[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Proposed Rules]
[Pages 15813-15820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8517]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE89


Endangered and Threatened Wildlife and Plants; Proposed 
Threatened Status for the Plant Rumex Orthoneurus (Chiricahua Dock)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list 
Rumex orthoneurus (commonly known as Chiricahua or Blumer's dock) as 
threatened pursuant to the Endangered Species Act of 1973, as amended 
(Act). This plant is a rare Southwest endemic occurring within riparian 
and cienega (marshy wetland) habitats. The plant is known from the 
Chiricahua, Pinaleno, Huachuca, Sierra Ancha, and White mountains in 
Arizona. In New Mexico, the plant is known from the Mogollon and San 
Francisco mountains. The plant is also believed to extend into northern 
New Mexico in the Pecos Wilderness and to have been extirpated from the 
Lincoln National Forest. A site in Mexico in the Sierra de los Ajos has 
also been reported. Habitat loss and degradation due to livestock 
grazing, recreation, water diversions and

[[Page 15814]]

development, road construction and maintenance, and wildfire imperil 
the continued existence of this species. This proposal, if made final, 
would extend the Act's protection to this plant. The Service seeks data 
and comments from the public on this proposal.

DATES: Comments from all interested parties must be received by July 
30, 1998. Public hearing requests must be received by May 18, 1998.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Arizona Ecological Services Field Office, 
U.S. Fish and Wildlife Service, 2321 W. Royal Palm Rd., Suite 103, 
Phoenix, Arizona 85021. Comments and materials received will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Field Supervisor at the above address 
or at telephone 602/640-2720 or facsimile 602/640-2730.

SUPPLEMENTARY INFORMATION:

