[Federal Register Volume 63, Number 155 (Wednesday, August 12, 1998)]
[Proposed Rules]
[Pages 43129-43135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21565]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD09


Endangered and Threatened Wildlife and Plants; Withdrawal of 
Proposed Rule to List the Black Legless Lizard as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) withdraws the 
proposed rule, published in the Federal Register on August 2, 1995 (60 
FR 39326), to list the black legless lizard (Anniella pulchra nigra) as 
an endangered species under the Endangered Species Act of 1973, as 
amended (Act). The black legless lizard is now known to occur in a much 
wider variety of habitat than previously thought, and the threats to 
its survival have decreased since the proposed rule was published. The 
Installation-Wide Multispecies Habitat Management Plan (HMP) for Former 
Fort Ord, now provides preservation and habitat management on 546 
hectares (ha) (1,366 acres (ac)) of coastal and interior dune sheets 
occupied by the black legless lizard. Elsewhere, a large proportion of 
the remaining habitat of the black legless lizard is already protected 
from urbanization and commercial development on public lands, and 
widespread losses of habitat are unlikely to continue in the 
foreseeable future. Recent and ongoing restoration efforts on dunes 
colonized by alien vegetation are likely to benefit the black legless 
lizard. Furthermore, extensive new invasion of existing black legless 
lizard habitat by alien plants is unlikely to occur. Based on this 
information the Service concludes that listing of the black legless 
lizard is not warranted.

ADDRESSES: The complete file for this action is available for 
inspection, by appointment, during normal business hours at the Ventura 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola 
Road, Suite B, Ventura California 93003.

FOR FURTHER INFORMATION CONTACT: Mr. Carl T. Benz, Assistant Field 
Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, at the above address (805/644-1766).

SUPPLEMENTARY INFORMATION:

Background

    On August 2, 1995, the Service published a proposal to list five 
plant species and the black legless lizard from Monterey County, 
California as endangered or threatened in the Federal Register (60 FR 
39326) . The subject of this withdrawal, the black legless lizard, was 
originally described by Fischer in 1885 as Anniella nigra (in Hunt 
1983). The description of A. nigra as distinct from A. pulchra, which 
had been previously described by Gray in 1852 and Richardson in 1854 
(in Hunt 1983), was based on unique scalation, body proportions, and 
coloration observed in a single specimen. Since the original 
description, the taxonomic status of the black legless lizard has been 
open to interpretation (Hunt 1983 and references therein; Murphy and 
Smith 1985, 1991; Jennings and Hayes 1994). However, since at least the 
1940s, most authors have concluded that the black legless lizard is a 
subspecies of A. pulchra. As currently recognized, the California 
legless lizard, A. pulchra, consists of two subspecies; a wide-ranging 
form, A. p. pulchra, the silvery legless lizard, and a more narrowly 
ranging form, A. p. nigra, the black legless lizard.
    The black legless lizard has been collected primarily from coastal 
dunes of the Monterey Peninsula and Monterey Bay between the Salinas 
and Carmel rivers (Miller 1943, Bury 1985). However, Anniella with dark 
backs and other morphological traits resembling the black legless 
lizard have been collected north of the Salinas River as far as the San 
Francisco Bay area and south of the Carmel River in the Morro Bay and 
Pismo Beach areas, and on the Santa Maria dune sheet at the Guadalupe 
(San Luis Obispo County) and Mussel Rock (Santa Barbara County) dunes. 
The relationship of these lizards to A. p. nigra remains unresolved 
(Miller 1943, Bezy et al. 1977, Hunt 1983, Bury 1985, Jennings and 
Hayes 1994). Miller (1943) and Bury (1985) believed unambiguous black 
legless lizard populations to be restricted to the coastal area between 
the Salinas and Carmel rivers. Stebbins (1985) considered the 
distribution of this taxon to be the Monterey Peninsula, Monterey Bay, 
and Morro Bay. Hunt (1983) showed an even more extensive distribution. 
All of these authors agree that coastal specimens of Anniella from 
between the Salinas and Carmel rivers are black legless lizards. As a 
result, the August 2, 1995, proposal of A. p. nigra as endangered was 
applied only to the range of this taxon as described by Miller (1943) 
and Bury (1985).
    Based on electrophoretic analyses of Anniella from a small number 
of localities in California and Baja California, Mexico, Bezy et al. 
(1977) concluded that the genetic distance between Anniela. p. nigra 
and A. p. pulchra was consistent with subspecific classification. 
Rainey (1984) conducted biochemical analyses of Anniella from several 
coastal central California localities with the goal of resolving the 
distinctness of the black legless lizard. The results suggested genetic 
differences between dark forms of A. p. pulchra from Morro Bay and A. 
p. nigra from the Monterey Peninsula. The results of more fine-scaled 
sampling in the vicinity of Monterey Bay revealed differences in allele 
frequencies even among adjacent sites, suggesting genetic subdivisions 
even within a limited area, but too few samples were analyzed to draw 
any reliable conclusions.
    The black legless lizard is a burrowing, limbless lizard about the 
diameter of a pencil and reaches a maximum length of about 23 
centimeters (cm) (9 inches (in)). It has a black or dark brown back 
(hatchlings are light colored) and a yellow underside (Fisher 1934, 
Miller 1943, Hunt 1983, Stebbins 1985). The black legless lizard is 
distinguished from the silvery legless lizard by dark back coloration, 
fewer back scales count, and a relatively short tail (Miller 1943, Hunt 
1983, Bury and Corn 1984).
    Although the historical distribution of the black legless lizard is 
somewhat uncertain, museum specimens collected since the late 1800s 
suggest a distribution restricted to coastal and interior dunes and 
other areas of sandy soils in the vicinity of Monterey Bay and the 
Monterey Peninsula. Over the last 20 years, biological surveys and 
anecdotal accounts of naturalists and area residents confirm that the 
black legless lizard is still extant within this range; however, much 
of the coastal sandy plains and dunes that were habitat for this 
lizard, particularly on

