[Federal Register Volume 62, Number 122 (Wednesday, June 25, 1997)]
[Proposed Rules]
[Pages 34190-34197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16605]



[[Page 34190]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE25


Endangered and Threatened Wildlife and Plants; Proposed 
Endangered Status for the Plant Eriogonum Apricum (Ione Buckwheat) and 
Proposed Threatened Status for the Plant Arctostaphylos Myrtifolia 
(Ione Manzanita)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) proposes endangered 
status pursuant to the Endangered Species Act of 1973, as amended 
(Act), for Eriogonum apricum (inclusive of vars. apricum and 
prostratum) (Ione buckwheat). The Service also proposes threatened 
status for Arctostaphylos myrtifolia (Ione manzanita). These two 
species occur primarily on soils derived from the Ione Formation in 
Amador or Calaveras counties in the central Sierra Nevada foothills of 
California and are imperiled by one or more of the following factors--
mining, clearing of vegetation for agriculture and fire protection, 
disease, inadequate regulatory mechanisms, habitat fragmentation, 
residential and commercial development, changes in fire frequency, and 
continued erosion due to prior off-road vehicle use. Random events 
increase the risk to the few, small populations of E. apricum. This 
proposal, if made final, would implement the Federal protection and 
recovery provisions afforded by the Act for these plants.

DATES: Comments from all interested parties must be received by August 
25, 1997. Public hearing requests must be received by August 11, 1997.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Sacramento Field Office, U.S. Fish and 
Wildlife Service, 3310 El Camino Avenue, Suite 130, Sacramento, 
California 95821-6340. Comments and materials received, as well as the 
supporting documentation used in preparing the rule, will be available 
for public inspection, by appointment, during normal business hours at 
the above address.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp, Sacramento Field Office 
(see ADDRESSES section) (telephone 916/979-2120; facsimile 916/979-
2128).

SUPPLEMENTARY INFORMATION:

Background

    Arctostaphylos myrtifolia (Ione manzanita), Eriogonum apricum var. 
apricum (Ione buckwheat), and Eriogonum apricum var. prostratum (Irish 
Hill buckwheat) are found primarily in western Amador County, about 70 
kilometers (km) (40 miles (mi)) southeast of Sacramento in the central 
Sierra Nevada foothills of California. Most populations occur at 
elevations between 90 and 280 meters (m) (280 to 900 feet (ft)). A few 
isolated occurrences of A. myrtifolia occur in adjacent northern 
Calaveras County.
    Both species included in this proposal exhibit marked substrate 
preferences and grow in openings within chaparral vegetation on 
lateritic soils crusts (cement-like crusts of yellow iron oxide) 
developed under a subtropical or tropical climate during the Eocene 
(35-57 million years before present); the laterite is associated with 
the Ione Formation (Allen 1929). The ``Ione soils'' in the area are 
coarse-textured and exhibit soil properties typical of those produced 
under tropical climates such as high acidity, high aluminum content, 
and low fertility (Singer 1978). These soils and the sedimentary 
deposits with which they are associated also contain large amounts of 
commercially valuable minerals including quartz sands, kaolinitic 
clays, lignite (low-grade coal), and possible gold-bearing gravels 
(Chapman and Bishop 1975). The nearest modern-day relatives to these 
soils occur in Hawaii and Puerto Rico (Singer 1978).
    The vegetation in the Ione area is distinctive enough to be 
designated as ``Ione chaparral'' in a classification of plant 
communities in California (Holland 1986). Stebbins (1993) characterized 
the Ione chaparral as an ecological island, which he defined as a 
relatively small area with particular climatic and ecological features 
that differ significantly from surrounding areas. This plant community 
occurs only on very acidic, nutrient-poor, coarse soils, and is 
comprised of low-growing heath-like shrubs and scattered herbs (Holland 
1986). The dominant shrub is Arctostaphylos myrtifolia, which is 
narrowly endemic to the area. Ione chaparral is restricted in 
distribution to the vicinity of Ione in Amador County, and a few local 
areas of adjacent northern Calaveras County where the community is 
estimated to cover 2,430 hectares (ha) (6,000 acres (ac)) (California 
Natural Diversity Database (CNDDB) 1994). The endemic plants that grow 
here are thought to do so because they can tolerate the acidic, 
nutrient-poor conditions of the soil which exclude other plant species; 
the climate of the area may be moderated by its position due east of 
the Golden Gate (Gankin and Major 1964, Roof 1982).

