Federal Register, Volume 86 Issue 192 (Thursday, October 7, 2021) 2021 Federal Register, 86 FR 55775-55789; Centralized Library: U.S. Fish and Wildlife Service -

[Federal Register Volume 86, Number 192 (Thursday, October 7, 2021)]
[Proposed Rules]
[Pages 55775-55789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21651]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2020-0017; FF08E00000 FXES11110800000 212]

RIN 1018-BF94

Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Tiehm's Buckwheat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list Eriogonum tiehmii (hereafter Tiehm's buckwheat), a plant species
native to Nevada in the United States, as endangered under the
Endangered Species Act of 1973, as amended (Act). If we finalize this
rule as proposed, it would add this species to the List of Endangered
and Threatened Plants and extend the Act's protections to the species.

DATES: We will accept any additional data, information, or comments
received or postmarked on or before December 6, 2021. Comments
submitted electronically using the Federal eRulemaking Portal (see
ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the
closing date. We must receive requests for a public hearing, in
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by
November 22, 2021.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN
for this rulemaking (presented above in the document headings). For
best results, do not copy and paste either number; instead, type the
docket number or RIN into the Search box using hyphens. Then, click on
the Search button. On the resulting page, in the panel on the left side
of the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2020-0017, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send any additional data, information, or

[[Page 55776]]

comments only by the methods described above. We will post all relevant
data, information, or comments on https://www.regulations.gov. This
generally means that we also will post any personal information you
provide us (see Information Requested, below, for more information).
Availability of supporting materials: Our Species Status Assessment
for Tiehm's buckwheat is available at https://www.fws.gov/reno/ and at
https://www.regulations.gov under Docket No. FWS-R8-ES-2020-0017.

FOR FURTHER INFORMATION CONTACT: Marc Jackson, Field Supervisor, U.S.
Fish and Wildlife Service, Reno Ecological Services Field Office, 1340
Financial Boulevard, Suite 234, Reno, Nevada 89502; telephone 775-861-
6337. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Endangered Species Act of
1973, as amended (``Act''; 16 U.S.C. 1531 et seq.), if we determine
that a species is an endangered or threatened species throughout all or
a significant portion of its range, we are required to promptly publish
a proposal in the Federal Register, unless doing so is precluded by
higher-priority actions and expeditious progress is being made to add
and remove qualified species to or from the Lists of Endangered and
Threatened Wildlife and Plants. The Service will make a determination
on our proposal within 1 year. If there is substantial disagreement
regarding the sufficiency and accuracy of the available data relevant
to the proposed listing, we may extend the final determination for not
more than six months. To the maximum extent prudent and determinable,
we must designate critical habitat for any species that we determine to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designation of critical
habitat can only be completed by issuing a rule.
What this document does. We propose to list Tiehm's buckwheat as an
endangered species under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
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 existence. We have determined that Tiehm's buckwheat is
primarily at risk of extinction due to the destruction, modification,
or curtailment of its habitat and range from mineral exploration and
development; road development and off-highway vehicle (OHV) use;
livestock grazing; nonnative, invasive plant species; and herbivory.
Climate change may further influence the degree to which some of these
threats (herbivory and nonnative invasive plant species), individually
or collectively, may affect Tiehm's buckwheat. In addition, existing
regulatory mechanisms may be inadequate to protect the species.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
In this proposed rule, we present our determination that designating
critical habitat is prudent but not determinable at this time, and that
we intend to propose designated critical habitat subsequently.
Peer review. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we solicited reviews of
the draft Species Status Assessment (SSA) for Tiehm's buckwheat. We
sought the expert opinions of four independent specialists with
expertise in botany, rare plant conservation, and plant ecology, and
received responses from three of said experts. The purpose of peer
review of the SSA report is to ensure that our listing determination is
based on scientifically sound data, assumptions, and analyses. Comments
from peer reviewers have been incorporated into our SSA as appropriate.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate as possible. Therefore, we request comments or
information from other concerned governmental agencies, Native American
Tribes, the scientific community, industry, or any other interested
parties concerning this proposed rule.
We particularly seek comments concerning:
(1) Tiehm's buckwheat biology, distribution, and population size
and trend, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for pollination, reproduction, and dispersal;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Ongoing conservation measures for the species, its habitat, or
both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the

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basis of the best scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
threatened instead of endangered, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species.

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and by news release at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).

Previous Federal Actions

On October 7, 2019, we received a petition from the Center for
Biological Diversity (CBD; CBD 2019, entire) requesting that Tiehm's
buckwheat be listed as threatened or endangered, that critical habitat
be concurrently designated for this species under the Act, and that the
petition be considered on an emergency basis. The Act does not provide
for a process to petition for emergency listing; therefore, we
evaluated the petition to determine if it presented substantial
scientific or commercial information indicating that the petitioned
action may be warranted. The Service published a 90-day finding on July
22, 2020 (86 FR 44265), stating that the petition presented substantial
scientific or commercial information indicating that listing Tiehm's
buckwheat may be warranted.
On September 29, 2020, CBD filed a complaint in the U.S. District
Court for the District of Nevada against the Service alleging
violations under the Administrative Procedure Act (5 U.S.C. 551 et
seq.); CBD amended the complaint on October 14, 2020, to include a
claim under the Act that the Service had missed the 1-year deadline of
October 7, 2020, for issuing a 12-month finding for Tiehm's buckwheat.
On April 21, 2021, the court issued a decision, and, in response to a
stipulated request for a revised remedy order, on May 17, 2021, the
court ordered the Service to deliver a 12-month finding on Tiehm's
buckwheat to the Federal Register by May 31, 2021, and if warranted, a
proposed listing rule by September 30, 2021, and if warranted and
designating critical habitat is prudent and determinable, a proposed
critical habitat determination by January 31, 2022 (or May 2, 2022, if
the determination is deemed a ``significant regulatory action'' by the
Office of Management and Budget). On May 20, 2021, the court issued an
amended judgment, which serves as the final judgment in this case.
On June 4, 2021, the Service published a 12-month warranted finding
(86 FR 29975) on the October 7, 2019, petition to list Tiehm's
buckwheat. The Service now proposes to list Tiehm's buckwheat as an
endangered species.