[[Page 43130]]

the Monterey Peninsula, have been converted to urban or other uses.
    Bury (1985) surveyed most potential habitat for the black legless 
lizard, as well as sites as far south as Morro Bay and north to Ano 
Nuevo State Reserve in San Mateo County where intergrades might occur. 
Black legless lizards were found at 17 sites, all of which lie on or 
near approximately 45 kilometers (km) (28 miles (mi)) of coastline 
between the Salinas and Carmel rivers. Within the range of the black 
legless lizard, habitat destruction due to urbanization, particularly 
on the Monterey Peninsula, has reduced and fragmented the habitat 
available to this lizard. The remaining coastal habitat is degraded to 
varying degrees by current or previous human effects such as trampling, 
sand mining, vehicular use, and introduction of exotic plants, 
particularly Carpobrotus edulis and Ammophila arenaria.

Summary of Comments on the Proposed Rule

    In the August 2, 1995, proposed rule (60 FR 39326) and associated 
notifications, all interested parties were requested to submit factual 
reports or information to be considered in making a final listing 
determination. The proposed rule opened a public comment period through 
October 9, 1995. A public hearing was requested by one commenter. Due 
to the Federal moratorium on final listing actions, imposed on April 
10, 1995, the public hearing and processing of the final rule could not 
be scheduled immediately. Once the moratorium was lifted, on April 26, 
1996, the Service established its priority for listing actions and the 
public hearing was scheduled. The public hearing was held on August 20, 
1996, in Monterey, California, and allowed presentation of both oral 
and written comments. An associated 60-day public comment period closed 
August 30, 1996. During the hearing and public comment period 
substantial new information was submitted concerning the range, 
habitats, and taxonomic status of the legless lizards. To allow the 
public to comment on this new information and to permit submission of 
any new information that had become available on the other taxa in the 
package, the comment period was reopened. The second 30-day public 
comment period closed on May 2, 1997. Appropriate Federal and State 
agencies, local governments, scientific organizations, and other 
interested parties were contacted and asked to comment. Legal notices 
of the availability of the proposed rule were published in the Monterey 
Herald and the Santa Cruz Sentinel during the initial comment period, 
and in the Monterey Herald, Half Moon Bay Review, and Pacifica Tribune 
for the 1997 comment period.
    During the public comment periods and public hearing, 20 agencies, 
groups, and individuals commented on the plant taxa included in the 
proposed rule, some of them multiple times. The majority of comments 
received concerned the proposal to list the black legless lizard. 
Written comments and oral statements presented at the public hearing 
and received during the comment periods were given equal consideration 
and are addressed in the following summary. Because the proposed rule 
included five plant taxa in addition to the black legless lizard, only 
those comments specific to the black legless lizard are addressed in 
this notice. Comments specific to the five plant taxa and general 
comments on the proposed rule are discussed in a separate Federal 
Register notice being published concurrently with this withdrawal. 
Comments of a similar nature are grouped into a single issue. These 
issues and the Service's responses are discussed below.
    Issue 1: Several commenters warned that the economic development or 
revitalization of the jurisdictions within the range of the black 
legless lizard could be threatened by the listing. Additionally, noting 
that the black legless lizard is regularly encountered on agricultural, 
commercial and residential properties, several commenters were 
concerned that the listing could curtail, or make illegal, the everyday 
activities of property owners, such as tilling soil for farming, yard 
work, and landscaping.
    Service Response: Section 4(b)(1)(A) of the Act requires that a 
listing determination be based solely on the best scientific and 
commercial data available. The legislative history of this provision 
clearly states the intent of Congress to ``ensure'' that listing 
decisions are ``based solely on biological criteria and to prevent non-
biological criteria from affecting such decisions' (H.R. Rep. No. 97-
835, 97th Cong. 2nd Sess. 19 (1982)). As further stated in the 
legislative history, ``economic considerations have no relevance to 
determinations regarding the status of species.'' Because the Service 
is specifically precluded from considering economic impacts in a final 
determination on a proposed listing, possible economic consequences of 
listing the black legless lizard were not considered.
    Issue 2: Several commenters argued that there is insufficient basis 
for a listing at this time because experts disagree on the distinctness 
of the black legless lizard as well as the basis for distinguishing 
between the black legless lizard and the more common silvery form. On 
the other hand, one commenter submitted an unpublished manuscript which 
included a phylogeny of legless lizards based on mitochondrial DNA 
sequencing.
    Service Response: A brief review of the taxonomic history of the 
black legless lizard is provided in the background section of this 
notice. All available evidence indicates that the California legless 
lizard, Anniela pulchra, is subdivided into a number of more or less 
genetically distinct groups. Unresolved evolutionary relationships 
continue to interest workers in the fields of evolutionary biology, 
systematics, and natural history, and it is recognized that taxonomic 
studies that may result in the revision of A. pulchra are likely. 
Nevertheless, the black legless lizard has been regarded as 
taxonomically distinct for over 100 years. Despite ambiguities that 
exist regarding the distinctness and relationships of legless lizards 
north of the Salinas River and south of the Carmel River, the presence 
of a distinct, more or less isolated, legless lizard in the vicinity of 
Monterey Bay has not been seriously debated for several decades.
    Issue 3: Citing new information relating to the closure of the 
former Fort Ord, several commenters pointed out that legless lizards 
have now been found to occur over a much wider range and in a more 
complex array of habitats than was described in the proposed rule. 
These commenters encouraged the Service to delay the listing decision 
until the taxonomic identity of these lizards and their distribution 
and abundance on the former Fort Ord lands are established.
    Service Response: The Service acknowledges that new information on 
distribution and habitat use has been made available since the proposal 
to list the black legless lizard as endangered (60 FR 39326). In 1995 
and 1996, legless lizards were encountered by U.S. Army personnel 
during unexploded ordnance cleanup operations at the former Fort Ord 
(James W. Willison, Director of Environmental and Natural Resources 
Management, Presidio of Monterey, in litt. 1997). Late in 1996, the 
Fort Ord Coordinated Resource Management and Planning (CRMP) team 
formed a special subcommittee to coordinate surveys for legless lizards 
on the former base and nearby areas. Field surveys have been conducted 
in the interior of the former base on lands managed by the City of 
Marina, the University of California, and the Bureau of Land Management 
(BLM)