Discussion of the Two Species Proposed for Listing

    Parry (1887) described Arctostaphylos myrtifolia based upon 
material collected near Ione, California. Subsequent authors variously 
treated this taxon as Uva-ursi myrtifolia (Abrams 1914), A. nummularia 
var. myrtifolia (Jepson 1922), Schizococcus myrtifolius (Eastwood 
1934), and Arctostaphylos uva-ursi ssp. myrtifolia (Roof 1982). Wells 
(1993), in his treatment of California Arctostaphylos, maintained the 
species as A. myrtifolia.
    Arctostaphylos myrtifolia is an evergreen shrub of the heath family 
(Ericaceae) that lacks a basal burl. Attaining a height of generally 
less than 1.2 m (3.8 ft), plants appear low and spreading. The bark is 
red, smooth, and waxy. Olive green, narrowly elliptic leaves are 6 to 
15 millimeters (mm) (0.2 to 0.6 inches (in.)) long. Red scale-like 
inflorescence bracts are 1 to 2 mm (0.1 in.) long. White or pinkish 
urn-shaped flowers appear from January to February. The fruit is 
cylindric. The species depends almost entirely on fire to promote seed 
germination (Wood and Parker 1988). Arctostaphylos myrtifolia can be 
distinguished from other species in the same genus by its smaller 
stature and the color of its leaves.
    Arctostaphylos myrtifolia is reported from 17 occurrences (CNDDB 
1997). Because most of these occurrences are based on the collection 
localities of individual specimens, it is uncertain how many stands 
these 17 occurrences represent. Arctostaphylos myrtifolia may occur in 
about 100 individual stands which cover a total of about 400 ha (1,000 
ac) (Roy Woodward, Bechtel, in litt. 1994). It occurs primarily on 
outcrops of the Ione Formation within an area of about 91 square (sq.) 
km (35 sq. mi) in Amador County. In addition, a few disjunct 
populations occur in Calaveras County. The populations range in 
elevation from 60 to 580 m (190 to 1900 ft), with the largest 
populations occurring at elevations between 90 and 280 m (280 and 900 
ft) (Wood and Parker 1988). Arctostaphylos myrtifolia is the dominant 
and characteristic species of Ione chaparral, where it occurs in pure 
stands. It also occurs in an ecotone with surrounding taller chaparral 
types, but it does not persist if it is shaded (R. Woodward, in litt. 
1994). It is impossible to quantify the amount of A. myrtifolia habitat 
already lost to mining because information

[[Page 34191]]

regarding the total mineral production as well as the total acreage of 
land newly disturbed by a mining operation is proprietary (Maryann 
Showers, California Department of Mining and Geology, pers. comm. 
1994). Although the exact area of habitat lost is unknown, a 
significant loss of habitat has occurred (Roof 1982; Stebbins 1993; 
Wood, in litt. 1994). Mining, disease, clearing of vegetation for 
agriculture and fire protection, inadequate regulatory mechanisms, 
habitat fragmentation, residential and commercial development, changes 
in fire frequency, and ongoing erosion threaten various populations of 
this plant (CNDDB 1997; Ed Bollinger, Acting Area Manager, Bureau of 
Land Management (BLM), Folsom Resource Area, in litt. 1994, Michael 
Wood, Botanical Consultant, in litt. 1994). Arctostaphylos myrtifolia 
occurs primarily on private or non-Federal lands. The BLM manages one 
occurrence on the Ione Manzanita Area of Critical Environmental Concern 
(ACEC). Four small, pure populations and several smaller, mixed 
populations also occur on the state-owned Apricum Hill Ecological 
Reserve managed by the California Department of Fish and Game (CDFG) 
(Wood and Parker 1988).
    Eriogonum apricum comprises two varieties--Eriogonum apricum var. 
apricum and E. apricum var. prostratum. Descriptions are provided below 
for each of the varieties.
    Howell described the species Eriogonum apricum (Ione buckwheat) in 
1955 based on a specimen collected in the foothills of the Sierra 
Nevada near Ione, Amador County, California. Myatt described a variety 
of the Ione buckwheat, E. apricum var. prostratum (Irish Hill 
buckwheat) in 1970. According to the rules for botanical nomenclature, 
when a new variety is described in a species not previously divided 
into infraspecific taxa, an autonym (an automatically generated name) 
is created. In this case, the autonym is Eriogonum apricum var. 
apricum.
    Both varieties, Eriogonum apricum vars. apricum and prostratum, are 
perennial herbs in the buckwheat family (Polygonaceae). Eriogonum 
apricum var. apricum is glabrous (smooth, without hairs or glands) and 
grows upright to 8 to 20 centimeters (cm) (3 to 8 in.) in height. Its 
leaves are basal, round to oval, and 3 to 5 mm (0.1 to 0.3 in.) wide. 
The calyx (outer whorl of flower parts) is white with reddish midribs. 
Eriogonum apricum var. apricum flowers from July to October, and is 
restricted to 9 occurrences occupying a total of approximately 4 ha (10 
ac) (The Nature Conservancy 1984) on otherwise barren outcrops within 
the Ione chaparral. Of the 9 known occurrences of E. apricum var. 
apricum, one is partially protected by CDFG (CNDDB 1994). Eriogonum 
apricum var. apricum occurs primarily on private or non-Federal land; 
BLM manages one occurrence. Mining, clearing of vegetation for 
agriculture and for fire protection, inadequate regulatory mechanisms, 
habitat fragmentation, increased residential development, and erosion 
threaten both populations of this plant.
    Eriogonum apricum var. prostratum has smaller leaves, a prostrate 
habit (lying flat), and an earlier flowering time than E. apricum var. 
apricum. The 2 known occurrences of E. apricum var. prostratum are 
restricted to otherwise barren outcrops on less than 0.4 ha (1 ac) in 
openings of Ione chaparral on private land. Mining, inadequate 
regulatory mechanisms, habitat fragmentation, erosion, and random 
events threaten the occurrences of this plant.