Background

    Rumex orthoneurus occurs within higher elevation riparian and 
wetland habitats in moist, loamy soils or shallowly inundated areas 
(cienegas) adjacent to springs and streams. While most of the sites are 
in open meadows or along streams with an open canopy, some sites are 
shaded. The surrounding habitats are generally mixed conifer (Coronado 
National Forest 1993). These adjacent plant communities primarily 
include Douglas fir (Pseudotsuga menziesii), ponderosa pine (Pinus 
pondersosa), big tooth maple (Acer grandidentatum), and white fir 
(Abies concolor) (Van Devender 1980). The dominant species associated 
with R. orthoneurus include sneeze weed (Helenium hoopesii), larkspur 
(Delphinium andesicola), monkeyflower (Mimulus sp.) and various sedges 
(Carex spp.) (Phillips et al. 1980).
    Rumex orthoneurus requires a wetland habitat (perennial streams and 
springs and cienegas) that is rare in the desert southwest. The Arizona 
Game and Fish Department (1993) estimated that riparian vegetation 
associated with perennial streams comprises about 0.4 percent of the 
total Arizona land area, with present riparian areas being remnants of 
what once existed. Riparian and cienega habitats support many species 
of limited distribution in the Southwest, and that distribution can 
become increasingly restricted due to habitat degradation and loss 
(Hendrickson and Minckley 1984).
    Habitat areas supporting Rumex orthoneurus are attractive to people 
and livestock and, as a result, have been subjected to impacts from 
recreation, water development and diversions, and concentrated 
livestock grazing (Phillips et al. 1980; Van Devender 1980; Coronado 
National Forest 1993; Tonto National Forest 1993; Sue Rutman, botanist, 
in litt. 1995; David Hodges, Southwest Center for Biological Diversity 
(SCBD), pers. comm. 1995; SCBD, petition, 1996).
    Rumex orthoneurus is an herbaceous, robust perennial within the 
Polygonaceae (buckwheat family). Plants grow to 1 meter (m) (3.3 feet 
(ft)) in height with inflorescence stalks up to 2 m (6.6 ft) in height 
on more vigorous specimens. Large basal leaves are up to 50 centimeters 
(cm) (19.7 inches (in)) long, 18 cm (7.1 in) wide, and oblong to 
oblong-lanceolate in shape. Leaves located along the stem become 
shorter and more narrow as they develop upwards. Characteristics 
differentiating this plant from other members in its genus with which 
it could be confused include rhizomes (creeping underground stems) as 
opposed to taproots, lateral leaf veins almost perpendicular to the 
middle vein of the leaf, and a lack of swellings on the midribs of the 
fruiting capsules (Dawson 1979, Phillips et al. 1980, Coronado National 
Forest 1993).
    Rumex orthoneurus was first described from a collection of Blumer's 
by Rechinger (1936). The collection information noted the following--
Chiricahua Mountains, Barfoot Park in a rolling andesitic pineland that 
had been recently lumbered (Dawson 1979). This original type-locality 
population was extirpated, possibly as a result of uncontrolled water 
diversions in the 1980's (Coronado National Forest 1993). Plants at 
this site were introduced from a different population in the Chiricahua 
Mountains.
    Originally, plants now known from the White, Mogollon, and San 
Francisco mountains were believed to be Rumex occidentalis. Several 
recent taxonomic studies did not indicate otherwise; however, the 
culmination of this work and the most recent research indicates that 
plants in the White, Mogollon, and San Francisco mountains are, in 
fact, R. orthoneurus (Mount and Logan 1993, Friar et al. 1994, Bellsey 
and Mount 1995). Additionally, recent research indicates that R. 
orthoneurus extends into northern New Mexico in the Pecos Wilderness 
and once occurred on the Lincoln National Forest (Robert Bellsey, 
University of Arizona, to Mima Falk, Coronado National Forest, pers. 
comm. 1997).
    Rumex orthoneurus occurs at 10 sites in Arizona as natural (not 
introduced) populations in the Chiricahua, Pinaleno, Huachuca, and 
Sierra Ancha mountains. The extent of its occurrence in the White 
Mountains of Arizona is being assessed. In the Mogollon and San 
Francisco mountains on the Gila National Forest in the Gila Wilderness, 
it is reported from the Willow and Silver Creek drainages, tributaries 
of the Gila River, and from SA Creek (Bellsey and Mount 1995; Paul 
Boucher, Gila National Forest, pers. comm. 1997). It is believed to 
have been extirpated from three natural sites in Arizona.
    Extensive, poorly documented introductions of Rumex orthoneurus 
occurred in the 1980s. Twenty-four introduced populations were 
established as a result of this effort. Many are now extirpated or 
believed unlikely to persist due to a number of factors, including 
management conflicts such as grazing and recreation impacts and poor 
site selection for the species' habitat needs (Coronado National Forest 
1993, Tonto National Forest 1993). The Tonto National Forest (1993) 
identified and designated 15 transplant sites as Priority III 
populations expected to be extirpated within the next 50 years as a 
result of the factors noted above. The Tonto National Forest now 
considers six introduced populations to be extirpated (Stephen Gunzel, 
District Ranger, in litt, 1998).
    The number of extant individuals in both natural and introduced 
populations of Rumex orthoneurus is not known precisely and is 
confounded by the species' form of asexual reproduction through 
creeping rhizomes. However, overall, numbers have been declining as a 
result of impacts from grazing, recreation, road construction and 
maintenance, and wildfire (unpublished Service data 1990, Coronado 
National Forest 1993, Tonto National Forest 1993). Comparisons over 
time of populations occurring on the Tonto National Forest have also 
been confounded by different counting and estimating methods (Charles 
Bazan, Tonto National Forest, in litt. 1997).
    Specific site information for Rumex orthoneurus is limited 
primarily to the sites in the Pinaleno, Chiricahua, Huachuca, and 
Sierra Ancha mountains. This is the best scientific information 
available and is the basis for the Service's knowledge that the species 
is declining. An assessment of the other sites by the Forest Service is 
presently underway and this information will be valuable in determining 
further management needs for the species. For some documented impacts, 
such as

