[Federal Register Volume 63, Number 161 (Thursday, August 20, 1998)]
[Rules and Regulations]
[Pages 44587-44595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22448]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC09
Endangered and Threatened Wildlife and Plants; Final Rule To
Determine the Plant Pediocactus winkleri (Winkler Cactus) To Be a
Threatened Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The Fish and Wildlife Service (Service) determines the plant
species Pediocactus winkleri (Winkler cactus), to be a threatened
species. P. winkleri is endemic to lower elevations of the Colorado
Plateau in south-central Utah. Four populations of P. winkleri are
known. These populations total about 20,000 plants that grow on widely
separated parcels of habitat between 1 (2.4 acres (ac)) and 20 (48 ac)
hectares (ha) in size. This species is threatened by collection and by
habitat disturbances due to mining, recreation, and livestock. This
determination, that P. winkleri is a threatened species, implements
protection under the Endangered Species Act of 1973, as amended.
DATES: This rule is effective September 21, 1998.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the U.S. Fish and
Wildlife Service, Lincoln Plaza, Suite 404, 145 East 1300 South, Salt
Lake City, Utah 84115.
FOR FURTHER INFORMATION CONTACT: John L. England at the above address
(telephone 801/524-5001).
SUPPLEMENTARY INFORMATION:
Background
Pediocactus winkleri was discovered in the early 1960's and
described in scientific literature by Heil (1979). The plant genus
Pediocactus contains eight species, seven of these are rare endemics of
the Colorado Plateau region of Utah, Colorado, New Mexico, and Arizona
(Heil et al. 1981).
Pediocactus winkleri is a small globose (globular) cactus with
stems 2.5 to 6.5 centimeters (cm) (1 to 2.5 inches (in)) tall and up to
5 cm (2 in) in diameter. It has clusters of 9 to 11 small radial spines
with dense fine woolly hairs at their base; erect central spines are
lacking. The flowers of P. winkleri are urn shaped, 1.8 to 2.5 cm (0.7
to 1 in) long and 1.8 to 3.8 cm (0.7 to 1.5 in) in diameter, and have a
peach-to-pink color. The fruit is barrel shaped, 0.7 to 1.0 cm (.3 to
.4 in) high and 0.8 to 1.1 cm (.31 to .43 in) wide, dehiscing (process
of opening) by a vertical slit along the ovary wall. The seeds are
shiny black, 3 millimeters (mm) (.12 in) long and 2 mm (.08 in) wide
(Heil 1979, Heil et al. 1981; Welsh et al. 1993).
Based on the most recent surveys, the Service has determined that
Pediocactus winkleri occurs in four populations that total about 20,000
plants (Kass 1997; Fish and Wildlife Service 1994, 1997; D. Clark,
Torrey, Utah, personal communication 1998). The October 6, 1993,
proposed rule to list P. winkleri as endangered (58 FR 52059) stated
that P. winkleri occurred in 6 populations of about 3,500 plants. The
abundance estimate of 3,500 plants given in the proposed rule was
obtained from Heil (1984). Surveys through 1998, however, have
documented about 5,800 individual P. winkleri plants (Fish and Wildlife
Service 1997, Kass 1997, D. Clark, per. comm. 1998). Recent surveys in
1994 (Fish and Wildlife Service 1994), 1996 (T. Clark, Capitol Reef
National Park, pers. comm. 1996), 1997 (Fish and Wildlife Service 1997,
Kass 1997), and 1998 (D. Clark, per. comm. 1998) indicate that the
species total population could reasonably be estimated to be as many as
20,000 plants based on the amount of available habitat. Each of the
four populations contain a number of widely separated sites from 1 ha
(2.4 ac) to 20 ha (48 ac) in size. Since the proposed rule was
published, a survey conducted by the Bureau of Land Management (BLM)
discovered an additional population near the town of Ferron in
southwest Emery County, Utah (Fish and Wildlife Service 1994). The
Service and BLM conducted additional surveys of the species' entire
potential habitat on silty soils derived from the Dakota, Mancos, and
Morrison geologic formations. Additional sites were discovered within
existing population areas (Fish and Wildlife Service 1997; D. Clark
1998, pers. comm.). The Park Service also reports larger numbers of the
cactus within Capitol Reef National Park (K. Heil, pers. comm. 1993;
Tom Clark, Capitol Reef National Park, pers. comm. 1996, 1997; D.