Previous Federal Action

    Federal government actions on both plants began as a result of 
section 12 of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), which directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct in the United States. This report, 
designated as House Document No. 94-51, was presented to Congress on 
January 9, 1975, and included Arctostaphylos myrtifolia, Eriogonum 
apricum var. apricum and E. apricum var. prostratum as endangered 
species. The Service published a notice on July 1, 1975 (40 FR 27823) 
of its acceptance of the report of the Smithsonian Institution as a 
petition within the context of section 4(c)(2) (petition provisions are 
now found in section 4(b)(3) of the Act) and its intention to review 
the status of the plant taxa named therein. The above three taxa were 
included in the July 1, 1975, notice. On June 16, 1976, the Service 
published a proposal (41 FR 24523) to determine approximately 1,700 
vascular plant species to be endangered species pursuant to section 4 
of the Act. The list of 1,700 plant taxa was assembled on the basis of 
comments and data received by the Smithsonian Institution and the 
Service in response to House Document No. 94-51 and the July 1, 1975, 
Federal Register publication. Arctostaphylos myrtifolia, E. apricum 
var. apricum, and E. apricum var. prostratum were included in the June 
16, 1976, Federal Register document.
    General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, rule (43 FR 17909). Amendments to the 
Act in 1978 required that all proposals over 2 years old be withdrawn. 
A 1-year grace period was given to those proposals already more than 2 
years old. In a December 10, 1979, notice (44 FR 70796), the Service 
withdrew the June 16, 1976, proposal, along with four other proposals 
that had expired.
    The Service published a Notice of Review for plants on December 15, 
1980 (45 FR 82480) that listed those plants currently considered for 
listing as endangered or threatened. The three taxa were included as 
candidates for Federal listing in this document. Candidate taxa are 
those for which the Service has on file substantial information on 
biological vulnerability and threats to support preparation of listing 
proposals. The November 28, 1983, supplement to the Notice of Review 
(48 FR 53640) made no changes to the designation for these taxa.
    The plant notice was revised again on September 27, 1985 (50 FR 
39526), February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 
51144). In these three notices, Arctostaphylos myrtifolia, Eriogonum 
apricum var. apricum and E. apricum var. prostratum were again included 
as candidates. All three taxa were also included as candidates in the 
February 28, 1996, Notice of Review (61 FR 7596).
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on pending petitions within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further requires that 
all petitions pending on October 13, 1982, be treated as having been 
newly submitted on that date. This was the case for Arctostaphylos 
myrtifolia, Eriogonum apricum var. apricum and E. apricum var. 
prostratum, because the 1975 Smithsonian report had been accepted as a 
petition. On October 13, 1982, the Service found that the petitioned 
listing of these species was warranted, but precluded by other pending 
listing actions, in accordance with section 4(b)(3)(B)(iii) of the Act; 
notification of this finding was published on January 20, 1984 (49 FR 
2485). Such a finding requires the petition to be recycled, pursuant to 
section 4(b)(3)(C)(I) of the Act. The finding was reviewed annually in 
October of 1983 through 1994. Publication of this proposal constitutes 
the final finding for the petitioned action.
    Eriogonum apricum has a listing priority number of 2 (each variety 
has a listing priority number of 3).

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Arctostaphylos myrtifolia has a listing priority number of 8. 
Processing of this rule is a Tier 3 action under the current listing 
priority guidance (61 FR 64480).