Supporting Documents

The Service prepared an SSA report for the Tiehm's buckwheat
(Service, 2021 entire). The science provided in the SSA report is the
basis for this proposed rule. The SSA report represents a compilation
of the best scientific and commercial data available concerning the
status of the species, including past, present, and future impacts
(both negative and beneficial) affecting the species. The SSA underwent
independent peer review by scientists with expertise in botany, rare
plant conservation, and plant ecology. The Service also sent the SSA
report to three partner agencies, the Nevada Division of Forestry, the
Nevada Division of Natural Heritage (NDNH), and the Bureau of Land
Management (BLM), for review. We received comments from NDNH and BLM.
Comments received during peer and partner review were considered and
incorporated into our SSA.

Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of
Tiehm's buckwheat is presented in the SSA report (Service 2021, pp. 13-
22). A summary of the SSA is provided below.

Species Description, Habitat, and Needs

Tiehm's buckwheat was first discovered in 1983 and described in
1985. All available taxonomic and genetic research information
indicates that Tiehm's buckwheat is a valid and recognizable taxon and
represents a distinct species. Tiehm's buckwheat is a low-growing
perennial herb, with blueish gray leaves and pale, yellow flowers that
bloom from May to June and turn red with age. Seeds ripen in late-June
through mid-July (Reveal 1985, pp. 277-278; Morefield 1995, pp. 6-7).
Tiehm's buckwheat occurs between 5,906 and 6,234 feet (ft; 1,800
and 1,900 meters (m)) in elevation and on all aspects with slopes
ranging from 0-50 degrees (Ioneer 2020a, p. 5; Morefield 1995, p. 11).
The species occurs on dry, upland sites, subject only to occasional
saturation by rain and snow and is not found in association with free
surface or subsurface waters (Morefield 1995, p. 11). Although there is
no information on Tiehm's buckwheat's specific water needs during its
various life stages (i.e., dormant seed, seedling, juvenile, adult), it
appears to be primarily dependent on occasional precipitation for its
moisture supply (Morefield 1995, p. 11). Like most terrestrial plants,
Tiehm's buckwheat requires soil for physical support and as a source of
nutrients and water. Tiehm's buckwheat is a soil specialist
specifically adapted to grow on its preferred soil type. The species is
restricted to dry, open, relatively barren slopes with light-colored
rocky clay soils derived from an uncommon formation of interbedded
claystones, shales, tuffaceous sandstones, and limestones (Ioneer
2020a, p. 5; Morefield 1995, p. 10). Vegetation varies from pure stands
of Tiehm's buckwheat to sparse associations with a few other low-
growing herbs and grass species (Morefield 1995, p. 12). The abundance
and diversity of arthropods (insects, mites, and spiders) observed in
Tiehm's buckwheat subpopulations is especially high (1,898 specimens
from 12 orders,

[[Page 55778]]

70 families, and 129 species were found in 2020) for a plant community
dominated by a single plant species (McClinton et al. 2020, p. 11).
Primary pollinator visitors to Tiehm's buckwheat include wasps,
beetles, and flies (McClinton et al. 2020, p.18). Tiehm's buckwheat
benefits from pollinator services and needs pollination to increase
seed production.
Tiehm's buckwheat is a narrow-ranging endemic known only from one
population, comprising eight subpopulations, in the Rhyolite Ridge area
of Silver Peak Range in Esmeralda County, Nevada. The single population
of Tiehm's buckwheat is restricted to approximately 10 acres (4
hectares) across a 3-square-mile area, located entirely on public lands
administered by BLM. The subpopulations are separated by a rural,
unpaved, county road where subpopulations 1, 2, and 8 occur north of
the road, and subpopulations 3, 4, 5, 6, and 7 occur south of the road
(Figure 1). A 2019 survey estimated that the total Tiehm's buckwheat
population is 43,921 individual plants (Table 1; Kuyper 2019, p. 2).
Multiple survey efforts have not detected additional populations of the
species.
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TP07OC21.000

BILLING CODE 4333-15-C

Table 1--Summary of Tiehm's Buckwheat Individuals and Occupied Habitat
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Estimated number of plants Occupied habitat (acres)
Population Subpopulation -------------------------------------------------------------------------------
1994 \a\ 2008/2010 \b\ 2019 \c\ 2008/2010 2019
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1.................................................... 1 7,000+ 15,380 9,240 4.71 4.81
2 3,000+ 4,000 4,541 1.17 1.56

[[Page 55780]]

3 500+ 4,000 1,860 0.62 0.63
4 500+ 1,960 8,159 0.58 1.04
5 15 100 \d\ 199 0.03 0.04
6 6,000+ 11,100 19,871 1.64 1.88
7 n/a n/a \d\ 50 n/a 0.004
8 n/a n/a \d\ 1 n/a (*)
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Total............................................ ................. 17,015+ 36,540 43,921 8.75 9.97
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\a\ Ocular estimate.
\b\ Method employed: ``Estimating Population Size Based on Average Central Density'' (Morefield 2008, entire: Morefield 2010, entire).
\c\ Method employed: Modified density sampling methodology in BLM technical reference ``Sampling Vegetation Attributes'' (BLM 1999, Appendix B) and
``Measuring and Monitoring Plant Subpopulations'' (Elzinga et al. 1998; Kuyper 2019, entire).
\d\ Direct count.
* (1 plant).