Clark, pers. comm 1998). The BLM reports larger numbers of the species
from the Last Chance Desert population (Wayne Luddington, Bureau of
Land Management, Price, Utah, pers. comm. 1997; Fish and Wildlife
Service 1997). Service biologists visited these sites and subsequently
reviewed the status of all extant populations of P. winkleri (Fish and
Wildlife Service
[[Page 44588]]
1994, 1997). The Service consolidated the five P. winkleri populations
in Wayne County, Utah (Heil 1984 and Neese 1987) into two populations,
Notom and Hartnet, (Fish and Wildlife Service 1994) in an effort to be
consistent with the two, more recently discovered populations, Last
Chance and Ferron, in Emery County.
Individual Pediocactus winkleri plants are usually situated on the
tops and sides of rocky hills or benches in Atriplex (saltbush)
dominated desert shrub communities (Heil 1984). The species grows in
alkaline silty loam or clay loam soils derived primarily from the
Dakota formation, the Brushy Basin member of the Morrison formation,
and the Emery sandstone member of the Mancos formation (Heil 1984,
Neese 1987, Fish and Wildlife Service 1997).
Three of the four populations of Pediocactus winkleri form a narrow
arc extending from near Notom in central Wayne County to the vicinity
of Last Chance Creek in southwestern Emery County, Utah. The fourth is
a disjunct population occurring near Ferron, Utah, in western Emery
County. Most of these populations occur in widely scattered patches in
a range about 58 kilometers (km) (36 miles (mi)) long and about 0.5 km
(0.3 mi) wide. About two thirds of the population occurs on lands
managed by the BLM east and north of the Capitol Reef National Park
boundary. The remainder of the plants are found within the Park.
The range of Pediocactus winkleri converges upon populations of the
listed endangered cactus P. despainii (San Rafael cactus). P. despainii
and P. winkleri are described as separate species in all taxonomic
treatments involving those species in regional floras (Welsh et al.
1993) and in monographs of the genus (Heil et al. 1981; K. Heil, San
Juan College, Farmington, New Mexico, pers. comm. 1994, 1998). Recent
cytotaxonomic research demonstrates that typical P. winkleri from the
Notom population is genetically different from typical P. despainii
from the San Rafael Swell (M. Porter, Rancho Santa Ana Botanic Garden,
Claremont, California, pers. comm. 1998). However, the two species are
phylogenetically related, and it has been suggested (Kass 1990) that
they be treated as varieties (i.e. subspecies) of P. winkleri, the
first of the two species to be described (Heil 1979; Welsh & Goodrich
1980). Occasional plants within the northern portion of the Last Chance
population bear characteristics intermediate between P. winkleri and P.
despainii. The two species are, however, morphologically distinct and
geographically separated. The Service recognizes P. winkleri as a
species distinct from P. despainii. If these species are later
recognized as subspecies, their designations as threatened and
endangered species will remain valid because section 3(15) of the Act
allows for the listing of subspecies.
Previous Federal Action
Federal actions relating to this species began when the Secretary
of the Smithsonian Institution prepared a report on those plants
considered to be endangered, threatened, or extinct. This report (House
Document No. 94-51) was then presented to Congress on January 9, 1975.
On July 1, 1975, the Service published a notice in the Federal Register
(40 FR 27823) formally accepting the report as a petition under section
4(c)(2) of the Act (petition acceptance is now governed by section
4(b)(3) of the Act), and acknowledging its intention to review the
status of those plants. Pediocactus winkleri was not included in the
1975 notice but was included as a new candidate species in the Federal
Register notice of December 15, 1980 (45 FR 82480). The 1980 notice
included P. winkleri as a Category 1 species. Category 1 species were
those taxa for which the Service had on file substantial information on
the biological vulnerability and threats to support proposing them as
endangered or threatened species.
Section 4(b)(3)(B) of the 1982 amendments to the Act required the
Secretary of the Interior to make a finding within 1 year of receiving
a listing petition as to whether the listing is warranted, warranted
but precluded by other pending proposals of higher priority, or not
warranted. In this case a ``warranted but precluded'' finding was made.
This category requires a finding each year thereafter until the
petitioned taxa are either proposed for listing or a final ``not
warranted'' finding is made.