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists of endangered and threatened 
species. A species may be determined to be endangered or threatened due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to Arctostaphylos myrtifolia C. Parry 
(Ione manzanita) and Eriogonum apricum J. Howell (inclusive of vars. 
apricum and prostratum R. Myatt) (Ione buckwheat) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Nearly all occurrences of both 
plant species occur on private or non-Federal land. The primary threat 
facing both species is the ongoing and threatened destruction and 
modification of their habitat by mining for silica sand, clay, lignite, 
common sand and gravel, and reclamation of mined lands to vegetation in 
which these species cannot exist. A lesser degree of threat is posed by 
commercial or residential development, clearing for agriculture and 
fire protection, and continued erosion due to previous fireline 
construction and a driver training course used by fire fighters.
    The habitat of Arctostaphylos myrtifolia and Eriogonum apricum 
occurs in areas that contain valuable minerals. Clay mining began in 
the Ione area around 1860. Since this time, the Ione area has produced 
about a third of the fire clay in California (Chapman and Bishop 1975). 
Lignite, a low-grade coal, also has been mined in the Ione area since 
the early 1860's, initially as a fuel source, but more recently for wax 
used for industrial purposes. Chapman and Bishop (1975) reported the 
Ione lignites were the only lignites used commercially in the United 
States in the production of a specialized wax (montan wax). Quartz sand 
used in making glass containers, and laterite, used for making cement, 
also are commercially mined in the Ione area (Chapman and Bishop 1975). 
Common sands and gravels are also mined for various uses. Mining of all 
of these deposits has resulted in the direct removal of habitat for 
both plant species (Michael Wood, Botanical Consultant, in litt. 1994; 
Wood and Parker 1988; V. Thomas Parker, San Francisco State University, 
in litt. 1994). Strip mining of silica for glass and clay for ceramics 
and industrial filters has extirpated populations of A. myrtifolia 
north and south of Highway 88 (Roof 1982).
    By 1982, a significant amount of habitat already had been lost 
(Roof 1982; Stebbins 1993; Wood, in litt. 1994). Fifteen active surface 
mines on private land near Ione continue to remove the habitat of both 
plants; approved reclamation plans show that in excess of 1,400 ha 
(3,500 ac) of surface removal will occur (mining reports on file at 
California Department of Geology and Mines; CDFG 1992; V. Thomas 
Parker, in litt. 1994; Michael K. Wood, in litt. 1994). The exact 
amount of habitat loss to date cannot be quantified because information 
regarding the total mineral production as well as the total acreage of 
land newly disturbed by a mining operation is proprietary (Maryann 
Showers, pers. comm. 1994). Based on an estimate derived from mining 
reports on file at California Department of Geology and Mines, over 
half of the Ione chaparral habitat, numerous stands of Arctostaphylos 
myrtifolia, and most of the occurrences of Eriogonum apricum occur 
within areas that will be impacted by the 15 mines. Mining has 
eliminated several populations of A. myrtifolia south of Ione since 
1990 (V. Thomas Parker, in litt. 1994). The East Lambert Project, a 
proposed open pit to mine clay, lignite, and silica, if approved, would 
remove part of a population of A. myrtifolia. Clay mining threatens one 
of the two remaining populations of Eriogonum apricum var. prostratum 
(CDFG 1991). The second population is not protected and potentially 
could be mined (CDFG 1991). Most of the 9 populations of E. apricum 
var. apricum occur on private land that is not protected and could be 
mined.
    As discussed in Factor D, mining reclamation results in conversion 
of former habitat to rangeland, pasture, and other agricultural uses. 
Additionally, once the area is mined, the specialized substrate 
required by the plants may no longer be present. This type of 
disturbance permanently precludes restoration of habitat suitable for 
Arctostaphylos myrtifolia and Eriogonum apricum. To a lesser extent, 
land conversion to grazing and agriculture also has degraded or 
destroyed the habitat for these plants (Michael Wood, in litt. 1994; 
Wood and Parker 1988; V. Thomas Parker, in litt. 1994). Both activities 
continue to pose threats to the habitat of the subject plant taxa.
    Commercial and residential development also threatens the habitat 
of Arctostaphylos myrtifolia. In 1993, a 43 ha (107 ac) parcel in the 
City of Ione reported to have A. myrtifolia was cleared, presumably to 
facilitate future development (Randy L. Johnsen, Ione City 
Administrator, in litt. 1994). The Amador County master plan has zoned 
an area in the northern Ione chaparral near Carbondale for industrial 
uses. This area of about 75 ha (185 ac) is proposed to be developed 
over the next 10 years (Ron Mittlebrunn, Amador Council of Economic 
Development, pers. comm. 1994). Zoning for most lands outside the City 
of Ione permits one house on 16 ha (40 ac) density (Gary Clark, Amador 
County Planning Department, in litt. 1994). Habitat loss and 
degradation outside the City of Ione results from development of small 
ranches and associated clearing for fire protection, pastures, 
buildings, and infrastructure (G. Clark, in litt. 1994). Clearing 
destroys individual plants of both species and fragments and degrades 
the habitat.
    Mining operations, land clearing for agriculture; and commercial 
and residential development have fragmented and continue to fragment 
and isolate the habitat of Arctostaphylos myrtifolia in Amador County. 
Habitat fragmentation may disrupt natural ecosystem processes by 
changing the amount of incoming solar radiation, water, wind, and/or 
nutrients (Saunders et al. 1991) and further exacerbates the impacts of 
mining, off-road vehicular use, and other human activities.
    The population of Arctostaphylos myrtifolia occurring on the BLM 
Ione Manzanita ACEC was degraded by California Department of Forestry's 
training activities. Building firelines and conducting driver training 
courses resulted in a criss-crossing of roads and trails within the 
ACEC that reduced and fragmented the habitat (BLM 1989). Although these 
practices were discontinued in 1991 the roads have not revegetated 
naturally and continued erosion of the roads and adjacent habitat 
remains a concern (Ed Bollinger, BLM, Folsom Resource Area, in litt. 
1994).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Overutilization is not currently known to be a 
factor for the two plants, but unrestricted collecting for scientific 
or horticultural purposes or excessive visits by individuals interested 
in seeing rare plants could potentially result for Eriogonum apricum 
from increased publicity as a result of this proposal.
    C. Disease or predation. Livestock graze one population of 
Eriogonum apricum var. prostratum, but grazing is not considered to be 
harmful (CNDDB