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an endangered species as a species that is ``in danger of
extinction throughout all or a significant portion of its range'' and a
threatened species as a species that is ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the 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
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. These include actions or conditions
that have a direct or indirect impact as well as those that affect
individuals through alteration of their habitat or resources. The term
``threat'' may encompass--either together or separately--the source of
the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be proposed for listing as an
endangered or threatened species under the Act. It does, however,
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies. The following is a summary
of the key results and conclusions from the SSA report; the full SSA
report can be found at Docket No. FWS-R8-ES-2020-

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0017 on https://www.regulations.gov and at https://www.fws.gov/reno/.
To assess viability of the Tiehm's buckwheat, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic impacts. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
For the Tiehm's buckwheat to maintain viability, its populations or
some portion thereof must be resilient. A number of factors influence
the resiliency of Tiehm's buckwheat, including suitable habitat,
abundance, and recruitment. Elements of the species' habitat that
determine whether the Tiehm's buckwheat population can grow to maximize
habitat occupancy influence those factors, thereby influencing the
resiliency of the population. These resiliency factors and habitat
elements are discussed in detail in the SSA report (Service 2021,
entire) and summarized here.

Summary of Biological Status and Threats

We reviewed the potential threats that could be affecting the
Tiehm's buckwheat now and in the future. In this proposed rule, we will
discuss only those threats in detail that could meaningfully impact the
status of the species. Those threats that are not known to have effects
on Tiehm's buckwheat, such as disease and overutilization for
commercial and scientific purposes, are not discussed here, but are
evaluated in the SSA report. The primary threats affecting the status
of the Tiehm's buckwheat are physical alteration of habitat due to
mineral exploration and development, road development and OHV use,
livestock grazing, and nonnative, invasive plant species (all Factor A
threats); herbivory (Factor C); and climate change (Factor E). Climate
change may further influence the degree to which these threats,
individually or collectively, may affect Tiehm's buckwheat. While we
generally discuss these threats individually, threats can also occur
simultaneously, thus additively affecting the resiliency of Tiehm's
buckwheat. Where different individual threats occur at the same time
and place, we will describe how they may interact with one another in
the threats discussion below. Threats may be reduced through the
implementation of existing regulatory mechanisms or other conservation
efforts that benefit Tiehm's buckwheat and its habitat. We also
summarize and discuss how the existing regulatory mechanisms (Factor D)
address these threats.

Herbivory

The naturally occurring Tiehm's buckwheat population (represented
by one population with eight subpopulations) and a seedling transplant
experiment suffered detrimental herbivory in 2020. All of the naturally
occurring subpopulations experienced greater than 50 percent damage or
loss of individual plants, while almost all experimental transplants
were lost to rodent herbivores in a 2-week period (Service 2020, pp.
29-33). An environmental DNA analysis (i.e., trace DNA found in soil,
water, food items, or other substrates with which an organism has
interacted) conducted on damaged Tiehm's buckwheat roots, nearby soils,
and rodent scat strongly linked small mammal herbivory to the
widespread damage and loss of the naturally occurring Tiehm's buckwheat
population (Grant 2020, entire). This was the first time herbivory was
documented on the species, although, prior to 2019, surveys of the
population were infrequent. The significance of herbivory in the
naturally occurring population depends not only on its frequency and
intensity, but also on whether damaged plants can recover and survive,
as we are uncertain if the species will be able to recover from this
damage and loss. Rodent herbivore pressure precluded seedling survival
in experimental plots. Further studies and monitoring need to be
conducted to determine if management to reduce rodent herbivory is
necessary to maintain Tiehm's buckwheat individuals and subpopulations,
or if it was just a random catastrophic event that is not likely to
occur on a regular basis.
The recent herbivory event that Tiehm's buckwheat experienced was
extensive enough to compromise the long-term viability of individuals,
subpopulations, and the overall population. One possibility for why
this occurred is that climate changes are causing changes in moisture
availability. Total precipitation was above average in the Rhyolite
Ridge area from 2015 through 2019, whereas in 2020, it was
significantly below average. Increases in precipitation are typically
followed by increases in rodent populations (Randel and Clark 2010;
entire; Gillespie et al. 2008, pp. 78-81; Brown and Ernest 2002, pp.
981-985; Beatley 1976, entire). This sudden shift from above average to
below average precipitation may be what impacted the local rodent
population at Rhyolite Ridge; a large rodent population was seeking
water from whatever source was available and, in this case, found the
shallow taproots of mature Tiehm's buckwheat plants (Boone 2020,
entire; Morefield 2020, p. 12). If herbivory was driven by a water-
stressed rodent population, future alteration of temperature and
precipitation patterns may create climate conditions for this situation
to happen again, resulting in further damage or loss of Tiehm's
buckwheat individuals.

Mineral Exploration and Development

The specialized soils on which Tiehm's buckwheat occurs are high in
lithium and boron, making this location of high interest for mineral

[[Page 55782]]