Section 2(b)(1) of the 1982 amendments further required that all
petitions pending as of October 13, 1982, be treated as having been
newly submitted on that date. To facilitate making the necessary annual
``warranted but precluded'' findings on several plant taxa, the Service
made an administrative decision to treat all the plant candidates in
Category 1 and Category 2 at that time as if their listings had been
petitioned on October 13, 1982. This included species such as
Pediocactus winkleri which was included as a candidate in the 1980
Notice of Review but was never the subject of a petition. As a result
of the administrative decision to treat these species as petitioned, P.
winkleri was included in the annual warranted but precluded findings,
first published on October 13, 1983.
In the November 28, 1983, supplemental notice (48 FR 53640), the
Service changed the status of Pediocactus winkleri from Category 1 to
Category 2 as a result of a careful review of the status information.
Category 2 species were taxa for which the Service had information
indicating the appropriateness of a proposal to list the taxa as
endangered or threatened but for which more substantial data were
needed on biological vulnerability and threats. The Service
discontinued use of a category system in the February 28, 1996, Federal
Register notice (61 FR 7596).
On September 27, 1985, the Service published a Notice of Review (50
FR 39526) replacing the 1980 notice and its 1983 supplement. This
Notice of Review included Pediocactus winkleri as a Category 1 species,
a change resulting from a status survey for P. winkleri (Heil 1984),
which documented the vulnerability and threats to this species. The
Service published Notices of Review on February 21, 1990 (55 FR 6184)
and September 27, 1993 (58 FR 51144), which retained P. winkleri as a
Category 1 species. The Service's proposal to list P. winkleri as
endangered on October 6, 1993 (58 FR 52059), constituted the warranted
12-month petition finding for this species. During the public comment
period on the 1993 proposal, the Service received substantive comments
on information contained in the proposal regarding the threats to and
population numbers of P. winkleri. Since that time, the Service has
made efforts through additional surveys to obtain the best available
scientific information in making the decision to list P. winkleri. The
Service believes this final rule is an accurate assessment of the
population numbers and threats faced by this species. In order to
obtain and incorporate any new scientific information into this final
determination for P. winkleri, and due to new information on the
species range and abundance obtained by the Service since the comment
period closed on December 6, 1993 (58 FR 52059), the Service reopened
the public comment period for 30 days on June 22, 1998 (63 FR 33901).
The Service published Listing Priority Guidance for Fiscal Years
1998 and 1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the
order in which the Service will process rulemakings giving highest
priority (Tier 1) to processing emergency rules to add species to the
Lists of Endangered and Threatened
[[Page 44589]]
Wildlife and Plants (Lists); second priority (Tier 2) to processing
final determinations on proposals to add species to the Lists,
processing new proposals to add species to the Lists, processing
administrative findings on petitions (to add species to the Lists,
delist species, or reclassify listed species), and processing a limited
number of proposed or final rules to delist or reclassify species; and
third priority (Tier 3) to processing proposed or final rules
designating critical habitat. Processing of this proposed rule is a
Tier 2 action.
Summary of Comments and Recommendations
In the October 6, 1993, proposed rule and associated notifications,
and the June 22, 1998, notice, all interested parties were requested to
submit factual reports or information that might contribute to the
development of a final rule. Appropriate Federal and State agencies,
county governments, scientific organizations, and other interested
parties were contacted and were requested to comment. Newspaper notices
requesting public comments were published in The Salt Lake Tribune and
the Deseret News on November 4, 1993, and the Emery County Progress on
November 2, 1993.
In accordance with the Services' peer review policy published on
July 1, 1994 (59 FR 34270), the Service solicited the expert opinions
of three botanists regarding information contained in the proposed rule
and new information obtained following the proposal on the species
status. The three reviewers chosen are associated with colleges and
universities and are considered experts on the species. All three
reviewers responded and concurred with the Service's assessment of the
threats facing this species.
During the comment period the Service received a total of twelve
comment letters which are addressed in the following summary. Pertinent
information received during the comment period has been incorporated
into this final rule.
Issue 1: Botanical surveys by Neese (1987), Heil (1987), and Kass
(1990), while in or near the habitat of Pediocactus winkleri, had
objectives other than a specific inventory for P. winkleri. The
population of P. winkleri may be greater than 3,500 as stated in the
proposed rule, which was apparently based on the Heil (1984) status
report for P. winkleri. The Heil status report does not document how
the species population of 3,500 was arrived at. Additional inventory is
needed to establish a more accurate species population number.