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1994). An unidentified fungal pathogen has caused major die-back of 
partial or entire stands of Arctostaphylos myrtifolia throughout its 
range (Wood and Parker 1988; Wood, in litt. 1994). The majority of 
populations of A. myrtifolia show signs of die-back. The fungal disease 
is a serious problem for the populations south of Ione (M. Wood, pers. 
comm. 1994). Stands along Highway 88 that were healthy a few years ago 
are being killed with little evidence of seedlings regeneration (Neil 
Havlik, Solano County Farmland and Open Space Foundation, pers. comm. 
1994). Wood and Parker conducted a series of controlled burns to test 
the regeneration of stands that had no, partial, and complete die-back. 
To date, stands that were completely killed by the fungus before 
burning have not regenerated. Healthy and partially affected stands 
regenerated, but it is not yet known if this regeneration will result 
in healthy stands (M. Wood, in litt. 1994).
    D. The inadequacy of existing regulatory mechanisms. Eriogonum 
apricum vars. apricum and prostratum are listed as endangered under the 
California Endangered Species Act (chapter 1.5 section 2050 et seq. of 
the California Fish and Game Code and Title 14 California Code of 
Regulations 670.2). Individuals are required to obtain a management 
authorization with the California Department of Fish and Game (CDFG) to 
possess or ``take'' a listed species under the California Endangered 
Species Act. Although the ``take'' of State-listed plants is prohibited 
(California Native Plant Protection Act, chapter 10 sec. 1908 and 
California Endangered Species Act, chapter 1.5 sec. 2080), State law 
appears to exempt the taking of such plants via habitat modification or 
land use changes by the owner. This State law does not necessarily 
prohibit activities that could extirpate this species. After CDFG 
notifies a landowner that a State-listed plant grows on his or her 
property, State law requires only that the land owner notify the agency 
``at least 10 days in advance of changing the land use to allow salvage 
of such a plant'' (Native Plant Protection Act, chapter 10 sec. 1913). 
Ten days may not allow adequate time for agencies to coordinate the 
salvage of the plants.
    The California Environmental Quality Act (CEQA) (chapter 2 section 
21050 et seq. of the California Public Resources Code) requires a full 
disclosure of the potential environmental impacts of proposed projects. 
The public agency with primary authority or jurisdiction over the 
project is designated as the lead agency and is responsible for 
conducting a review of the project and consulting with the other 
agencies concerned with the resources affected by the project. Section 
15065 of the CEQA guidelines, now undergoing amendment, requires a 
finding of significance if a project has the potential to ``reduce the 
number or restrict the range of a rare or endangered plant or animal.'' 
Species that are eligible for listing as rare, threatened, or 
endangered are given the same protection as species officially listed 
under the State or Federal governments. Once significant effects are 
identified, the lead agency has the option to require mitigation for 
effects through changes in the project or to decide that overriding 
considerations make mitigation infeasible. In the latter case, projects 
may be approved that cause significant environmental damage, such as 
the destruction of State-listed endangered species. The protection of 
Eriogonum apricum var. apricum, E. apricum var. prostratum, and 
Arctostaphylos myrtifolia under CEQA is therefore dependent upon the 
discretion of the lead agency.
    Section 21080(b) of CEQA allows certain projects to be exempted 
from the CEQA process. Ministerial projects, those projects that the 
public agency must approve after the applicant shows compliance with 
certain legal requirements, may be approved or carried out without 
undertaking CEQA review. Examples of ministerial projects include final 
subdivision map approval and most building permits (Bass and Herson 
1994).
    The California Surface and Mining Reclamation Act of 1975 (CSMRA) 
(chapter 9, section 2710 et seq. of the California Public Resources 
Code) requires that adverse environmental effects are prevented or 
minimized and that mined lands are reclaimed to a useable condition 
that is readily adaptable for alternative land uses. Although CSMRA 
requires reclamation for mining activities, the standards for 
reclamation and the success of any revegetation is judged on the 
approved end use of the land. Approved examples of these end uses for 
mining activities within the Ione area include water storage for 
irrigation, grazing, rangeland, seeding with grasses for pasture, and 
intensive agriculture (mining reports on file at California Department 
of Geology and Mines). CSMRA does not require replacement of the same 
vegetation type, species, or percentage of vegetation cover as the 
habitat that is lost. No approved mining reclamation plans included 
measures to attempt restoration of either Arctostaphylos myrtifolia or 
Eriogonum apricum, although one plan indicated an intention to allow A. 
myrtifolia, known to occur on the site, to re-establish itself (mining 
reports on file at California Department of Geology and Mines). As a 
result, reclamation of mining impacts will not result in re-
establishment of the native vegetation. CSMRA also does not apply to 
the prospecting or extraction of minerals for commercial purposes, as 
well as the removal of material that lies above or between natural 
mineral deposits in amounts less than 760 cubic m (1,000 cubic yards) 
in any location of 0.4 ha (1 ac) or less.
    CSMRA is also inadequate for protection of the species subject to 
this proposed rule because reclamation plans are required to be 
submitted only for operations conducted after January 1, 1976. Surface 
mining operations that were permitted or authorized prior to January 1, 
1976, are not required to submit reclamation plans as long as no 
substantial changes are made in their operation. The lead agency is 
responsible for determining what constitutes a substantial change in 
operation.
    Although the City of Ione General Plan and the Environmental Impact 
Report of the Banks annexation to the City of Ione includes the 
protection of Arctostaphylos myrtifolia and Eriogonum apricum as a 
goal, the City has no regulatory mechanism to stop land clearing and/or 
preserve natural habitat (R. Johnsen, in litt. 1994).
    Two preserves support occurrences of Arctostaphylos myrtifolia and 
Eriogonum apricum var. apricum. The Apricum Hill Ecological Reserve, 
managed by the California Department of Fish and Game, is about 15.2 ha 
(37.5 ac). The Ione manzanita ACEC, managed by BLM, covers 35 ha (86 
ac). Because both preserves are small, they are subject to edge effects 
such as shading by taller shrubs or competition with invasive 
vegetation (see Factor A and E for more detail).
    E. Other natural or manmade factors affecting its continued 
existence. The effects of altered fire periodicity on Arctostaphylos 
myrtifolia have not been well studied. Arctostaphylos myrtifolia lacks 
the ability to crown sprout and is killed outright by fire. It must, 
therefore, reproduce by seed. Abundant post-fire seed germination has 
been reported by Roof (1982) and by Woodward (in litt. 1994) who also 
reported successful reestablishment of the species on ground scraped by 
tractors during a fire suppression operation. The response of A. 
myrtifolia to fire appears, however, to be irregular and unpredictable 
(Wood and Parker 1988).