[[Page 15815]]

grazing, immediate management actions to remove threats cannot be 
implemented until the land management agencies have undertaken 
appropriate administrative procedures.
    The remaining native Rumex orthoneurus population in the Chiricahua 
Mountains occurs at Rustler Park and extends along East Turkey Creek. 
The type locality at Barfoot Park was extirpated, and plants there now 
were introduced. A site at Upper Cave Creek, not relocated since the 
original report by S.B. Bingham in 1976, is presumed extirpated.
    In the Pinaleno Mountains, Rumex orthoneurus is known from Mount 
Graham at Hospital Flat and Shannon Campground. Both of these natural 
populations occur in heavily used public recreation areas (Coronado 
National Forest 1993). The Coronado National Forest (1993) notes that 
the Hospital Flat site is subject to impacts from regular road 
maintenance activities.
    Only one natural population of Rumex orthoneurus remains in the 
Huachuca Mountains; this site in Scheelite Canyon is under the 
administration of the Ft. Huachuca Army Post. While this population is 
subject to potential recreation impacts, the predominant threat is 
wildfire (Jim Hessil, Ft. Huachuca, pers. comm. 1997). In 1882, J.G. 
Lemmon collected R. orthoneurus from Ramsey Canyon in the Huachuca 
Mountains; however, this population was extirpated at an unknown date, 
possibly from activities associated with the Hamburg Mine (Van Devender 
1980, unpublished Service data 1990). In 1990, R. orthoneurus was 
reported from Pat Scott Canyon in the Huachuca Mountains; however, that 
population has not been relocated (unpublished Service data 1990).
    Rumex orthoneurus was believed to have been extirpated from Rose 
Creek in the Sierra Ancha Mountains; however, the Tonto National Forest 
(1993) reports finding a small number of plants near a developed spring 
at the campground located there. Previously, extensive road work and 
sedimentation had rendered most of the available habitat unsuitable. 
The other three natural populations in the Sierra Ancha Mountains are 
at Reynolds Creek, Workman Creek, and Cold Springs Canyon.
    The success of introductions of populations of Rumex orthoneurus in 
the Chiricahua, Huachuca, and Sierra Ancha mountains has been variable. 
Some populations, such as those associated with the Cima Cabin in the 
Chiricahua Mountains, appear likely to persist over time. Other 
populations, in habitats which are marginal or unstable, are 
experiencing management impacts, or have been irretrievably altered by 
catastrophic wildfire, are already extirpated or believed unlikely to 
persist over time. An up-to-date assessment of the introduced 
populations on the Coronado and Tonto National Forests is needed to 
fully determine the number of extant introductions remaining. Plants 
occurring on the Gila National Forest are reportedly not subject to 
grazing impacts (Paul Boucher, Gila National Forest, pers. comm. 1997).
    The Service seeks information regarding the status of Rumex 
orthoneurus populations elsewhere in New Mexico and Mexico. Information 
on the assumed extirpated population(s) on the Lincoln National Forest 
and on the status of the reported occurrence in the Sierra de los Ajos 
in Mexico is needed.