Service Response: From the close of the initial 1993 comment period
on December 6, 1993, several additional surveys and studies were
conducted (Fish and Wildlife Service 1994; 1997; Kass 1997; D. Clark,
pers. comm. 1998). As described above in the ``Background'' section,
these surveys documented a larger population than was known in 1993 and
give a better understanding of the natural and human caused impacts to
the species. Surveys through 1998 have documented actual numbers of
Pediocactus winkleri plants at about 5,800 (Fish and Wildlife Service
1997, Kass 1997, D. Clark, per. comm. 1998). Based on these most recent
surveys, the Service concurs with estimates by the BLM that P. winkleri
occurs in four populations with a total number of approximately 20,000
plants, which results from acceptable extrapolation of direct survey
counts (Kass 1997; Fish and Wildlife Service 1994, 1997; D. Clark,
pers. comm. 1998).
Issue 2: The Service should resolve the taxonomic relationship
between Pediocactus despainii and P. winkleri before final listing.
Distinguishing between the two species in wild populations is
difficult.
Service Response: Pediocactus despainii and P. winkleri are
currently considered separate species in all taxonomic treatments
involving those species in regional floras (Welsh et al. 1993) and in
monographic treatments of the genus (Heil et al. 1981; K. Heil, pers.
comm. 1994, 1998). However, the two species are phylogenetically
related, and it has been suggested (Kass 1990) that they be treated as
varieties of P. winkleri, the first of the two species to be described
(Heil 1979; Welsh & Goodrich 1980). Plant taxonomists working
specifically on this genus have no information, at this time, which
would warrant an alternative taxonomic treatment (Welsh et al. 1993; K.
Heil, pers. comm. 1994, 1998; M. Porter, pers. comm. 1994, 1998).
The two species are morphologically distinct and geographically
separated as discussed above in the above ``Background'' section.
Pediocactus winkleri has uniformly smaller seeds than P. despainii. P.
winkleri areoles (the basal structure at the tip of stem tubercles
which forms the base from which the spines arise) are wooly with dense
villous hairs. P. despainii areoles are naked except for its spines.
These facts strongly suggest the current taxonomic classification is
accurate (K. Heil, pers. comm. 1993). Recent cytotaxonomic research
indicates that the P. winkleri and P. despainii are taxonomically
distinct (M. Porter, pers. comm. 1998).
Issue 3: Recreational off-road vehicle (ORV) use is not affecting
all populations of Pediocactus winkleri. The heaviest ORV use in the
Notom area occurs outside the species' occupied habitat. The Hartnet
site is located within Capitol Reef National Park where no ORV use is
occurring. P. winkerli's characteristic of shrinking underground during
its vegetative stage naturally protects the species and it is only
vulnerable during its spring flowering period. The BLM has restricted
ORV use in the Price Resource Area within P. winkleri habitat.
Service Response: ORV's are affecting all of the species'
populations to some degree, with the exception of the Last Chance
population where no ORV use occurs. Locally heavy use occurs with
observed adverse impacts in the Ferron population. Although ORV use
does not occur in that portion of the Harnet population contained
within Capitol Reef National Park, the remainder of this population
occurs on BLM land and is subject to ORV use. Occupied Pediocactus
winkleri habitat within the BLM portion of the Hartnet population
experiences frequent ORV spillover from the adjacent Dry Wash area
where heavy ORV use occurs. The Service agrees that the heaviest ORV
use occurs outside of occupied habitat in the Notom area, however, this
population also experiences frequent ORV spillover use (K. Heil, pers.
comm. 1993; Fish and Wildlife Service 1994, 1997; Wayne Luddington,
Bureau of Land Management, Price, Utah, pers. comm. 1996, 1997). The
BLM ORV restrictions in the Price Resource Area are for and within
populations of P. despainii, a listed endangered species, not P.
winkleri. Regarding the characterisic of the species to shrink
underground see discussion under Factor A.
Issue 4: Livestock trampling is a minimal and decreasing threat to
Pediocactus winkleri. The BLM has reduced livestock grazing levels in
all P. winkleri habitat, in some cases to less than 20% of previous
levels.