[[Page 34194]]

    Fire appears to be necessary for the long-term maintenance of the 
Ione chaparral community. Controlled burning may be a viable means of 
ensuring adequate reproduction of Arctostaphylos myrtifolia, or perhaps 
even controlling or preventing loss due to the fungal pathogen (M. 
Wood, in litt. 1994, V.T. Parker, in litt. 1994). Field observations 
and controlled experiments to date, however, suggest that caution be 
exercised in the use of fire until the reasons for the variability in 
the response of A. myrtifolia are better understood. Long term study 
sites established to study this response have been graded and cleared 
by the land owner (V.T. Parker, in litt. 1994, M. Wood, in litt. 1994 
).
    Re-establishment in mined areas may be difficult for Arctostaphylos 
myrtifolia due to a lack of the required specialized substrate and an 
absence of proven propagation methods (E. Bollinger, in litt. 1994). 
Researchers have attempted a variety of germination and seed bank 
experiments without success (Wood and Parker 1988). Others have also 
attempted to cultivate the species with little or no success (R. 
Gankin, pers. comm., cited in Wood and Parker 1988). Although the plant 
has a limited capacity to root from its lower branches, Roof (1982) 
reported that he was unaware of even a single plant that had been grown 
or cultivated from a rooted branch. The only report of successful 
cultivation indicates that the plant requires high soil-acidity and 
heavy supplements of soluble aluminum (Roof 1982).
    Throughout its range, on habitat edges where better soil 
development occurs, Arctostaphylos myrtifolia is being outcompeted by 
native vegetation. Arctostaphylos viscida (white-leaf manzanita), a 
more rapidly growing, taller manzanita, encroaches along the edge of 
stands of A. myrtifolia, shading individuals. Arctostaphylos myrtifolia 
is eliminated when A. viscida grows tall enough to shade it (M. Wood, 
pers. comm. 1994; Roy Woodward, in litt. 1994). This is not likely to 
be a significant threat to the species, however, because most stands 
occur on substrates from which taller shrubs are excluded.
    As discussed in factor A, habitat fragmentation may alter the 
physical environment. Plant species may disappear from chaparral 
fragments that are from 10 to 100 ha in size due to persistent 
disturbance and potentially due to change in fire frequency (Soule et 
al. 1992). In addition, habitat fragmentation increases the risks of 
extinction due to random environmental, demographic, or genetic events. 
The two small, isolated populations of Eriogonum apricum var. 
prostratum, makes random extinction more likely. Chance events, such as 
disease outbreaks, reproductive failure, extended drought, landslides, 
or combination of several such events, could destroy part of a single 
population or entire populations. A local catastrophe also could 
decrease a population to so few individuals that the risk of 
extirpation due to genetic and demographic problems inherent to small 
populations would increase.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these species in determining to propose this 
rule. Eriogonum apricum (inclusive of vars. apricum and prostratum) is 
known from 11 populations on approximately 4 ha (10 ac) in Amador 
County, California. The species is endangered by mining, clearing of 
vegetation for agriculture and for fire protection, inadequate 
regulatory mechanisms, habitat fragmentation, residential and 
commercial development and ongoing erosion. Eriogonum apricum is in 
danger of extinction throughout all or a part of its range and the 
preferred action is, therefore, to list it as endangered. 
Arctostaphylos myrtifolia is reported from 17 sites, and estimated to 
occur in a total of about 100 stands covering about 400 ha (1,000) 
acres in Amador County, with a few occurrences in Calaveras County. It 
is threatened by mining, disease, clearing of vegetation for 
agriculture and for fire protection, inadequate regulatory mechanisms, 
habitat fragmentation, increased residential development and changes in 
fire frequency. Although A. myrtifolia faces many of the same threats 
as Eriogonum apricum, the significantly wider range and greater number 
of populations and individuals of A. myrtifolia moderate the threats. 
Thus, A. myrtifolia is not now in danger of extinction throughout a 
significant portion of its range, as is E. apricum, but is likely to 
become endangered within the foreseeable future. Therefore, the 
preferred action is to list A. myrtifolia as threatened. Other 
alternatives to this action were considered but not preferred because 
not listing Eriogonum apricum (inclusive of vars. apricum and 
prostratum) as endangered and Arctostaphylos myrtifolia as threatened 
would not provide adequate protection and not be in keeping with the 
purposes of the Act.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    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 designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for Eriogonum 
apricum and Arctostaphylos myrtifolia at this time. Service regulations 
(50 CFR 424.12(a)(1)) state that designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) The 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    Because Eriogonum apricum and Arctostaphylos myrtifolia face 
numerous human-caused threats (see Factors A and E in ``Summary of 
Factors Affecting the Species'') and occur predominantly on private 
land, the publication of precise maps and descriptions of critical 
habitat in the Federal Register would make these plant species more 
vulnerable to incidents of vandalism and, therefore, could contribute 
to the decline of these species and increase enforcement problems. A 43 
ha (107 ac) parcel previously identified in a public document as 
habitat for these species was cleared in 1993, presumably to facilitate 
future development (R. Johnsen, in litt. 1994). The listing of E. 
apricum as endangered also publicizes the rarity of this plant and, 
thus, can make it attractive to researchers or collectors of rare 
plants.
    Furthermore, critical habitat designation for Arctostaphylos 
myrtifolia and Eriogonum apricum is