development. Trenches and mine shafts associated with mineral
exploration and development have already impacted subpopulations 1, 2,
3, 4, and 6, resulting in the loss of some of the Tiehm's buckwheat
habitat (Morefield 1995, p. 15). Future mineral exploration and
development would be expected to result in similar or more detrimental
impacts to the species. The BLM lands on which Tiehm's buckwheat grows
are subject to the operation of the Mining Law of 1872, as amended (30
U.S.C. 22-54). Therefore, under BLM's regulations, operators may
explore and cause a surface disturbance of up to 5 acres after an
operator gives notice to BLM and waits 15 days (43 CFR 3809.21(a)). By
contrast, if a listed species or designated critical habitat is
present, an operator must submit a mining plan of operations and obtain
BLM approval for any surface disturbance greater than casual use (43
CFR 3809.11(b)(6)).
In May 2020, Ioneer USA Corporation (Ioneer) submitted a plan of
operations to BLM for the proposed Rhyolite Ridge lithium-boron
project. The proposed project is awaiting BLM permitting and approval
and, if permitted, would result in the complete loss of Tiehm's
buckwheat habitat and subpopulations 4, 5, 6, and 7, even with the
voluntary protection measures included in Ioneer's project proposal.
The voluntary protection measures included in Ioneer's project proposal
are summarized below in the Conservation Measures and Existing
Regulatory Mechanisms section (protection measures are described more
thoroughly in Service 2021, pp. 39-40, 46-47). The potential impact
from the proposed project, combined with the loss resulting from the
recent herbivory event, would reduce the total Tiehm's buckwheat
population by 70 to 88 percent, or from 43,921 individuals to roughly
5,289-8,696 individuals, and remove 30 percent of its total habitat
(2.96 ac (1.2 ha); Ioneer 2020a, Figure 4, p. 29). The number of
individuals estimated to survive is represented by a range, because we
do not know yet if the plants damaged from herbivory will be able to
recover and survive. The low end of this range is based on permanent
loss of damaged plants, while the high end represents conditions if all
the herbivore-damaged plants recover. At the end of the project as
proposed, areas previously occupied by Tiehm's buckwheat in
subpopulations 4-7 would be underwater within the boundaries of a
quarry lake (Ioneer 2020b, pp. 71-72). Ioneer is proposing to remove
and salvage all remaining plants in subpopulations 4, 5, 6, and 7
(between 11,701-16,205 plants depending on if damaged plants recover
from herbivory) and translocate them to another location. However,
because Tiehm's buckwheat is a soil specialist and adjacent, unoccupied
sites are not suitable for all early life-history stages, herbivore
impacts on transplanted seedlings, and lack of testing and multiyear
monitoring on the feasibility of transplanting the species, we are
uncertain of the potential for success of translocation efforts.
Subpopulation 6 may be the most resilient of the eight Tiehm's
buckwheat subpopulations because it has the most individuals, produces
a higher average density of flowers (correlating to a higher seed
output), supports high pollinator diversity, and supports a variety of
size classes, including having the most individuals in the smallest
size class indicating that this subpopulation is likely experiencing
the most recruitment (Kuyper 2019, p. 3; Ioneer 2020a, pp. 7-8;
McClinton et al. 2020, p. 23, 51). Loss of this subpopulation to the
proposed Rhyolite Ridge lithium-boron project may have an immense
impact on the overall resiliency and continued viability of the
species, beyond just the numeric loss of redundancy and representation.
Rare plant species, like Tiehm's buckwheat, that have restricted
ranges, specialized habitat requirements, and limited recruitment and
dispersal, have a higher risk of extinction due to demographic
uncertainty and random environmental events (Shaffer 1987, pp. 69-75;
Lande 1993, pp. 911-927; Hawkins et al. 2008, pp. 41-42; Caicco 2012,
pp. 93-94; Kaye et al. 2019, p. 2). Additionally, habitat fragmentation
poses specific threats to species through genetic factors such as
increases in genetic drift and inbreeding, together with a potential
reduction in gene flow from neighboring individuals or subpopulations
(Jump and Pe[ntilde]uelas 2005, pp. 1015-1016). The effects of habitat
fragmentation from the proposed Rhyolite Ridge lithium-boron project on
Tiehm's buckwheat may be compounded by the inherently poor dispersal of
the species and its specific soil requirements.

Road Development and Off-Highway Vehicle Use

Ecological impacts of roads and ground-disturbing activities like
OHV use include altered hydrology, pollution, sedimentation, silt and
dust erosion and deposition, habitat fragmentation, reduced species
diversity, and altered landscape patterns (Forman and Alexander 1998,
entire; Spellerberg 1998, entire). OHV impacts have occurred in
subpopulation 1 (Caicco and Edwards 2007, entire; Donnelly and Fraga
2020, p. 1; Ioneer 2020a, p. 10) and can kill or damage individual
plants and modify habitat through fragmentation and soil compaction.
Mining and mineral exploration activities that grade, improve, and
widen roads in the Rhyolite Ridge area may allow easier and greater
access for OHVs and recreational use. Additionally, road development
and increased vehicle traffic associated with the mine may create
conditions that further favor the establishment of nonnative, invasive
species within Tiehm's buckwheat habitat.
Ioneer's proposed Rhyolite Ridge lithium-boron project would
construct and maintain service and haul roads within the Rhyolite Ridge
area. Cave Springs Road (as seen on Figure 1) is currently maintained
by Esmeralda County and bisects the Tiehm's buckwheat subpopulations.
Realignment of this road is proposed to accommodate haul roads. It is
expected that the rerouted road would be transferred to the county at
closure, as an amendment to the county's existing right-of-way with BLM
(Ioneer 2020b, p. 44). The expected amount of truck traffic associated
with providing needed materials and supplies and product transport for
the proposed project is anticipated to be 100 round trips per day, 365
days per year (Ioneer 2020b, p. 7).
Dust deposition, often a result of vehicle traffic on roads,
negatively affects the physiological processes of plants including
photosynthesis, reproduction, transpiration, water use efficiency, leaf
hydraulic conductance, and stomatal disruption that impedes the ability
of the stomata to open and close effectively (Hirano et al. 1995, pp.
257-260; Vardaka et al. 1995, pp. 415-418; Wijayratne et al. 2009, pp.
84-87; Lewis 2013, pp. 56-79; Sett 2017, entire). Physiological
disruption to Tiehm's buckwheat individuals from dust generated from
vehicular traffic associated with the proposed Rhyolite Ridge lithium-
boron project would likely negatively affect the overall health and
physiological processes of the population and of the subpopulations
remaining (1, 2, 3, and 8) after full implementation of the proposed
Rhyolite Ridge lithium-boron project.