Service Response: The Service is aware of adverse impacts to this
cactus from livestock trampling. Recent survey and habitat monitoring
information show that livestock trampling continues to kill Pediocactus
winkleri plants (K. Heil, pers. comm. 1993; Fish and Wildlife Service
1994, 1997). This species is poorly adapted to the impacts of large,
sharp-hoofed ungulates, and plants are easily dislodged and killed by
domestic livestock herds moving through its habitat. This trampling
impact is most damaging during periods
[[Page 44590]]
when the soil surface is wet. These conditions occur most commonly
during mild winter and early spring days when livestock grazing is most
intense in the species' desert range habitat. Most of the reduction in
livestock grazing within Capitol Reef National Park occurred in the
southern portions of the Park outside the species' range. However, the
Service acknowledges that this threat is decreasing and is, at present
and by itself, a low level chronic threat, not a high level acute
threat.
Issue 5: Mining and mining claim assessment work for gypsum and
uranium is a minimal and decreasing threat to Pediocactus winkleri.
Known occurrences of gypsum in the vicinity of P. winkleri populations
occur in the Carmel Formation which is not habitat for the species.
Development of known occurrences of uranium have only a slight
potential to affect the species. Current low prices for uranium ore are
expected to decrease interest in prospecting and mining claim
assessment work within the range of the species. Changes in regulations
affecting mining claim assessment activities are expected to decrease
surface disturbance associated with mining claim assessment work.
Service Response: The Service has noted the above comment and has
revised the final rule appropriately. The recent development of a mine
for high quality, cosmetic grade bentonite clay is adversely affecting
the species in the Last Chance Desert (Fish and Wildlife Service 1994,
1997). Mining claims cover the entire Last Chance Desert population of
Pediocactus winkleri. Oil and gas activity is directly affecting the
Ferron population. A portion of this population was lost to a gas well.
A portion of the Hartnet population is in an oil and gas lease area.
Issue 6: A commenter questioned whether or not the Notom
Pediocactus winkleri population has experienced an 80 percent loss of
its individuals to collectors. Another commenter questioned a statement
in the June 22, 1998, notice reopening the comment period that the FWS
estimation of the population size at Notom has declined from about
2,000 individuals in 1984 to an estimated 700 individuals in 1997.
Service Response: In the 1993 proposal, the Service estimated that
about 80 percent of the plants in the Notom area were taken by plant
collectors over the last 10 years. The Service has revised this final
rule to indicate that only the portion of the Notom population in the
area of the monitoring transect has undergone a significant reduction
in numbers of plants primarily from collection. In 1984 the Service
established a monitoring transect in the Notom population of
Pediocactus winkleri in an easily accessible area that cactus
collectors frequent (Fish and Wildlife Service 1994, 1997). The Service
has periodically monitored this transect, usually at 2-year intervals.
The P. winkleri population along this transect declined from 53 plants
in 1984 to zero plants in 1997. Overall the population in the immediate
vicinity of the monitoring transect declined from 387 individuals in
1994 to 221 in 1997 (Fish and Wildlife Service 1997). The Service feels
that this loss of plants is primarily attributed to collection,
however, other factors including the characteristic of this species to
remain underground during dry years may have contributed to a higher
estimate of plant loss then has really occurred. The spring 1998 survey
estimated the entire Notom population at about 4,000 individuals.
The Service, during its 1997 survey of the Notom population,
discovered 27 shovel marks within the occupied habitat of this species.
These marks were at the locations of plants last observed in 1994 and
missing in 1997, and are obviously the remains of an effort to exploit
this horticulturally desirable species. Most field collected cacti,
however, are collected using smaller garden trowels, and consequently
excavation scars are usually not noticeable after a few months.
Issue 7: The BLM has the ability to manage for the conservation of
candidate species on lands under their jurisdiction and can control
collection of the species.
Service Response: Collection of desirable small rare cacti is a
difficult action to detect and to control. The recognition and
protection offered a listed species under the Act focuses resources for
its preservation and recovery, and reinforces the actions of the BLM
and other Federal agencies through sections 7 and 9 of the Act for
conservation of the species. The listing of species under the Act
focuses the management actions of all Federal agencies to provide
active conservation and protection for listed species and provides
opportunities for States to assist in plant conservation under Section
6 of the Act.
Issue 8: People living in an area where endangered species are
proposed for listing should be informed in time to be able to comment
and to hold public hearings.