[[Page 43131]]

(Robert E. Beehler, Area Manager, Hollister Resource Area, BLM, in 
litt. 1997). During these surveys, legless lizards have been 
encountered in many new localities and in a variety of habitats 
including live oak woodland, non-native grassland/oak woodland ecotone, 
grassland/shrub, dune scrub, and maritime chaparral. The implications 
of these survey results with respect to the status of the black legless 
lizard are discussed under Factor A in the ``Summary of Factors 
Affecting the Species'' section.
    Issue 4: Several commenters argued that the habitat of the black 
legless lizard is much more secure than indicated in the proposed rule 
because the lizard will now be protected on 6,800 ha (17,000 ac) as 
part of the HMP for former Fort Ord, and because parts of its range 
overlap with the range of the federally listed Smith's blue butterfly 
(Euphilotes enoptes smithi).
    Service Response: The Service agrees. Roughly 6,800 ha (17,000 ac) 
on the former Fort Ord is permanently protected under the provisions of 
the HMP (U.S. Army Corps of Engineers 1997). The HMP was established in 
April, 1994, and subsequently revised in November, 1996, and again in 
April, 1997. Since 1995, surveys conducted under the auspices of the 
CRMP team have demonstrated a wide, but apparently patchy, distribution 
of dark-colored legless lizards on former Fort Ord lands. Within the 
HMP boundaries, legless lizards have been encountered on lands that 
have already been developed, on lands that are proposed for 
development, and on lands that are permanently protected and will be 
managed for sensitive plants and animals.
    Over much of its range, the black legless lizard is found in 
habitats occupied by the Smith's blue butterfly. On public lands, where 
the habitat of the Smith's blue butterfly is largely protected, 
management actions such as removing exotic vegetation and restoring 
native plant communities may benefit the black legless lizard when it 
is present. On private lands occupied by the Smith's blue butterfly, 
proposed developments may be permitted via the habitat conservation 
plan (HCP) process pursuant to section 10 of the Act. Black legless 
lizards are likely to benefit from the permanent maintenance of natural 
plant communities on HCP lands preserved for the Smith's blue 
butterfly.
    Issue 5: Several area residents pointed out that the black legless 
lizard is common in residential neighborhoods and on commercial 
property in the cities of Seaside and Marina. More than 80 residents of 
the City of Marina reported black legless lizards on their property. 
The commenters questioned the need to list such a common organism as 
endangered. An opposing view was presented by other commenters who 
argued that the lizard is imperiled by human impacts and that Federal 
listing could provide greater assurances for the survival of the black 
legless lizard.
    Service Response: A questionnaire attached to the City of Marina 
newsletter, was sent to 7,000 businesses and residences in the spring 
of 1997. Of 247 responses, 81 (33 percent) of the respondents indicated 
they had seen legless lizards on their property. Most of the 
respondents had seen legless lizards within the last 3 years, and many 
indicated they observe legless lizards year after year. The results of 
the City of Marina survey are not surprising. Legless lizards are 
occasionally encountered on residential and commercial property 
throughout their range. In the Monterey Bay area, it is not unusual for 
residents of Marina, Seaside, and portions of Monterey and Pacific 
Grove to encounter black legless lizards on residential and commercial 
properties. Legless lizards can clearly persist for decades in and 
around highly altered man-made settings, although this may not be 
optimal habitat for them. Habitat fragmentation is discussed further in 
Factor E of the ``Summary of Factors Affecting the Species'' section of 
this notice.
    Issue 6: One respondent questioned the need for listing the black 
legless lizard at this time, noting the California Environmental 
Quality Act (CEQA) and the California Coastal Act recognize the lizard 
as a special status species.
    Service Response: The black legless lizard is often given special 
consideration in CEQA compliance documents. Legislation and State 
regulations require mitigation or other compensation for impacts to 
sensitive or rare species. However, CEQA provides for ``Statements of 
Overriding Consideration'' which allow adverse impacts with less than 
full mitigation. The California Coastal Act regulates development 
within the coastal zone and has slowed the loss of coastal habitats 
such as the dune habitats used by black legless lizards.
    Issue 7: Several commenters questioned the need for listing at this 
time because the lizard is very abundant in suitable habitat. On the 
other hand, other commenters argued that the distribution of legless 
lizards is patchy, and abundance does not assure survival when the 
human impacts involve habitat destruction.
    Service Response: The black legless lizard, like other small, 
burrowing reptiles can occur in dense populations, up to several 
hundred per hectare, in a wide range of habitats (Turner 1977). The 
distribution of legless lizards within their range, however, is 
dictated largely by soil texture (Hunt 1997, in press). Thus, the 
distribution of the black legless lizards in the vicinity of Monterey 
Bay is expected to be somewhat patchy. The results of surveys conducted 
under the auspices of the CRMP on the former Fort Ord have conformed to 
the prediction of a patchy distribution. Primary threats to the lizard 
identified in the proposed rule involved uncertainties associated with 
the clean-up and transfer of lands formerly managed by Fort Ord and the 
invasion of lizard habitat by exotic vegetation (60 FR 39332-39334). 
The significance of these threats is discussed under factors A and E of 
the ``Summary of Factors Affecting the Species'' section.
    Issue 8: Two commenters questioned the current severity of the 
threats to the black legless lizard related to conversion of the dune 
habitats by invasion of exotic plants such as Carpobrotus edulis and 
Ammophila arenaria. The commenters described dune restoration projects 
in detail, including exotic plant eradication on previously preserved 
Federal and State lands, newly protected lands associated with the 
closure of former Fort Ord, and private property, and argued that 
lizard habitat is becoming more, not less common in the Monterey Bay 
area. On the other hand, several commenters supported listing because 
of concerns about invasion of black legless lizard habitat by exotic 
plant species.
    Service Response: Most of the evidence that exotic plants are 
associated with low abundances of black legless lizards is indirect. 
Using an intensive sampling method, Bury (1985) demonstrated that black 
legless lizards were less abundant in mats of Hottentot fig than they 
were in and around native dune vegetation. Soil chemistry, thermal 
properties and invertebrate prey abundance differ between dune habitats 
dominated by Carpobrotus edulis and natural dune habitats (Bury 1985; 
Lawrence Hunt, University of California, Santa Barbara, in litt. 1995). 
Since about 1985, a host of programs on Federal, State, and private 
lands have been initiated to eradicate exotic plants and restore native 
plant communities on the dune ecosystems of the Monterey Bay area.
    At present, our knowledge of the habitat requirements of the black 
legless lizard, and of the methods and results