Previous Federal Action

    Federal government actions on Rumex orthoneurus began as a result 
of section 12 of the original Endangered Species Act of 1973 which 
directed the Secretary of the Smithsonian Institution to prepare a 
report on those plants considered to be endangered, threatened, or 
extinct in the U.S. This report, designated as House Document No. 94-
51, was presented to Congress on January 9, 1975, and included Rumex 
orthoneurus as an 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 thereby to review the status of the plant taxa 
named therein. The July 1, 1975, notice included Rumex orthoneurus. 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. Rumex 
orthoneurus was included in the June 16, 1976, Federal Register 
document. The 1978 amendments to the Endangered Species Act required 
all proposals over 2 years old to be withdrawn, although a 1-year grace 
period was given to those proposals already more than 2 years old. In 
the December 10, 1979, Federal Register (44 FR 70796), the Service 
published a notice of withdrawal for that portion of the June 16, 1976, 
proposal that had not been made final.
    The Service published a Notice of Review for plants in the Federal 
Register on December 15, 1980 (45 FR 82480). This notice listed the 
status of Rumex orthoneurus as a Category 1 candidate. Category 1 
candidates were taxa for which the Service had sufficient information 
to support preparation of listing proposals. The species remained a 
Category 1 candidate in subsequent Notices of Review published on 
November 28, 1983 (48 FR 53640), September 27, 1985 (50 FR 39526), 
February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 51144).
    Beginning with the combined animal and plant Notice of Review 
published on February 28, 1996 (61 FR 7596), the Service discontinued 
the designation of multiple categories of candidates, and only species 
for which the Service has sufficient information to warrant listing 
proposals are now recognized as candidates. Rumex orthoneurus was 
identified as a candidate in the February 28, 1996, notice and in the 
next combined animal and plant notice published on September 19, 1997 
(62 FR 49398). Development of a proposed rule to list R. orthoneurus 
has been precluded by work on rules for species with a higher listing 
priority.
    On May 7, 1996, the Service received a petition from 
representatives of the Southwest Forest Alliance and the Southwest 
Center for Biological Diversity requesting the Service to add Rumex 
orthoneurus to the List of Threatened and Endangered Wildlife and 
Plants. The petition also requested that critical habitat be designated 
concurrent with the listing. A civil action was filed in the District 
Court of Arizona on October 2, 1997, alleging the Service's failure to 
make a 90-day finding. Under section 4(b)(3) of the Act, the addition 
of a species to the candidate list and its maintenance on that list 
constitute both a positive 90-day petition finding and a warranted but 
precluded 12-month petition finding for that species. Because R. 
orthoneurus was already a candidate species when the May 7, 1996, 
petition was received, no additional petition findings were required, 
except for annual findings pursuant to section 4(b)(3)(C) of the Act. 
The need for further annual findings is obviated by this proposed rule.
    Processing of this proposed rule conforms with the Service's 
Extension of Listing Priority Guidance for Fiscal Year 1997, published 
on October 23, 1997 (62 FR 55268). The guidance clarifies the order in 
which the Service will process rulemakings following two related 
events--the lifting of the

[[Page 15816]]