Service Response: One commenter requested a 2- to 3-year comment
period and also requested that a public hearing should be held. This
was the only request for a public hearing and the request was not
received during the specified open comment period.
As stated previously, immediately after publication of the proposed
rule on October 6, 1993, the Service contacted all known interested
parties (i.e., Federal and State agencies, county governments,
scientific organizations, and others), and comments were solicited from
them. In addition, newspaper notices requesting public comments were
published (between November 2 and 4, 1993) in three newspapers that
cover the potentially affected area. Thus, the Service believes that
adequate time was given to receive requests for public hearings.
The Service specified that public hearing requests must be received
by November 23, 1993, and no such request was received by that date.
However, at the request of Emery County, a representative of the
Service met with county officials to explain the Service's rationale
for proposing to list the species, and to receive the County's
comments. The Emery County commissioners were concerned that the
listing of Pediocactus winkleri would interfere with the economic
activities of grazing and mining within their County. These concerns
were also expressed in writing. The Service recognizes that potential
restrictions in land use to protect this cactus could limit some future
mining development plans and livestock grazing activities on Federal
lands within the species' range. P. winkleri has a limited distribution
and therefore widespread restrictions on these activities on public
lands in Emery and Wayne counties is not anticipated. The Service
reopened the public comment period again on June 22, 1998. The second
comment period closed on July 22, 1998. The Service received four
comments during the reopened comment period and has incorporated new
information provided during the comment period in this finding.
Issue 9: The BLM believes that threats to the species have not been
adequately quantified, have lessened since the proposed rule was
published, and that species' protection under a conservation agreement
would be more appropriate than listing.
Service Response: Threats to the species continue unabated since
the proposed rule was published in October 1993. Evidence of take was
documented not only at a specific transect which has been monitored
since 1984, but also from site visits where photographs of cattle
trampling, collecting, and ORV loss were documented. These losses are
[[Page 44591]]
not natural losses which could be expected to occur but losses which
could be prevented through stricter regulation and enforcement
activities.
The Service commends the BLM for initiating the ``Pediocactus
winkleri and Pediocactus despainii Conservation Agreement and
Strategy'' and for its anticipated future implementation. The proposed
agreement contains strategies which, if implemented over time, would
assist in the recovery of both species of cactus. However, the
agreement is in draft form and is not signed. As such, the Service is
not able to consider the effectiveness of this agreement in reducing or
eliminating the threats to this species in the future as part of the
decision to list.
Copies of the listing proposal were provided to three professional
botanists with research experience with rare flora including
Pediocactus winkleri. The supplemental population information provided
by BLM was also forwarded for their review. The three reviewers
continue to support listing due to continued threats to the species.
The Service does not believe that the larger numbers of Pediocactus
winkleri found in BLM's most recent data is a function of reduced
threat, but instead is a function of the increased effort put forth to
find individual plants. Most surveys up until this year were conducted
by one or two individuals with limited resources. More recent BLM
surveys were conducted by four or more individuals over a period of
several weeks.
Even though the increased surveys resulted in increased numbers of
Pediocactus winkleri, the threats to the species have not diminished to
the point that the species does not need protection under the Act. The
Service therefore believes listing as threatened is justified as
described in the following sections.
Summary of Factors Affecting the Species
After a thorough review of all available information, the Service
has determined that Pediocactus winkleri should be listed as a
threatened species. Procedures found in section 4(a)(1) of the Act and
regulations implementing the listing provisions of the Act (50 CFR part
424) were followed. 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 P. winkleri are
as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The small, restricted populations
of Pediocactus winkleri make the species highly vulnerable to human-
caused habitat disturbances. ORV activity, mineral development, road
and utility corridor development, and livestock trampling have
adversely affected this species (Heil 1984, 1987; Heil, pers. comm.
1993; Neese 1987; Fish and Wildlife Service 1994, 1997). This species
is especially vulnerable during the spring flowering period when
seasonally moist soils make it susceptible to damage and mortality from
surface disturbance of its habitat. The species is easily dislodged by
domestic livestock and ORV's during periods when the soil is wet. ORV
use and livestock grazing are most intense during the mild spring
season when the species is most vulnerable to habitat disturbance.
During periods of drought, these cacti do not protrude above ground
level, thus rendering them less susceptible to livestock trampling and
damage by ORV activity. However, the species forms flower buds in the
autumn that persist over winter (Heil et al. 1981). These flowering
buds at the ground surface level are very vulnerable to surface
disturbance.