[[Page 43132]]

of the ongoing dune restoration efforts suggests that the black legless 
lizard will benefit substantially if these programs continue. A more 
complete analysis of impacts of exotic vegetation and dune restoration 
programs on the black legless lizard is given under Factor E of the 
``Summary of Factors Affecting the Species'' section.
    Issue 9: One commenter criticized the Service's heavy reliance on 
the Bury (1985) status report, which is over 10 years old. The 
respondent stated that the report is stale and no longer accurate. 
Citing Roosevelt Campobello Intern. Park v. U. S. E. P. A., 684 F.2d 
1041, 1052-1055 (1st Cir. 1982) the commenter argued that in cases 
where insufficient information exists, the Service is obliged to 
develop further scientific data. Likewise, the same commenter argued, 
citing City of Carmel-By-The-Sea v. U.S. Dept. Of Transp., 95 F.3d 892, 
900 (9th Cir. 1996), that reliance on stale scientific data can 
constitute an abuse of discretion. These arguments based on the same 
court decisions also were made by a second commenter.
    Service Response: Although the Bury (1985) status report on the 
black legless lizard is now 12 years old, it remains accurate and still 
useful. It provides an extensive analysis of the distribution of black 
legless lizards, their variation, and their habitats. The descriptions 
of collection localities and the habitat conditions are of sufficient 
detail to allow current workers to evaluate short-term changes in 
legless lizard habitat. In a clear demonstration that the Bury report 
still provides valuable historical information, the Service received, 
during the public comment period, a copy of a site-by-site comparison 
between the habitat conditions described by Bury in 1985 and the 
current conditions at those same sites (Michael J. Zander, Zander and 
Associates, in litt. 1995). Without the specific site and habitat 
condition information contained in the Bury report, such a comparison 
would not have been possible. Furthermore, the Act is clear in its 
requirement that listing decisions be based ``solely on the best 
scientific and commercial data available [emphasis added] after 
conducting a review of the status of the species . . .'' (16 U.S.C. 
1533, section 4(b)(1)(A)). The Service, therefore, is not obliged to 
develop further scientific data beyond that which is available to it 
during its status review.
    Issue 10: Two commenters supported the listing, registering their 
concern that hybridization between black and silvery legless lizards 
represents a substantive threat to the distinctness of the black 
legless lizard as a distinct biological entity.
    Service Response: Anecdotal and published reports of interbreeding 
between black legless lizards (Anniela p. nigra) and silvery legless 
lizards (A. p. pulchra) are common and are based on apparent 
intermediate morphological traits including scalation, body 
proportions, and coloration. The currently available biochemical and 
molecular evidence is insufficient to determine the extent of gene 
flow, past or present, between populations of legless lizards in the 
Monterey Bay area. No evidence exists, therefore, that hybridization 
poses a threat to the black legless lizard.

Summary of Factors Affecting the Species

    The Act and implementing regulations found at 50 CFR 424.17(3) 
provide the basis for determining a species to be endangered or 
threatened and for withdrawing a proposed rule when the proposal has 
not been found to be supported by available evidence. The five factors 
described in section 4(a)(1) of the Endangered Species Act, as they 
apply to the withdrawal of the proposed listing of the black legless 
lizard (Anniella pulchra nigra), are as follows:

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

    Primary threats to the black legless lizard identified under Factor 
A in the proposed rule were associated with the anticipated closure of 
Fort Ord, including clean-up and the disposition and future uses of the 
former Army base, which at the time were unknown (60 FR 39332). Now 
that the closure of Fort Ord has occurred, the significance of these 
threats can be more accurately assessed. Under the Installation-Wide 
HMP, roughly 6,800 ha (17,000 ac) of the former Fort Ord will be 
permanently protected and managed for plants and wildlife, including 
the black legless lizard (Michael Houlemard, Fort Ord Reuse Authority, 
in litt. 1997). At the time of the proposed rule, the extent of 
occupied black legless lizard habitat was uncertain, with estimates 
ranging from 190 ha (470 ac) to 1,206 ha (2,980 ac). Based on surveys 
conducted since the proposed rule was published (60 FR 39332), it is 
now known that at least 546 ha (1,366 ac) of habitat for the black 
legless lizard will be protected on the former Ford Ord (US Army Corps 
of Engineers 1997). In addition, at the time of the proposed rule, the 
black legless lizard was thought to be restricted to sandy coastal 
plains and dunes (60 FR 39332). It has now been found in a wider 
variety of habitats, including live oak woodland, non-native grassland/
oak woodland ecotone, grassland/shrub, dune scrub, and maritime 
chaparral (R. Beehler, in litt. 1997). The major land manager 
responsible for maintaining natural habitats in the interior of the 
former Fort Ord is the BLM, to which the U.S. Army has already 
transferred several thousand acres. The University of California 
Natural Reserve System will manage about 240 ha (600 ac) for field 
research and teaching as well as for protection and enhancement of 
biological resources. With the implementation of the HMP a large 
portion of the undeveloped remainder of the interior Monterey Dune 
sheets will be protected, making the Monterey dune complex (Cooper, 
1967) the largest protected dune mass in California. Since 1995, 
surveys conducted under the auspices of the CRMP team have demonstrated 
a wide, but apparently patchy, distribution of dark-colored legless 
lizards on former Fort Ord lands (M. Houlemard, in litt. 1997).
    The Department of the Army also is currently in the process of 
transferring over 320 ha (800 ac) of coastal dunes along a roughly 6.4 
km (4 mi) reach to the California Department of Parks and Recreation 
(CDPR). CDPR management plans on Marina State Beach and on the 
adjoining coastal dune habitat being transferred from the former Fort 
Ord offer permanent protection to over 340 ha (850 ac) of black legless 
lizard habitat (U.S. Army Corps of Engineers 1997). Furthermore, as a 
result of a recent Memorandum of Understanding between the City of Sand 
City, the Monterey Peninsula Regional Parks District, and the 
California Coastal Commission, 75 to 80 percent of Sand City coastal 
habitat adjacent to the former Fort Ord will be preserved as open space 
(David Pendergrass, Mayor, City of Sand City, in litt. 1997).
    Other threats to the black legless lizard cited under Factor A in 
the proposed rule included military activities, off-road vehicle 
activities, human trampling, and sand mining (60 FR 39332). With the 
closure of Fort Ord, military activities no longer threaten the species 
or its habitat. Off-road vehicle use has been prohibited on all public 
lands along Monterey Bay and coastal portions of the Monterey Peninsula 
for many years. The effects of human trampling are being reduced by 
active programs that involve restricting access to designated trails 
with symbolic and cable fencing and construction of sand ladders and 
boardwalks. Sand mining occurs at only two sites and, therefore, is not 
considered to be a significant