Livestock Grazing

Livestock grazing has the potential to result in negative impacts
to Tiehm's buckwheat individuals, subpopulations, and/or the
population, depending on

[[Page 55783]]

factors such as stocking rate and season of use. Livestock grazing may
result in direct impacts to individual Tiehm's buckwheat plants due to
trampling of vegetation and soil disturbance (compaction) in ways that
can render habitat no longer suitable to established plants, while also
discouraging population recruitment (by discouraging seed retention,
seed germination, and seedling survival). Patterns of soil disturbance
associated with grazing also can create conditions conducive to the
invasion of nonnative plant species (Young et al. 1972, entire; Hobbs
and Huenneke 1992, p. 329; Loeser et al. 2007, pp. 94-95).
Tiehm's buckwheat occurs in the BLM Silver Peak livestock grazing
allotment (BLM 1997, p. 15, Map 17). The Silver Peak allotment
(NV00097) was authorized on September 9, 2020, with a 4-year term that
expires on September 24, 2024 (BLM 2021a, entire). There are no grazing
exclosures associated with Tiehm's buckwheat within this BLM allotment;
therefore, the species may be exposed to the effects of livestock
grazing described in the above paragraph. Although some Tiehm's
buckwheat individuals may be impacted by this threat, current grazing
damage to Tiehm's buckwheat has not been observed. There are currently
658 active AUMs (animal unit months) and 2,507 temporarily suspended
AUMs associated with the Silver Peak allotment due to stocking water
range improvements that have fallen out of repair.
Upon expiration of the Silver Peak allotment, BLM will consider
reauthorization and/or changing the number of active AUMs. Range
improvements are in progress, and additional AUMs may be returned on
this allotment (Truax 2020, pers. comm.). However, grazing impacts
could potentially increase in the future if additional AUMs are
returned to this allotment.

Nonnative, Invasive Plant Species

Nonnative, invasive plant species could negatively affect Tiehm's
buckwheat individuals, subpopulations, and/or the population through
competition, displacement, and degradation of the quality and
composition of its habitat (Gonzalez et al. 2008, entire; Simberloff et
al. 2013, entire). Surveys of Tiehm's buckwheat conducted between 1994
and 2010 did not document any occurrences of nonnative, invasive
species in its habitat (Morefield 1995, entire; Caicco and Edwards
2007, entire; Morefield 2008, entire; Morefield 2010, entire). However,
saltlover (Halogeton glomeratus) has since become established to some
degree and is part of the associated plant community in all
subpopulations of Tiehm's buckwheat (CBD 2019, pp. 20-21; Ioneer 2020a,
pp. 9-10). Vehicles can carry the seeds of nonnative, invasive plant
species into the area, and soil disturbances, such as mineral
exploration activities, can encourage the spread of saltlover, which
alters the substrate by making the soil more saline and less suitable
as habitat for Tiehm's buckwheat.
Road development and vehicle traffic associated with the proposed
mine as well as livestock grazing, which currently occurs within the
Tiehm's buckwheat population as part of the BLM's Silver Peak
allotment, may create conditions that further favor the establishment
of nonnative, invasive species within Tiehm's buckwheat habitat. For
example, Ioneer's Rhyolite Ridge lithium-boron project proposes to
construct and operate a quarry, processing plant, overburden storage
facility, spent ore storage facility, and access roads (Ioneer 2020b,
p. 11). If the project is approved, and these ground-disturbing
activities occur, there is a potential for increase in spread of
nonnative, invasive plant species. However, this possible increase
would depend on conditions associated with approval of the proposed
project. Under the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), BLM has the discretion to analyze best management practices to
help reduce the likelihood that nonnative, invasive plant species are
introduced and spread in Tiehm's buckwheat habitat.

Climate Change

The effects of climatic changes in the Great Basin depend largely
on the interaction of temperature and precipitation. Temperatures in
the Great Basin have increased over the past 100 years. Between 1895
and 2011, temperatures in the Great Basin have increased 1.2[deg] to
2.5 [deg]F (0.7[deg] to 1.4[deg]C), with a greater increase in the
southern Great Basin (where Eriogonum tiehmii occurs) than in the
northern Great Basin (Snyder et al. 2019, p. 3). Temperatures are
increasing more at night than during the day and more in winter than in
summer, leading to fewer cold snaps, more heatwaves, fewer frosty days
and nights, less snow, and earlier snowmelt (Snyder et al. 2019, p. 3;
Padgett et al. 2018, p. 167; Abatzoglou and Kolden 2013, entire;
Knowles et al. 2006, p. 4557; Mote et al. 2005, entire; Stewart et al.
2005, p. 1152). Although these observed trends provide information as
to how climate has changed in the past, climate models can be used to
simulate and develop future climate projections.
Simulations using downscaled methods from 20 global climate models
project mean average temperature during December, January, and February
for the Rhyolite Ridge area to increase by 2.3 [deg]F (1.3 [deg]C) by
2060 and 3.4 [deg]F (1.9 [deg]C) by 2099 under moderate emission
scenarios (RCP 4.5; Hegewisch and Abatzoglou (2020a). Under high
emission scenarios (RCP 8.5), mean average temperatures during winter
months increase by 3.6 [deg]F (2 [deg]C) by 2060 and 7.1 [deg]F (3.9
[deg]C) by 2099. Likewise, these models project maximum average
temperatures during June, July, and August for the Rhyolite Ridge area
to increase by 2.9 [deg]F (1.6 [deg]C) by 2060 and 4.1 [deg]F (2.3
[deg]C) by 2099 under moderate emission scenarios (RCP 4.5). Under high
emission scenarios (RCP 8.5), maximum average temperatures during
summer months increased by 4.6 [deg]F (2.6 [deg]C) by 2060 and 8.9
[deg]F (4.9 [deg]C) by 2099 (Hegewisch and Abatzoglou 2020a).
Additionally, simulations using these downscaling methods from
multiple models project annual precipitation for the Rhyolite Ridge
area to increase by 0.4 in (10.16 mm (milometers)) by 2060 and 0.6 in
(15.24 mm) by 2099 under moderate emission scenarios (RCP 4.5). Under
high emission scenarios (RCP 8.5), annual precipitation increases by
0.3 in (7.62 mm) by 2060 and 0.7 in (17.78 mm) by 2099 (Hegewisch and
Abatzoglou 2020a). Total precipitation was above average in the
Rhyolite Ridge area during the period 2015-2019, ranging from 6.1 to
8.7 in (15.5 to 22 cm) a year (Hegewisch and Abatzoglou 2020b).
Whereas, in 2020, total average precipitation for the same area was 2.7
in (6.8 cm; Hegewisch and Abatzoglou 2020c).
Tiehm's buckwheat is adapted to dry, upland sites, subject only to
occasional saturation by rain and snow. Increasing temperature can
affect precipitation patterns. The fraction of winter precipitation
(November-March) that falls as snow versus rain is declining in the
western United States (Palmquist et al. 2016, pp. 13-16). When
temperatures are cold enough to limit water losses from plant
transpiration and soils are not frozen, shifts from snow to rain may
have minimal impact on deep soil water storage. If rainfall replaces
snow and temperatures are increased enough to thaw soils to stimulate
plant growth and physiological activity earlier in the year, this
scenario would result in less deep soil water recharge (i.e., less soil
water infiltration and more evaporation) and potential changes in plant
community