A considerable portion of the habitat of this species, as well as
individual plants, are being damaged by ORV activity (Heil 1984, Neese
1987; Fish and Wildlife Service 1994, 1997). At the northern and
southern limits of the species' range, occupied Pediocactus winkleri
habitat, located on sparsely vegetated slopes in readily accessible
areas, is adjacent to heavily used ORV recreational areas, and is being
impacted by ORV activity. Except for habitat within Capitol Reef
National Park and the Last Chance population on BLM lands, the
remaining habitat of P. winkleri is experiencing similar but lesser
impacts from ORV activity (Fish and Wildlife Service 1997). Hard-tired
ORVs such as motorcycles and four wheel drive trucks and other highway
vehicles are most damaging to the species. These hard-tired vehicles
can cause damage and mortality even when the plant is dormant.
Increased erosion as a consequence of ORV's damaging the natural desert
pavement and cryptogamic crust potentially increases the species'
exposure to losses from extreme weather events which occur in the area.
Livestock trampling has affected every population of this cactus
including those in Capitol Reef National Park (the Park is not closed
to livestock grazing). According to the BLM, livestock use in areas of
Pediocactus winkleri habitat has decreased in recent years, but the
impacts of trampling to some populations continue (Heil, pers. comm.
1993; Fish and Wildlife Service 1994, 1997). The Service believes
grazing and trampling impacts are, for the most part, more chronic than
acute and rarely impact more than one percent of the population each
year. Individuals lost due to livestock trampling probably could be
replaced by natural recruitment from the populations' seed bank.
However, cumulative impacts from collecting, localized ORV destruction,
and natural losses from disease and parasitism are at sufficient levels
in some portion of the species' range (i.e. Notom and Ferron
populations) that population viability is impaired.
The habitat of Pediocactus winkleri contains bentonite clay, oil
and gas and some uranium ore deposits. The development of these mineral
and petroleum deposits and surface disturbance by annual assessment
work has directly affected the species. Currently, oil and gas field
development activities are impacting the Ferron population. This
activity has destroyed individual plants and occupied habitat. Over
eighty percent of the area occupied by the Ferron population is leased
for oil and gas (Fish and Wildlife Service 1997). In addition,
bentonite clay mining has impacted the Last Chance population by
destroying individual plants and occupied habitat (W. Luddington, pers.
comm. 1994, 1996, and 1997). Much of the Last Chance population is in
areas with registered mining claims (Fish and Wildlife Service 1997).
The transfer of mining claim patents from the Public domain to private
ownership is not affected by the Act. Unauthorized utility and road
development within the species' Notom population caused individual
plant mortality and habitat degradation in 1995 and remains a potential
threat to the species (Fish and Wildlife Service 1997).
B. Over-utilization for commercial, recreational, scientific, or
educational purposes. Pediocactus winkleri is an attractive small
cactus, especially when it is in flower. Although difficult to
cultivate in most horticultural settings, this rare plant is highly
desired in cactus collections and gardens and has been sought by both
hobby and commercial cactus collectors (Hochstatter 1990, Heil 1984,
Heil, pers. comm. 1993, 1998). The fact that this species is difficult
to maintain in garden settings stimulates a continual demand for
replacement plants as cultivated garden and greenhouse plants die.
Cactus collectors are active in the Colorado Plateau, going from the
habitat of one species of Pediocactus to the next to collect a complete
set of the genus
[[Page 44592]]
(Heil, pers. comm. 1994; Fish and Wildlife Service 1994, 1997). A
portion of the Notom population of P. winkleri has been severely
reduced primarily from losses to plant collectors (Heil 1984 and U.S.
Fish and Wildlife Service 1997) (Also discussed under Issue 6). In
addition to the Notom population, the Hartnet and Ferron populations
are highly vulnerable to specimen collecting due to their ease of
access and their being known to cactus collectors (Heil 1984, and Fish
and Wildlife Service 1994, 1997).