[[Page 43133]]

threat in the absence of major threats to the species or its habitat.
    Although land development was not specifically identified as a 
major threat in the proposed rule, at least one comment received during 
the public comment period suggested that this might be the case. A 
comparison of the habitat conditions at sites described by Bury (1985) 
with their current status (J. Dack, City of Marina, in litt. 1997) 
shows that only a small amount of black legless lizard habitat, mostly 
on private lands, has been developed or proposed for development. In 
fact, during this period both land ownership and land use has favored 
the protection of natural habitats. The majority of black legless 
lizard habitat is now in protected status on public lands such as the 
State Beaches where most dunes have been designated as Natural 
Preserves. Almost all of the undeveloped private property parcels are 
already the subject of studies and planning efforts which will, in all 
likelihood, lead to the resolution of future land uses within the next 
10 years. The future land uses on the stretch of private property along 
the coast between the Salinas River National Wildlife Refuge and Marina 
State Beach represent, by far, the greatest area of uncertainty about 
future conversion of black legless lizard habitat for human uses.
    Because of the widespread occurrence of the endangered Smith's blue 
butterfly along the Monterey coast, many future development proposals 
along the coastline will probably be subject to the Act and the habitat 
protections that accompany it. On these lands, proposed developments 
may be permitted via the habitat conservation plan (HCP) process 
pursuant to section 10 of the Act. Black legless lizards are likely to 
benefit from the permanent maintenance of natural plant communities on 
HCP lands preserved for the Smith's blue butterfly. Thus, the Service 
finds no evidence that future losses of black legless lizard habitat 
from land conversion constitute a significant threat to the species.

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

    Although the black legless lizard is of interest to many people 
because it is an unusual reptile, overutilization does not appear to be 
a factor threatening the species (Bury 1985). The State of California 
prohibits taking or possession of black legless lizards without a 
special permit (see Factor D). Collection of species by reptile 
collectors could pose a serious threat to populations that contain few 
individuals. Legless lizards are not commonly collected or traded, 
however, and the black legless lizard's small size, secretive habits, 
and difficult maintenance requirements all suggest that the 
international trade in reptiles poses an insignificant threat to the 
taxon.

C. Disease or Predation

    The black legless lizard is not known to be subject to catastrophic 
diseases. In surveys, many individuals have broken or scarred tails, 
suggesting predation (Bury 1985). Miller (1944) believed that predation 
by feral house cats may negatively affect some black legless lizard 
populations. Threats posed by house cats and other predators associated 
with humans can be expected whenever urban development encroaches on 
the habitat of this lizard. The well documented persistence of black 
legless lizards for several decades in urban and suburban areas within 
the Monterey Bay area and the Monterey Peninsula settings suggests, 
however, that predation is a minor threat and the risk of even local 
extirpation due to predators associated with humans is probably low.