moratorium on final listings imposed on April 10, 1995 (Public Law 104-
6), and the restoration of significant funding for listing through 
passage of the Omnibus Budget Reconciliation Law on April 26, 1996, 
following severe funding constraints imposed by a number of continuing 
resolutions between November 1995 and April 1996. The guidance calls 
for giving highest priority to handling emergency situations (Tier 1); 
second priority (Tier 2) to resolving the listing status of outstanding 
proposed listings; third priority (Tier 3) to resolving the 
conservation status of candidate species and processing 90-day or 12-
month administrative findings on listing or reclassification petitions; 
and fourth priority (Tier 4) to proposed or final critical habitat 
designations and processing of reclassifications, which provide little 
or no additional conservation benefit to listed species. This proposed 
rule falls under Tier 3.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species 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. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1). These 
factors and their application to Rumex orthoneurus Rechinger 
(Chiricahua dock) are as follows.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    Riparian and cienega habitat degradation and loss has been ongoing 
as a result of livestock grazing, recreation, water development and 
diversion, road construction and maintenance, logging, mining and 
associated activities, and wildfire. These activities have all 
negatively affected habitat supporting Rumex orthoneurus populations. 
Some populations have been extirpated as a result of the activities. 
Some of the natural populations in the Chiricahua and Huachuca 
mountains have been extirpated, possibly as a result of water 
development and diversion, grazing, and mining activities. The site at 
Rose Creek in the Sierra Ancha Mountains was believed to have been 
extirpated by road construction; a small number of plants were later 
found near a spring at the campground located there. One population in 
the Pinalenos Mountains is regularly impacted by frequent road 
maintenance.
    These activities which alter habitat supporting Rumex orthoneurus 
continue to pose a threat. Much of this habitat modification is caused 
by soil compaction due to recreational and grazing activities with the 
result being a loss of suitable niches for seedling establishment, thus 
threatening the range of this plant in the future. Many populations 
occur in wetland areas subject to heavy public recreation. The Tonto 
National Forest (1993) noted evidence of soil compaction and unstable 
banks at the Workman Creek sites caused by recreational activities.
    The Coronado National Forest (1993) discussed the possible 
extirpation of the type locality as a result of water diversions. 
Trampling impacts to the population at Hospital Flat and impacts caused 
by damming the creek where Rumex orthoneurus occurs have been observed 
(David Hodges, Southwest Center for Biological Diversity, pers. comm. 
1995). The Coronado National Forest (1993) has stated that recreational 
impacts, such as trampling, are difficult to prevent in habitats used 
by campers, hikers, and birdwatchers. The Tonto National Forest 
receives the highest amount of recreational use of any National Forest 
in the U.S. (Eddie Alford, Tonto National Forest, pers. comm. 1997).
    Grazing impacts Rumex orthoneurus at the system, population, and 
individual plant levels. Rumex orthoneurus occurs in wetland habitats 
attractive to livestock for forage, water, and shelter and is highly 
palatable to livestock. Populations being grazed often do not produce 
seeds. Continued grazing could eventually preclude the population's 
continued existence due to a lack of seed production, compacted soils 
discouraging seedling establishment, severe trampling of plants and 
their creeping underground rhizomes, and destabilization of streambanks 
resulting in habitat loss.
    Prior to a change in permittees which eliminated trespass grazing, 
the Rumex orthoneurus population at Rustler Park in the Chiricahua 
Mountains was adversely affected by grazing, with plants appearing 
chlorotic, weak, and producing few inflorescences (Falk, Coronado 
National Forest, pers. comm. 1997). Activities, including grazing, 
which took place in the early 1900s in the vicinity of the historic 
Hamburg Mine are believed to be factors causing the extirpation of the 
population at Ramsey Canyon in the Huachuca Mountains (Van Devender 
1980). Virtually all reported occurrences of R. orthoneurus on the 
Apache-Sitgreaves National Forests are being adversely affected by 
grazing activities (Apache-Sitgreaves National Forests, unpublished 
data, 1997).
    Phillips et al. (1980) reported a proposed uranium mining and 
milling operation as a threat to the Workman Creek population of Rumex 
orthoneurus in the Sierra Ancha Mountains. A campsite was proposed to 
be developed, and the bowl area of Carr Mountain (the watershed for the 
site) was to be developed into a uranium mill. The Tonto National 
Forest Assessment for R. orthoneurus (1993) calls for the removal of 
mineral entry for this site; however, it is unknown if this has been 
implemented for Workman Creek. The Tonto National Forest is presently 
checking into the status of this mining operation and the potential for 
future mining.
    Wildfire is also a threat to Rumex orthoneurus. The Dude Fire on 
the Tonto National Forest, which resulted in increased stream 
sedimentation and scouring, destroyed one introduced population and 
rendered the habitat no longer suitable, and significantly reduced 
available habitat at two other sites. The Bray Creek Fire on the Tonto 
National Forest similarly reduced suitable habitat along Bray Creek 
(Tonto National Forest 1993). The Bray Creek site is now considered 
extirpated. The Rattlesnake Fire on the Coronado National Forest 
resulted in a significant decline in the size and extent of one 
population; recovery has been slow and limited to areas containing some 
remaining suitable substrate. Much of the original creek is now filled 
with huge boulders as a result of the catastrophic soil loss following 
this fire.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    No use of this species for these purposes is known.

C. Disease or Predation

    The primary predation threat to Rumex orthoneurus is from livestock 
grazing due to its high palatability and occurrence in wetland habitats 
attractive to livestock. It has been speculated that grazing impacts at 
some sites have also been caused by deer (Phillips et al. 1980). 
Separation of impacts caused by native wildlife versus livestock, or 
the wildlife management changes in these wetland habitats has not been 
assessed. Grazing by trespass cattle and horses has been a problem in 
the recent past even in those sites protected by exclosures.
    While the trespass situation in the Chiricahua Mountains appears to 
have been resolved within the last year after 8 years of problems, 
permitted grazing

[[Page 15817]]

occurs at Rumex orthoneurus sites in the White Mountains on the Apache-
Sitgreaves National Forests and at sites on the Tonto National Forest. 
Grazing impacts on the site in the Pecos Wilderness are unknown. The 
Gila Wilderness has not had permitted grazing since 1952 (Paul Boucher, 
Gila National Forest, pers. comm. 1997). Grazing by cattle has not 
occurred since 1947 on the R. orthoneurus sites in the Pinaleno 
Mountains (Coronado National Forest 1993). Grazing impacts from horses 
used by outfitter guides and recreationists has not been fully 
evaluated for most sites.

