present or threatened destruction, modification, or 
curtailment of its habitat or range), third factor (disease or 
predation), and the fifth factor (other natural or manmade factors 
affecting their continued existence) under section 4(a)(1) of the Act 
that we evaluate in determining whether substantial information 
indicates the petitioned action may be warranted. Regarding the first 
factor, the first petition claims that habitat was not altered by feral 
species herbivory but does not provide substantial information or 
appropriate supporting documentation. In contrast, the second petition 
provides documentation in the form of bibliographic references that 
cite biological studies on the species and Department of the Navy 
management plans for San Clemente and San Nicolas islands, some of 
which are included as appendices to the petition.
    The second petition does not suggest the delisting of the island 
night lizard population on Santa Barbara Island. The second petition 
states that even though rabbits (Oryctolagus cuniculus) were eradicated 
on the island in 1981, the National Park Service informed the U.S. Navy 
that the lizard habitat has not improved as expected, and recent survey 
data from Santa Barbara Island have not been adequately analyzed.

Distinct Population Segments

    Under the Act, a species is defined as including any subspecies and 
any distinct population segment (DPS) of a vertebrate species [16 
U.S.C. 1532(16)]. To implement the measures prescribed by the Act and 
its Congressional guidance, we and the National Marine Fisheries 
Service (National Oceanic and Atmospheric Administration--Fisheries), 
developed a joint policy that addresses the recognition of DPSs of 
vertebrate species for potential listing and delisting actions 
(February 7, 1996, 61 FR 4722). The DPS policy specifies that we are to 
use two elements to assess whether a population segment under 
consideration for listing may be recognized as a DPS: (1) The 
population segment's discreteness from the remainder of the species to 
which it belongs; and (2) the significance of the population segment to 
the species to which it belongs. If we determine that a population 
segment meets the discreteness and significance standards and therefore 
qualifies as a DPS, then the level of threat to that population segment 
is evaluated based on the five listing factors established by the Act 
to determine whether listing or delisting the DPS is warranted.
    The island night lizard is currently listed as a threatened species 
throughout its range, and we have not conducted an analysis to 
determine if the DPS policy is applicable to this species. The second 
petition asserts that the San Nicolas, San Clemente, and Santa Barbara 
Islands all qualify as DPSs. The second petition asserts that the three 
island night lizard populations are discrete from each other because 
(1) they are separated physically as islands of the Pacific Ocean, 
between which the lizards are not able to travel, and (2) they are 
separated administratively by ownership. The U.S. Navy administers San 
Clemente and San Nicolas Islands, and the National Park Service 
administers Santa Barbara Island.
    The second petition also states that the three populations on the 
islands meet the significance element of the DPS policy based on two 
points. First, because the island night lizard is found on only three 
of the six California Channel Islands, the loss of one population 
segment may be considered a gap in the range of the species. Secondly, 
the second petition asserts that phenotypic differences, such as 
variation in scalation, body size, and clutch size, occur between the 
different island night lizard populations.
    The Service has not analyzed the island night lizard to determine 
whether the separate populations constitute DPSs under our policy. The 
second petition has raised this issue and it is relevant to the status 
review and subsequent determination on the petition. Our 12-month 
finding will consider whether any of the island night lizard 
populations constitute a DPS.


    We have reviewed both of the delisting petitions and their 
supporting documents as well as other information in our files. The 
first petition presents no information on the past and present numbers 
and distribution, or status of the species over all or a significant 
portion of its range, and limited information relevant to threats to 
the species. The limited information it presents in support of its view 
that island night lizard habitat on San Clemente Island was not altered 
by grazing animals misrepresents discussions in the Recovery Plan and 
is out of context, and was not accompanied by any other supporting 
documentation. Accordingly, we find that the first petition does not 
present substantial information indicating that delisting the island 
night lizard may be warranted.
    For the reasons discussed above, we find that the second petition 
does present substantial information indicating that delisting the San 
Clemente and San Nicolas Islands populations may be warranted. 
Questions remain as to whether the island night lizard populations 
would qualify as distinct population segments. We believe it is 
appropriate to consider the information provided in the second 
petition, any other new information about this species, and the threats 
it may face in a status review, including information presented as to 
whether the island night lizard populations qualify as distinct 
population segments. We will issue a 12-month finding in accordance 
with section 4(b)(3)(B) of the Act as to whether delisting is 

Public Information Solicited

    We are requesting information on the island night lizard throughout 
its range for the 12-month finding. We also will use that information 
for the ongoing 5-year review (70 FR 39327, July 7, 2005). When we make 
a finding that substantial information exists to indicate that listing 
or delisting a species may be warranted, we are required to promptly 
commence a review of the status of the species. To ensure that the 
status review is complete and based on the best available scientific 
and commercial information, we are soliciting information on the island 
night lizard throughout its range. This includes information regarding 
historical and current distribution, biology, ecology, ongoing 
conservation measures for the species and its habitat, and threats to 
the species and its habitat.
    Additionally, we request any information regarding application of 
our policy regarding the recognition of distinct vertebrate population 
segments under the Act (61 FR 4722) to this particular situation. As 
stated in the policy, a population segment of a vertebrate species may 
be considered discrete if it satisfies either one of the following two 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors

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(quantitative measures of genetic or morphological discontinuity may 
provide evidence of this separation); or (2) it is delimited by 
international governmental boundaries within which significant 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist. The Service also 
considers available scientific evidence of a discrete population 
segment's significance to the taxon to which it belongs. This 
consideration may include, but is not limited to, the following: (1) 
Persistence of the discrete population segment in an ecological setting 
unusual or unique for the taxon, (2) evidence that loss of the discrete 
population segment would result in a significant gap in the range of a 
taxon, (3) evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range, or 
(4) evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics. We 
request any additional information, comments, and suggestions from the 
public, State and Federal agencies, Tribes, the scientific community, 
industry or environmental entities, or any other interested parties 
concerning the status of the island night lizard, and whether the 
island night lizard populations constitute distinct population 
    If you wish to provide information or comments relevant to the 12-
month finding or 5-year review, you may submit your information, 
comments, and materials to the Field Supervisor, Carlsbad Fish and 
Wildlife Office (see ADDRESSES). Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours. Respondents may request that we 
withhold their identity, as allowable by law. If you wish to withhold 
your name or address, you must state this request prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. To the extent consistent with applicable law, we will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
    A complete list of all references cited in this finding is 
available, upon request, from the Carlsbad Fish and Wildlife Office 


    The primary author of this document is Sandy Vissman (see 


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

    Dated: July 11, 2006.
Benito A. Perez,
Acting Director, Fish and Wildlife Service.
[FR Doc. E6-13877 Filed 8-21-06; 8:45 am]