D. The Inadequacy of Existing Regulatory Mechanisms

    The black legless lizard is listed as a protected reptile under 
Section 650 of the Title XIV California Sport Fishing Regulations. 
Except under special permit from the California Department of Fish and 
Game, collection of black legless lizards is prohibited by the State of 
California. The habitat of this species is not specifically protected 
by any State or Federal regulation. Land use on black legless lizard 
habitat is controlled by local zoning, California State Park 
regulations on State Beaches such as Marina and Monterey State Beaches, 
and land management practices on Federal lands, including the Salinas 
River National Wildlife Refuge, portions of the former Fort Ord and the 
Naval Post-graduate School. The black legless lizard is often given 
special consideration in land use planning and in National 
Environmental Policy Act and CEQA compliance documents. The California 
Coastal Act regulates development within the coastal zone and has 
slowed the loss of coastal habitats such as the dunes and sand habitats 
used by black legless lizards. On Federal lands, the black legless 
lizard has also been afforded some protection indirectly through 
special management for Federal listed and candidate plant species that 
occur in coastal areas. Where the black legless lizard occurs with the 
endangered Smith's blue butterfly, which is the case throughout much of 
the black legless lizard's range, protection of habitat for the 
butterfly is likely to also benefit the lizard. As discussed under 
Factor A, most undeveloped private property within the range of the 
black legless lizard is already the subject of impact studies and 
development planning efforts, and it is highly likely that a stable 
equilibrium between urbanization and habitat protection will be 
achieved in the foreseeable future. In addition, the trend toward 
conversion of natural dune plant communities by exotic vegetation has 
been reversed (see Factor E) and should soon lead to a significant 
increase in suitable habitat for the black legless lizard. Therefore, 
the inadequacy of existing regulatory mechanisms does not constitute a 
significant threat to the black legless lizard.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Nearly all known coastal black legless lizard localities support 
populations of exotic plants such as Carpobrotus edulis, Ammophila 
arenaria, ice plant (Mesembryanthemum crystallinum), and veldt grass 
(Ehrharta calycina). Legless lizards are primarily associated with 
moist soil and leaf litter under native vegetation such as bush lupine 
(Lupinus albifrons), mock heather (Haplopappus ericoides), and sagewort 
(Artemisia sp.) and appear to be less abundant in areas dominated by 
Carpobrotus edulis (Miller 1944, Stebbins 1954, Bury 1985, City of Sand 
City 1992). During habitat restoration at Asilomar State Beach, where 
C. edulis was removed by hand from over 12 ha (30 ac), black legless 
lizards were not found in pure stands of C. edulis, but were found 
where Carpobrotus edulis grew in mixed stands with native shrubs (Tom 
Moss, pers. comm. 1993). Pure stands of some exotic plants may alter 
the substrate or prey base in a way that is detrimental to black 
legless lizards. While the mechanism is unclear, exotic plants may 
influence soil temperature or moisture differently than native 
vegetation. Some types of exotic plants, including ice plants, support 
a smaller arthropod prey base than native plant communities (Miller 
1944, Stebbins 1954, Nagano et al. 1981) and it is known that some ice 
plants can cause increased salt concentrations in soil (Kloot 1983). 
Bury (1985) speculated that ice plants may make habitat unsuitable for 
black legless lizards either because they have trouble maintaining 
their water balance in the substrate, or indirectly through reductions 
in arthropod abundance.
    In his status report, Bury (1985) found widespread patches of ice 
plant and other exotic vegetation on most of the

[[Page 43134]]