D. The Inadequacy of Existing Regulatory Mechanisms

    Many Federal and State laws and regulations can protect Rumex 
orthoneurus and its habitat. However, Federal and State agency 
discretion allowed under these laws still permits adverse effects on 
listed and rare species. Adding R. orthoneurus to the list of 
threatened species will help reduce adverse effects and will direct 
Federal agencies to work towards its recovery.
    Rumex orthoneurus is not included in either of the Appendices of 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES). It is unlikely it would require the trade 
protections of CITES.
    The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 
et seq.) and National Forest Management Act of 1976 (16 U.S.C. 1600 et 
seq.) direct Federal agencies to prepare programmatic-level management 
plans to guide long-term resource management decisions. Forest plans 
generally include a commitment to maintain viable populations of all 
native wildlife, fish and plant species within the Forest's 
jurisdiction (e.g. Coronado National Forest 1986). However, such 
general commitments do not preclude adverse effects to rare species by 
any National Forest.
    The Coronado and Tonto National Forests developed assessments with 
management strategies for Rumex orthoneurus in 1993. To date, these 
plans have not successfully eliminated adverse effects from grazing and 
recreation. More successful implementation is now underway, although 
some sites still need recreation management to more fully eliminate 
threats. Assessment and management strategies have not been developed 
for the sites at the other National Forests or the Ft. Huachuca Army 
Post. All land management agencies with lands supporting this species 
must address this plant in their fire management planning as wildfire, 
with a resulting catastrophic loss of soil and habitat modification, 
poses a threat to many populations.
    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
Sec. 4321-4370a) requires Federal agencies to consider the 
environmental impacts of their actions. The NEPA requires Federal 
agencies to describe a proposed action, consider alternatives, identify 
and disclose potential environmental impacts of each alternative, and 
involve the public in the decision-making process. It does not require 
Federal agencies to select the alternative having the least significant 
environmental impact. A Federal action agency may choose an action that 
will adversely affect listed or candidate species provided these 
effects were known and identified in a NEPA document.
    The wetland habitats supporting Rumex orthoneurus have a degree of 
protection under section 404 of the Clean Water Act and under Federal 
Executive Orders 11988 (Floodplain Management) and 11990 (Protection of 
Wetlands). These laws and orders have not halted population decline, 
extirpation, or habitat losses for R. orthoneurus.
    Under the Lacey Act (16 U.S.C. 3371 et seq.), as amended in 1982, 
it is prohibited to import, export, sell, receive, acquire, purchase, 
or engage in interstate or foreign commerce in any species taken, 
possessed, or sold in violation of any law, treaty, or regulation of 
the United States, any Tribal law, or any law or regulation of any 
State. The Lacey Act can provide a degree of protection to Rumex 
orthoneurus to the extent that the species is protected by Arizona 
State law (described below) and to the extent the Lacey Act can be 
enforced.
    The Arizona Native Plant Law (A.R.S. Chapter 7, Article 1) protects 
Rumex orthoneurus as ``highly safeguarded.'' A permit from the Arizona 
Department of Agriculture (ADA) must be obtained to legally collect 
this species from public or private lands in Arizona. Permits may be 
issued for scientific and educational purposes only. It is unlawful to 
destroy, dig up, mutilate, collect, cut, harvest, or take any living 
``highly safeguarded'' native plant from private, State, or Federal 
land without a permit. However, private landowners and Federal and 
State public agencies may clear land and destroy habitat after giving 
the ADA sufficient notice to allow plant salvage. Despite the 
protections of the Arizona Native Plant Law, legal and illegal damage 
and destruction of plants and habitat continue to occur.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Many of the populations of Rumex orthoneurus occur as small sites 
in isolated mountain ranges. The loss of any of these populations 
represents a significant curtailment of the species' range, and may 
have negative effects on the species' ability to sustain itself over 
time. As discussed previously, wildfire can pose a significant threat 
to this species. Because of overgrazing and fire suppression, wildfire 
can be catastrophic.
    The generally low numbers of individuals in mostly scattered, 
isolated populations renders Rumex orthoneurus vulnerable to chance 
extirpations and potential extinction. Small isolated populations have 
an increased probability of extirpation (Wilcox and Murphy 1985). Once 
populations are extirpated, natural recolonization of these isolated 
habitats may not occur (Frankel and Soule 1981).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this species in determining to propose this 
rule. Based on this evaluation, the preferred action is to list Rumex 
orthoneurus as threatened. This plant is threatened by habitat 
degradation and loss caused by livestock grazing, water diversions and 
development, recreation, wildfire, road construction and maintenance, 
and direct predation by livestock. The species is also subject to an 
increased risk of extinction due to the small number and sizes of 
populations. While not in immediate danger of extinction, R. 
orthoneurus is likely to become an endangered species in the 
foreseeable future if the present threats and declines continue.