[[Page 55784]]

composition (Huxman et al. 2005, entire).
Fire is a naturally occurring phenomenon that impacts the
distribution and structure of vegetation (Willis 2017, p. 52). However,
due to increasing temperatures and reductions in precipitation, the
severity and frequency of wildfires is likely to increase (Snyder et
al. 2019, p. 8; Comer et al. 2013, pp. 130-135; Chambers and Wisdom
2009, pp. 709-710). While the Great Basin is extremely prone to fires,
with 14 million ac (5.6 million ha) burning in the last 20 years, there
are no reported accounts of fire within Tiehm's buckwheat habitat or in
the surrounding Rhyolite Ridge area (BLM 2020, entire). We currently do
not have any data to indicate what level of effect wildfire could have
on Tiehm's buckwheat; however, it could result in habitat loss or
habitat fragmentation and/or remove Tiehm's buckwheat individuals.
The direct, long-term impact from climate change to Tiehm's
buckwheat is yet to be determined. The timing of phenological events,
such as flowering, are often related to environmental variables such as
temperature. Large-scale patterns of changing plant distributions,
flowering times, and novel community assemblages in response to rising
temperatures and changing rainfall patterns are apparent in many
vegetation biomes (Munson and Long 2017, entire; Willis 2017, pp. 44-
49; Hawkins et al. 2008, entire; Burgess et al. 2007, entire; Parmesan
2006, entire). However, we do not know if or how climate change may
alter the phenology of Tiehm's buckwheat or cause changes in pollinator
behavior.
In summary, Tiehm's buckwheat is adapted to dry, upland sites,
subject only to occasional saturation by rain and snow. Under climate
change predictions, we anticipate alteration of precipitation and
temperature patterns, as models forecast warmer temperatures and slight
increases in precipitation. The timing and type of precipitation
received (snow vs. rain) may impact plant transpiration and the soil
water recharge needed by Tiehm's buckwheat. Additionally, variability
in interannual precipitation combined with increasing temperatures, as
recently seen from 2015 through 2020, may make conditions less suitable
for Tiehm's buckwheat by bolstering local rodent populations. High
rodent abundance combined with high temperatures and drought may have
contributed to the large herbivore impacts in 2020 in both the
transplant experiment and native population. Thus, climate change may
exacerbate impacts from rodent herbivory currently affecting this
species and its habitat.

Conservation Measures and Regulatory Mechanisms

BLM

Tiehm's buckwheat is on the BLM Sensitive Species List (BLM 2008a,
pp. 1-48). Although Tiehm's buckwheat is managed as a BLM sensitive
species, BLM's regulations do not allow the agency to require
conservation measures for sensitive species as a condition for
exploring for, or developing minerals subject to disposal under the
Mining Law of 1872, as amended (30 U.S.C. 22-54; Mining Law). Under
BLM's handbook, the Silver Peak allotment permits grazing across
281,489 ac (113,915 ha) that also encompass the area occupied by
Tiehm's buckwheat. Under the Federal Land Policy and Management Act of
1976, as amended (43 U.S.C. 1701 et seq.), BLM has the discretion to
establish and implement special management areas, such as areas of
critical environmental concern, to reduce or eliminate actions that
adversely affect sensitive species, such as Tiehm's buckwheat. Although
Tiehm's buckwheat is a BLM sensitive species, there are no special
restrictions or terms and conditions regarding livestock use within the
Silver Peak allotment where this species occurs nor are there any on
the ground protections for Tiehm's buckwheat as a sensitive species.
BLM has best management practices (BMPs) for invasive and nonnative
species that focus on the prevention of further spread and/or
establishment of these species (BLM 2008b, pp. 76-77). BMPs should be
considered and applied where applicable to promote healthy, functioning
native plant communities, or to meet regulatory requirements. BMPs
include inventorying weed infestations, prioritizing treatment areas,
minimizing soil disturbance, and cleaning vehicles and equipment (BLM
2008b, pp. 76-77). However, incorporation or implementation of BMPs is
at the discretion of an authorized BLM officer.
In response to the recent herbivory event on Tiehm's buckwheat
subpopulations, BLM has been monitoring the species biweekly. Photo
plots were established near undamaged plants in subpopulations 1, 3,
and 6 to help determine whether herbivory is continuing (Crosby 2020a,
pers. comm.; Crosby 2020b, pers. comm.). Ocular estimates from the
photo plots indicate that herbivory is not ongoing (Crosby 2020b, pers.
comm.). Game cameras that were installed by BLM when damage to the
species was first reported were removed in mid-November 2020 but may be
reinstalled if deemed necessary (Crosby 2020a, pers. comm.).