[[Page 34195]]

not prudent due to lack of benefit. All but one occurrence of E. 
apricum and most occurrences of Arctostaphylos myrtifolia are on non-
Federal land. Furthermore, since E. apricum has very specific habitat 
requirements and occupies a total of only about 4 ha (10 ac) at few 
locations, any activity that would adversely modify critical habitat or 
destroy plants would likely jeopardize the continued existence of E. 
apricum. Therefore, designation of critical habitat would provide 
little, if any, additional benefit beyond listing. The Service, 
therefore, concludes that designation of critical habitat is not 
prudent for these species both because such designation can be expected 
to increase the degree of threat to the species and because of a lack 
of benefit from such action.
    Protection of the habitat of these species will be addressed 
through the recovery process and through the section 7 consultation 
process. The Service believes that Federal involvement in the areas 
where these plants occur can be identified without the designation of 
critical habitat. Therefore, the Service finds that designation of 
critical habitat for these plants is not prudent at this time, because 
such designation likely would increase the degree of threat from 
vandalism, collecting, or other human activities, and because it 
provides no benefits to the species beyond those which are provided by 
listing.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by Federal, State, local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the State and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against certain activities 
involving listed plants are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being 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 proposed species or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) 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 to 
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 formal consultation with the Service.
    Almost all of the occurrences for both species are on private land. 
One population of Arctostaphylos myrtifolia and a population of 
Eriogonum apricum var. apricum occur on Federal land managed by the 
BLM. Other potential Federal involvement includes the construction and 
maintenance of roads and highways by the Federal Highway Administration 
(2 populations of E. apricum var. apricum occur along right-of-ways 
owned by Caltrans), the permitting of lignite or coal mines through the 
Federal Office of Surface Mining Reclamation and Enforcement, and the 
relicensing of hydroelectric projects by the Federal Energy Regulatory 
Commission.
    Listing these two plant species would provide for development of a 
recovery plan (or plans) for them. Such plan(s) would bring together 
both State and Federal efforts for conservation of the plants. The 
plan(s) would establish a framework for agencies to coordinate 
activities and cooperate with each other in conservation efforts. The 
plan(s) would set recovery priorities and estimate costs of various 
tasks necessary to accomplish them. It also would describe site-
specific management actions necessary to achieve conservation and 
survival of the two plants. Additionally, pursuant to section 6 of the 
Act, the Service would be more likely to grant funds to affected states 
for management actions promoting the protection and recovery of these 
species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered or 
threatened plants. All prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 for endangered plants and 17.71 for 
threatened plants, apply. These prohibitions, in part, make it illegal 
for any person subject to the jurisdiction of the United States to 
import or export, transport in interstate or foreign commerce in the 
course of a commercial activity, sell or offer for sale in interstate 
or foreign commerce, or remove and reduce the species to possession 
from areas under Federal jurisdiction. In addition, for plants listed 
as endangered, the Act prohibits malicious damage or destruction on 
areas under Federal jurisdiction, and the removal, cutting, digging up, 
or damaging or destroying of such plants in knowing violation of any 
State law or regulation, including state criminal trespass law. Section 
4(d) of the Act allows for the provision of such protection to 
threatened species through regulation. This protection may apply to 
Arctostaphylos myrtifolia in the future if regulations are promulgated. 
Seeds from cultivated specimens of threatened plants are exempt from 
these prohibitions provided that their containers are marked ``Of 
Cultivated Origin'' appears on the shipping containers. Certain 
exceptions to the prohibitions apply to agents of the Service and state 
conservation agencies.
    It is the policy of the Service (59 FR 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 the listing on proposed and ongoing activities within 
a species' range. Less than 5 percent of the occurrences of the two 
species occur on public (Federal) lands. Collection, damage or 
destruction of these species on Federal lands is prohibited, although 
in appropriate cases a Federal endangered species permit may be issued 
to allow collection for scientific or recovery purposes. Such 
activities on non-Federal lands would constitute a violation of section 
9 when conducted in knowing violation of California State law or 
regulations or in violation of State criminal trespass law. See factor 
D. for a discussion of California's law protecting plants.
    Activities that are not prohibited by the Federal listing of these 
plants include livestock grazing, clearing a defensible space for fire 
protection around one's personal residence, and landscaping (including 
irrigation), around one's personal residence. Questions regarding 
whether specific activities will constitute a violation of section 9 
should be directed to the Field Supervisor of the Sacramento Field 
Office (see ADDRESSES section).
    The Act and 50 CFR 17.62, 17.63 for endangered plants, and 17.72 
for threatened plants, also provide for the issuance of permits to 
carry out otherwise prohibited activities involving endangered or 
threatened plants under certain circumstances. Such permits are 
available for scientific