sites he surveyed. On undeveloped sites such as the State beaches, as 
well as on smaller fragments of dunes along developed stretches of 
coastline, the amount of habitat available to black legless lizards was 
limited by the presence of exotic plants, primarily C. edulis. As a 
result of a variety of publicly and privately funded restoration 
projects and volunteer efforts since 1985, however, most extant coastal 
dunes in the Monterey Bay area have had at least some level of exotic 
plant removal and native plant revegetation. The sites Bury surveyed 
which now have dune restoration programs include all of the State 
beaches, most notably Sunset State Beach, Salinas River State Beach, 
Marina State Beach, and Asilomar State Beach. Another restoration 
effort is underway at the U.S. Navy Post-graduate School (Cowan 1996) 
where, at the time of the Bury status report, the natural dune plant 
community on this site was restricted to a 0.5-ha (1.2-ac) patch. Over 
the subsequent 15 years, restoration has occurred on 10 ha (25 ac) of 
the 16 ha (40 ac) of dunes on the site. Several other sites, most not 
specifically mentioned by Bury, have ongoing exotic plant removal and 
revegetation programs, including the Monterey Peninsula Regional Parks 
District lands near the City of Marina and the old landfill on the Sand 
City coastline, the old Phillips Petroleum site near the City of 
Monterey, which has recently been purchased by the CDPR, and the City 
of Monterey's program at Del Monte Beach. Some dune restoration 
projects including exotic plant removal and revegetation are also 
occurring on private property in and around Seaside and Sand City, and 
on the Monterey Peninsula. Two examples of projects on the Monterey 
Peninsula are the efforts to protect and manage about 24 ha (60 ac) of 
created and restored dunes and about 6.8 ha (17 ac) of natural dunes 
near the golf course at Spanish Bay and the restoration on about 2 ha 
(5 ac) of dunes at Fan Shell Beach near Spyglass Hill, Cypress Point.
    The largest contiguous coastal tract of black legless lizard 
habitat surveyed by Bury was on the former Fort Ord. Bury identified 
about 190 ha (470 ac) along a roughly 6.4 km (4 mi) stretch of coastal 
dunes. At the time, Fort Ord was an active U.S. Army base and the dunes 
and native vegetation were highly disturbed by past and ongoing 
military activities. Bury reported that the dunes were covered by 
Carpobrotus edulis and supported little native vegetation. Although 
Fort Ord has been decommissioned, this habitat remains in much the same 
condition as it was when Bury described it. However, under the 
authority of the HMP for the former Fort Ord, over 340 ha (850 ac) 
along the stretch of beach described by Bury will be transferred from 
the U.S. Army to the CDPR (U.S. Army Corps of Engineers 1997). The HMP 
calls for preservation and exotic plant removal, as well as restoration 
and maintenance of native dune plant communities on over 280 ha (700 
ac).
    Because the current trend is toward restoration of coast dune 
ecosystems, it is unlikely that, in the foreseeable future, conversion 
of black legless lizard habitat by exotic vegetation will occur at 
levels similar to those between the time of the natural history studies 
of Miller (1944) and the Bury status review (1985). Most likely, the 
ratio between exotic and native vegetation in the Monterey Bay area 
dunes within the foreseeable future will reflect funding levels and 
commitment to the various restoration programs. Because black legless 
lizards have been encountered recently on several restoration and 
revegetation sites on Monterey Bay and the Monterey Peninsula, 
including Marina State Beach, the U.S. Navy Post-graduate School and 
Asilomar State Beach, it appears that they are able to live in restored 
dune habitats.
    Although there may be short-term negative effects on black legless 
lizards from some restoration methods (e.g., the use of glyphosphate 
instead of hand harvest for Carpobrotus edulis removal), the Service is 
aware of no evidence that any such effects pose a significant threat to 
the species.
    Fragmentation of existing black legless lizard habitat due to the 
construction of roads, golf courses, and other urban development was 