Ioneer

As part of the proposed Rhyolite Ridge lithium-boron project,
Ioneer is developing a conservation plan for Tiehm's buckwheat to
protect and preserve the continued viability of the species on a long-
term basis. The conservation plan is in the early stages of
development.
Ioneer has also implemented or proposed various protection measures
for Tiehm's buckwheat. Ioneer funded the development of a habitat
suitability model to identify additional potential habitat for Tiehm's
buckwheat through field surveys (Ioneer 2020a, p. 12). In addition, a
demographic monitoring program was initiated in 2019 to detect and
document trends in population size, acres inhabited, size class
distribution, and cover with permanent monitoring transects established
in subpopulations 1, 2, 3, 4, and 6 (Ioneer 2020a, p. 16). Ioneer also
funded collection of Tiehm's buckwheat seed in 2019 (Ioneer 2020a, pp.
13-14). Some of this seed was used by the University of Nevada, Reno,
for a propagation trial and transplant study (Ioneer 2020a, p. 14). The
remainder of this seed is in long-term storage at Rae Selling Berry
Seed Bank at Portland State University (Ioneer 2020a, p. 13). Ioneer's
proposed plans include avoiding subpopulations 1, 2, 3, and 8 (5,289
plants; Ioneer 2020a, p. 11), installing fences and signage around
subpopulations 1 and 2 (Ioneer 2020a, p. 11), and removing and
salvaging all remaining plants in subpopulations 4, 5, 6, and 7
(16,205-11,701 plants depending on if damaged plants recover from
herbivory) and translocating them to another location (Ioneer 2020a, p.
15). However, the proposed project may or may not be permitted by BLM,
thus these protection measures may or may not be fully implemented.

Summary of Current Condition

Data about the Tiehm's buckwheat population are sparse, as research
and monitoring to better understand the species are still in their
infancy (Grant 2020, entire; Ioneer 2020a, pp. 11-18; McClinton et al.
2020, entire; Service 2020, entire). As a result, little is known about
subpopulation connectivity and dispersal (i.e., gene-flow) and
recruitment and/or seedling establishment, to inform population trend.
Further studies and monitoring need to be conducted to determine if
management to reduce herbivory is necessary to maintain Tiehm's

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buckwheat individuals and subpopulations, or if the 2020 event was just
a random catastrophic event that is not likely to occur on a regular
basis.
Globally, Tiehm's buckwheat is known from 8 subpopulations that
make up a single population (Table 1). Surveys have not detected
additional populations of Tiehm's buckwheat. Tiehm's buckwheat
substantially contributes to supporting the high abundance and
diversity of arthropods and pollinators found in the Rhyolite Ridge
area. A specific set of soil conditions are required for the growth of
Tiehm's buckwheat, as the species is specifically adapted to grow on
its preferred soil type (Ioneer 2020a, p. 5; Morefield 1995, p. 10).
Tiehm's buckwheat occurs entirely on 10 ac (4 ha) of Federal lands
with sparse associations of other plant species. Rare plant species,
like Tiehm's buckwheat, that have restricted ranges, specialized
habitat requirements, and limited recruitment and dispersal have a
higher risk of extinction due to demographic uncertainty and random
environmental events. Under current conditions, primary threats to the
species include mineral exploration and development, road development
and OHV use, livestock grazing, nonnative, invasive plant species,
herbivory, and climate change. Many of the threats currently affecting
the species have the potential to work in combination. For example,
mineral exploration, road development and OHV use, and livestock
grazing can introduce nonnative, invasive plant species, which in turn
can directly compete with and displace Tiehm's buckwheat within its
habitat. With only one population (8 subpopulations), the risks to a
small plant population like Tiehm's buckwheat include losses in
reproductive individuals, declines in seed production and viability,
loss of pollinators, loss of genetic diversity, and Allee effects
(Willis 2017, pp. 74-77; Berec et al. 2007, entire; Eisto et al. 2000,
pp. 1418-1420) which will impact a species that already has very
limited redundancy and representation.

Determination of Tiehm's Buckwheat Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines endangered species as a species
``in danger of extinction throughout all or a significant portion of
its range,'' and threatened species as a species ``likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether a species meets the definition of endangered species or
threatened species because of any of the 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 existence.

Status Throughout All of Its Range

After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
found that the population occurs in an extremely small area, has
specialized habitat requirements, and has limited recruitment and
dispersal. Our analysis revealed that the species is vulnerable to
ongoing and future threats that affect both individual plants and their
habitat.
We have carefully assessed the best scientific and commercial
information available regarding the current and future threats to
Tiehm's buckwheat. We considered the five factors identified in section
4(a)(1) of the Act in determining whether Tiehm's buckwheat meets the
definition of an endangered species (section 3(6)) or threatened
species (section 3(20)). We find that Tiehm's buckwheat is in danger of
extinction due to the present or threatened destruction, modification,
or curtailment of its habitat or range including habitat loss and
degradation due to mineral exploration and development, road
development and OHV use, livestock grazing, and nonnative, invasive
plant species (all Factor A threats); herbivory (Factor C); and climate
change (Factor E). Of these, we consider mineral exploration and
development and herbivory to be the greatest threats to Tiehm's
buckwheat. The existing regulatory mechanisms (Factor D) are inadequate
to protect the species from these threats. We did not identify threats
to the continued existence of Tiehm's buckwheat due to overutilization
for commercial, recreational, scientific, or educational purposes
(Factor B).
In 2020, a detrimental herbivory event caused greater than 50
percent damage or loss of individual Tiehm's buckwheat plants across
all subpopulations. Cumulative impacts from the herbivory and the
proposed Rhyolite Ridge lithium-boron project (if permitted by BLM)
would reduce the total Tiehm's buckwheat population by 70 to 88
percent, or from 43,921 individuals to roughly 5,289-8,696 individuals
as we do not know yet if damaged plants will be able to recover and
survive or if translocating plants is feasible. Road development and
vehicle traffic associated with the proposed mine as well as livestock
grazing may further affect the overall health and physiological
processes of individual Tiehm's buckwheat plants and create conditions
that further favor the establishment of nonnative, invasive species
within the species' habitat. Increased temperatures and alteration of
precipitation patterns due to climate change may impact plant
transpiration and soil water recharge needed by Tiehm's buckwheat, as
well as bolstering local rodent populations. High rodent abundance
combined with high temperatures and drought may have contributed to the
herbivore impacts in 2020.
We find that Tiehm's buckwheat is in danger of extinction
throughout all of its range due to the severity and immediacy of
threats currently impacting the species now and those which are likely
to occur in the near term. We find that a threatened species status is
not appropriate because the threats are severe and imminent, and
Tiehm's buckwheat is in danger of extinction now, as opposed to likely
to become endangered in the future. Therefore, on the basis of the best
available scientific and commercial information, we propose listing
Tiehm's buckwheat as an endangered species in accordance with sections
3(6), 3(20), and 4(a)(1) of the Act.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Tiehm's buckwheat is in danger
of extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portion of its range. Because
the Tiehm's buckwheat warrants listing as endangered throughout all of
its range, our determination is consistent with the decision in Center
for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28,
2020), in which the court vacated the aspect of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (79 FR 37578; July 1, 2014) that provided the
Service does not