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 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.

[[Page 15818]]

    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. 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. The Service finds that 
designation of critical habitat is not prudent for Rumex orthoneurus 
for the following reasons.
    All known populations of Rumex orthoneurus occur on Federal lands. 
Some of these sites are small and discrete thus rendering them 
vulnerable to vandalism of habitat and plants. Publication of precise 
maps and descriptions of critical habitat in the Federal Register, as 
required in a proposal of critical habitat, may make this plant 
vulnerable to incidents of vandalism. Because designation of critical 
habitat may increase the degree of threat to the species, such 
designation is not prudent.
    In addition, critical habitat designation for Rumex orthoneurus is 
not prudent due to lack of benefit. In the U.S., the species occurs 
entirely on Federal lands; the U.S. Forest Service and Department of 
the Army are aware of the locations of R. orthoneurus populations on 
their lands and are either implementing conservation strategies or 
developing them at this time. Therefore, informing these Federal 
agencies of the locations of the species through designation of 
critical habitat is unnecessary.
    Furthermore, because it is likely that an activity that would cause 
adverse modification of critical habitat would also cause jeopardy to 
Rumex orthoneurus, the designation of critical habitat would not likely 
provide greater protection for this species or its habitat than that 
provided by listing. Critical habitat receives consideration under 
section 7 of the Act with regard to actions carried out, authorized, or 
funded by a Federal agency (see Available Conservation Measures 
section). As such, designation of critical habitat may affect 
activities where such a Federal nexus exists. Under section 7 of the 
Act, Federal agencies are required to ensure that their actions do not 
jeopardize the continued existence of a species or result in 
destruction or adverse modification of critical habitat. However, both 
jeopardizing the continued existence of a species and adverse 
modification of critical habitat have similar standards and thus 
similar thresholds for violation of section 7 of the Act. In fact, 
biological opinions that conclude that a Federal agency action is 
likely to adversely modify critical habitat but not jeopardize the 
species for which the critical habitat has been designated are 
extremely rare. Because, in the U.S., R. orthoneurus occurs entirely on 
Federal lands and because locations of populations of the species are 
well known to the managers of these Federal lands, no adverse 
modification of this habitat is likely to occur without consultation 
under section 7 of the Act. Because of the small size of the species' 
current range, any adverse modification of the species' critical 
habitat would also likely jeopardize the species' continued existence. 
Designation of critical habitat for R. orthoneurus, therefore, would 
provide no additional benefit to the species beyond that conferred by 
listing.
    Protection of the habitat of Rumex orthoneurus will be addressed 
through the section 4 recovery process and the section 7 consultation 
process. For the reasons discussed above, the Service finds that the 
designation of critical habitat for R. orthoneurus is not prudent.