[[Page 34196]]

purposes and to enhance the propagation or survival or the species. For 
threatened plants, permits also are available for botanical or 
horticultural exhibition, educational purposes, or special purposes 
consistent with the purposes of the Act. It is anticipated few trade 
permits would ever be sought or issued for the three species because 
the species are not common in cultivation or in the wild. Requests for 
copies of the regulations regarding listed species and inquiries 
regarding prohibitions and permits may be addressed to the U.S. Fish 
and Wildlife Service, Endangered Species Permits, 911 N.E. 11th Avenue, 
Portland, Oregon 97232-4181 (phone 503/231-2063, facsimile 503/231-
6243).

Public Comments Solicited

    The Service intends that any final action resulting from this 
proposal will be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule are hereby solicited. The Service 
will follow its current peer review policy (59 FR 34270) in the 
processing of this rule. Comments particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Arctostaphylos myrtifolia and Eriogonum 
apricum;
    (2) The location of any additional populations of these species and 
the reasons why any habitat should or should not be determined to be 
critical habitat as provided by section 4 of the Act;
    (3) Additional information concerning the range, distribution, and 
population size of these species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on these species.
    Final promulgation of the regulation(s) on these species will take 
into consideration the comments and any additional information received 
by the Service, and such communications may lead to a final regulation 
that differs from this proposal.
    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received within 45 days of the date of 
publication of the proposal in the Federal Register. Such requests must 
be made in writing and addressed to the Field Supervisor, U. S. Fish 
and Wildlife Service, Sacramento Field Office, 3310 El Camino Avenue, 
Suite 130, Sacramento, California 95821-6340.

National Environmental Policy Act

    The Fish and Wildlife Service has determined that an Environmental 
Assessment, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act of 1973, as amended. A notice outlining the Service's 
reasons for this determination was published in the Federal Register on 
October 25, 1983 (48 FR 49244).

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements.

References Cited

    A complete list of all references cited herein is available upon 
request from the Field Supervisor, Sacramento Field Office (see 
ADDRESSES section).
    Author: The primary author of this proposed rule is Kirsten Tarp, 
U.S. Fish and Wildlife Service, Sacramento Field Office (see ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. Section 17.12(h) is amended by adding the following, in 
alphabetical order under FLOWERING PLANTS, to the List of Endangered 
and Threatened Plants to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 34197]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                                                                                         
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special  
         Scientific name                Common name                                                                               habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants                                                                                                                               
                                                                                                                                                        
          *                  *                  *                  *                  *                  *                  *                           
Arctostaphylos myrtifolia........  Ione manzanita......  U.S.A. (CA)........  Ericaceae..........  T               ...........           NA           NA
                                                                                                                                                        
          *                  *                  *                  *                  *                  *                  *                           
Eriogonum apricum (inclusive of    Ione buck wheat.....  U.S.A. (CA)........  Polygonaceae.......  E               ...........           NA           NA
 vars. apricum and prostratum).                                                                                                                         
                                                                                                                                                        
          *                  *                  *                  *                  *                  *                  *                           
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: May 12, 1997.
John G. Rogers,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 97-16605 Filed 6-24-97; 8:45 am]
BILLING CODE 4310-55-U