[[Page 55786]]

undertake an analysis of significant portions of a species' range if
the species warrants listing as threatened throughout all of its range.

Determination of Status

Our review of the best available scientific and commercial
information indicates that the Tiehm's buckwheat meets the Act's
definition of an endangered species. Therefore, we propose to list the
Tiehm's buckwheat as an endangered species in accordance with sections
3(6), and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(https://www.fws.gov/endangered), or from our Reno Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of Nevada could be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the Tiehm's buckwheat. Information on our
grant programs that are available to aid species recovery can be found
at: https://www.fws.gov/grants.
Although the Tiehm's buckwheat is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by BLM or other Federal
agencies (or permitted or funded by a Federal agency).
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR
17.61, make it illegal for any person subject to the jurisdiction of
the United States to: Import or export; remove and reduce to possession
from areas under Federal jurisdiction; maliciously damage or destroy on
any such area; remove, cut, dig up, or damage or destroy on any other
area in knowing violation of any law or regulation of any State or in
the course of any violation of a State criminal trespass law; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity; or
sell or offer for sale in interstate or foreign commerce an endangered
plant. Certain exceptions apply to employees of the Service, the
National Marine Fisheries Service, other Federal land management
agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.62. With regard to
endangered plants, a permit may be issued for scientific purposes or
for enhancing the propagation or survival of the species. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR

[[Page 55787]]

34272), to identify to the maximum extent practicable at the time a
species is listed, those activities that would or would not constitute
a violation of section 9 of the Act. The intent of this policy is to
increase public awareness of the effect of a proposed listing on
proposed and ongoing activities within the range of the species
proposed for listing. Based on the best available information, the
following actions are unlikely to result in a violation of section 9,
if these activities are carried out in accordance with existing
regulations and permit requirements; this list is not comprehensive:
(1) OHV or other vehicle use on existing roads and trails in
compliance with the BLM Tonopah Field Office's resource management
plan.
(2) Recreational use with minimal ground disturbance (e.g., hiking,
walking).
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized handling, removing, trampling, or collecting of
the Tiehm's buckwheat on Federal land; and
(2) Removing, cutting, digging up, or damaging or destroying the
Tiehm's buckwheat in knowing violation of any law or regulation of the
State of Nevada or in the course of any violation of a State criminal
trespass law.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Reno
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features that are:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat'' as follows: ``For the
purposes of designating critical habitat only, habitat is the abiotic
and biotic setting that currently or periodically contains the
resources and conditions necessary to support one or more life
processes of a species.''
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
consider unoccupied areas to be essential only where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.

[[Page 55788]]

Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
As the regulatory definition of ``habitat'' indicates (50 CFR
424.02), habitat is dynamic, and species may move from one area to
another over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available at the time of those planning efforts calls for a different
outcome.

Critical Habitat Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier, there is currently no threat of collection or
vandalism identified for this species under Factor B, and
identification and mapping of critical habitat is not expected to
initiate any such threat. In our SSA report and proposed listing
determination for the Tiehm's buckwheat, we determined that the present
or threatened destruction, modification, or curtailment of habitat or
range is a threat to Tiehm's buckwheat and that those threats in some
way can be addressed by section 7(a)(2) consultation measures. The
species occurs wholly in the jurisdiction of the United States, and we
are able to identify areas that meet the definition of critical
habitat. Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) have been met and because the
Secretary has not identified other circumstances for which this
designation of critical habitat would be not prudent, we have
determined that the designation of critical habitat is prudent for
Tiehm's buckwheat.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for Tiehm's
buckwheat is determinable. Our regulations at 50 CFR 424.12(a)(2) state
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. A careful assessment of the economic impacts that may occur
due to a critical habitat designation is still ongoing, and we are in
the process of working with the States and other partners in acquiring
the complex information needed to perform that assessment. Therefore,
the information sufficient to perform a required analysis of the
impacts of the designation is lacking. For this reason, we conclude
that the designation of critical habitat for the Tiehm's buckwheat is
not determinable at this time.
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)); however, as described further in
Previous Federal Actions, we are subject to a District of Nevada court
order to submit to the Federal Register a proposed critical habitat
determination by January 31, 2022 (or May 2, 2022 if the determination
is deemed a ``significant regulatory action'' by the Office of
Management and Budget).

Required Determinations

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the

[[Page 55789]]

Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act in connection with regulations adopted pursuant to section 4(a) of
the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This position was upheld by the U.S. Court of Appeals for the
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. At this time, we are not aware of
Tribal lands occurring within the range of the Tiehm's buckwheat.

References Cited

A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
Reno Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the U.S. Fish and Wildlife Service's Species Assessment Team and the
Reno Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.

0
2. Amend Sec. 17.12(h), the List of Endangered and Threatened Plants,
by adding an entry for ``Eriogonum tiehmii (Tiehm's buckwheat)'' in
alphabetical order under Flowering Plants to read as set forth below:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Eriogonum tiehmii............... Tiehm's buckwheat.. Wherever found..... E [Federal Register
citation when published
as a final rule]

* * * * * * *
----------------------------------------------------------------------------------------------------------------

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-21651 Filed 10-6-21; 8:45 am]
BILLING CODE 4333-15-P