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 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States 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) requires Federal agencies to confer 
informally 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 such a 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.
    Rumex orthoneurus is known from the Coronado, Tonto, Apache-
Sitgreaves, Gila, and Santa Fe National Forests and from the Ft. 
Huachuca Army Post managed by the Department of Defense.
    Examples of Federal actions that may affect this plant include 
recreation management, road construction, livestock grazing, water 
diversions and developments, granting rights-of-way, and military 
activities. These and other Federal actions would require section 7 
consultation if the agency determines that the proposed action may 
affect listed species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.71, apply. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the U.S. to import or export, 
transport in interstate or foreign commerce in the course of a 
commercial activity, sell or offer for sale this species in interstate 
or foreign commerce, or remove and reduce the species to possession 
from areas under Federal jurisdiction. In addition, for endangered 
plants, the 1988 amendments (Pub. L. 100-478) to the Act prohibit the 
malicious damage or destruction on Federal lands and the removal, 
cutting, digging up, or damaging or destroying 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 this species 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.'' Certain exceptions apply to agents of the Service 
and State conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
species under

[[Page 15819]]

certain circumstances. Such permits are available for scientific 
purposes and to enhance the propagation or survival of the species. For 
threatened plants, permits are also available for botanical or 
horticultural exhibition, educational purposes, or special purposes 
consistent with the purposes of the Act. It is anticipated that few 
permits for trade of Rumex orthoneurus would ever be sought or issued 
because the species is not in cultivation or common in the wild. 
Information collections associated with these permits are approved 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned 
Office of Management and Budget clearance number 1018-0094. For 
additional information concerning these permits and associated 
requirements, see 50 CFR 17.72 or contact the Office of Management 
Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, 
Room 420C, Arlington, Virginia 22203-3507 (phone 703/358-2104, 
facsimile 703/358-2281).
    It is the policy of the Service published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the maximum extent 
practicable those activities that would or would not constitute a 
violation of section 9 of the Act if the species is listed. The intent 
of this policy is to increase public awareness of the effect of a 
species' listing on proposed and ongoing activities within the species' 
range. Collection of listed species on Federal lands is prohibited, 
although in appropriate cases a Federal endangered species permit may 
be issued to allow collection. Actions funded, authorized, or 
implemented by a Federal agency that could result in the removal and 
reduction to possession of the species on Federal lands would not be a 
violation of section 9 of the Act, provided they are conducted in 
accordance with any reasonable and prudent measures required by the 
Service under section 7 of the Act. The Service is not aware of any 
otherwise lawful activities being conducted or proposed by the public 
that would affect Rumex orthoneurus and result in a violation of 
section 9. Questions regarding whether specific activities would 
constitute a violation of section 9 should be directed to the Field 
Supervisor of the Service's Arizona Ecological Services Field Office 
(see ADDRESSES section).

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. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) The location of any additional populations of this 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 this species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on this species.
    Final promulgation of the regulation on this 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 a public hearing on this proposal, if 
requested. Requests must be received within 45 days of the date of 
publication of the proposal. Such requests must be made in writing and 
addressed to the Field Supervisor (see ADDRESSES section).

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

    This rule does not contain collections of information that require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq.

References Cited

    A complete list of all references cited herein is available upon 
request from the U.S. Fish and Wildlife Service, Arizona Ecological 
Services Field Office (see ADDRESSES section).

Author

    The primary author of this proposed rule is Angela Brooks, Arizona 
Ecological Services 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. Amend section 17.12(h) by adding the following, in alphabetical 
order under Flowering Plants, to the List of Endangered and Threatened 
Plants:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

                                                                                                                                                        
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                                                                                         
--------------------------------------------------------    Historic range        Family name          Status      When listed    Critical     Special  
         Scientific name                Common name                                                                               habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Rumex orthoneurus................  Chiricahua dock.....  U.S.A. (AZ, NM),     Polygonaceae.......  T                                     NA           NA
                                                          Mexico.                                                                                       
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 15820]]

    Dated: March 17, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-8517 Filed 3-31-98; 8:45 am]
BILLING CODE 4310-55-P