identified as a potential threat in the proposed rule (60 FR 39334). 
However, based on additional review and new information the Service no 
longer believes that habitat fragmentation poses a significant threat 
to the species in the foreseeable future. The common occurrence of 
legless lizards in residential neighborhoods, on agricultural and 
commercial properties, in and around the roughs adjacent to golf course 
fairways, and even under paved roadways suggests that this is not a 
significant threat. Although fragmentation may increase the 
vulnerability of smaller populations to local extirpation from random 
events, the large blocks of relatively unfragmented habitat that are 
already protected, or will likely be protected in the foreseeable 
future, are sufficient to buffer the effects of random events on larger 
populations. Therefore, the overall impact of random events to the 
black legless lizard is unlikely to be significant.
    The proposed rule also identified relatively low fecundity in the 
black legless lizard as a potential threat, because it implied a 
relatively long population recovery time and a heightened sensitivity 
to habitat degradation from off-road vehicles, trampling, and other 
disturbances (60 FR 39334). Because the black legless lizard is now 
known to occur in many areas protected from such disturbances, and in 
other areas that will likely be protected from such disturbances in the 
near future, relatively low fecundity, in and of itself, is not likely 
to pose a significant threat to the survival of the species.
    In the proposed rule (60 FR 39334), the Service also identified 
strong storms and periodic extremely high tides as potential threats to 
the species. Because the black legless lizard is now known to occur in 
protected areas throughout its range, the Service now believes that the 
threat posed by such rare, random weather events is unlikely to be 
significant to the survival of the species. There are other random 
factors with the potential to affect small, isolated populations. There 
is, however, too little known about population size and how it 
fluctuates, population structure, and the dispersal capabilities of the 
black legless lizard to support more than speculation about the 
potential threat posed by random events on this species. The Service is 
not aware of any evidence suggesting that random events pose a 
significant degree of threat to the black legless lizard.

Finding and Withdrawal

    The Service carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the black legless lizard. The withdrawal is based primarily on 
the finding that the black legless lizard is now known to occur in a 
wider variety of habitats than previously thought and that a large 
proportion of the remaining habitat of the lizard is already protected 
from urbanization and commercial development on public lands (U.S. Army 
Corps of Engineers 1997; D. Pendergrass, in litt. 1997; M. Houlemard, 
in litt. 1997), and on the likelihood that widespread losses of habitat 
due to the invasion of exotic vegetation are unlikely to continue in 
the foreseeable future. Moreover, the current trend is toward 
restoration of coastal ecosystems, a trend that should increase the 
available habitat for the black legless lizard. In addition, because

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of the existing protected habitat areas and other areas likely to 
receive some protection in the foreseeable future, potential threats 
from habitat fragmentation, relatively low fecundity, and extreme 
weather events cited in the proposed rule are now considered unlikely 
to pose significant threats to the survival of the species.

References Cited

    A complete list of all references cited herein is available upon 
request from the Ventura Fish and Wildlife Office (see ADDRESSES 
section).
    Author. The primary author of this document is Steve Morey, 
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
3310 El Camino, Sacramento, California 95821-6340 (916/979-2710).

Authority

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

    Dated: July 29, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-21565 Filed 8-11-98; 8:45 am]
BILLING CODE 4310-55-P