C. Disease or predation. Because of its small size and the
shortness of its spines, this species of cactus is less protected from
animals than other, more spiny species. The effects of livestock
grazing on desert vegetation may produce indirect impacts on
Pediocactus winkleri populations. The desert range of P. winkleri had
very sparse use by large, wild ungulates prior to the introduction of
domestic livestock. Livestock grazing has caused changes in the
floristic composition of the species' desert ecosystem with the
introduction of weeds. These introduced weeds have the potential to
outcompete over the long term, and to eventually reduce or displace
native species, including P. winkleri. The effects of livestock
trampling are discussed in Factor ``A'' above. This species is also
susceptible to natural infestations of beetle larvae which will kill an
individual within two years of initial infestation (Fish and Wildlife
Service 1994).
D. The inadequacy of existing regulatory mechanisms. There are no
Federal or State laws or regulations directly protecting Pediocactus
winkleri or its habitat. The National Park Service (NPS) restricts, and
in most cases forbids, the collection of plants and plant materials
from National Parks. The BLM Manual 6840 (Special Status Species
Management) states that ``The BLM shall carry out management,
consistent with multiple use, for the conservation of candidate species
and their habitats and shall ensure that actions authorized, funded, or
carried out do not contribute to the need to list any of these species
as Threatened or Endangered.'' The BLM has the authority to control the
removal of vegetative materials from Federal lands under its management
and presently requires a permit to collect plant species. Current BLM
policy is to require a permit to collect any cactus from the habitat
area of P. winkleri. However, this species has populations that are
scattered over remote country, thus making protection from unauthorized
collecting difficult, even in Capitol Reef National Park. The Utah
Forest Products Act requires proof of ownership to harvest or transport
native vegetation from State, private, and Federal wildlands in Utah.
Listing of P. winkleri would also provide for greater statutory
protection and a more stringent penalty for take. Therefore, a greater
deterrent for taking the species would be established.
The species is listed in Appendix I of The Convention of
International Trade in Endangered Species of Wild Fauna and Flora
(CITES). CITES import and export permits are generally required for
international trade in Appendix I species, and permits are not allowed
for commercial shipments. The small size of these species makes them
easy to hide and therefore hard to detect in international commerce.
E. Other natural or manmade factors affecting its continued
existence. Pediocactus winkleri is restricted to a limited geographic
area with scattered, isolated occurrences and relatively low population
numbers per occurrence, which render this cactus vulnerable to human
disturbances. These additional stresses to the plant may exacerbate
natural disturbances to populations of this species.
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 make this rule
final. As described under the Act, a species should be found to be
endangered if the species is in danger of becoming extinct throughout
all or a significant portion of its range. The term threatened is
defined as likely to become endangered within the foreseeable future
throughout all or a significant portion of its range. In the proposed
rule, Pediocactus winkleri was proposed to be listed as an endangered
species. With the new information collected on this species since the
proposed rule the Service has found that the population numbers are
larger than previously estimated. Based on a reevaluation of the
population numbers and threats, the preferred action is to list P.
winkleri as threatened. Collection has been documented in a portion of
the Notom population to significantly lower its numbers and is
considered a primary threat to the Hartnet and Ferron population.
Surface disturbances are impacting the ecosystem in which the species
occurs and may increase in the future, especially from recreational ORV
use. However, in an effort to eliminate soil compaction and plant
destruction, the draft BLM Conservation Agreement and Strategy will
restrict ORV use to existing roads and trails through the preparation
of a managment plan. Because of new information indicating a relatively
larger population of P. winkleri, and the expected implementation of a
Conservation Agreement and Strategy aimed at reducing and eliminating
threats to P. winkleri, threatened status is a more accurate assessment
of the current condition of this species. For the reasons given below,
it is not prudent to designate critical habitat at this time.
Critical Habitat
Critical habitat is defined in section 3(5)(A) 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
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. ``Conservation'' means the use of all methods and
procedures that are necessary to bring the species to the point at
which the measures provided pursuant to the Act are no longer
necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12(a)) require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat
concurrently with determining a species to be endangered or threatened.
The Service finds that designation of critical habitat is not prudent
for this species at this time. Service regulations (50 CFR
424.12(a)(1)) state that designation of critical habitat is not prudent
when one or both of the following situations exist: (i) The species is
threatened by taking or other human activity, and identification of
critical habitat can be expected to increase the degree of such threat
to the species, or (ii) such designation of critical habitat would not
be beneficial to the species.
As noted under Factor B in the ``Summary of Factors Affecting the
Species'', Pediocactus winkleri is threatened by collection, an
activity difficult to prevent. The listing of species as endangered or
threatened publicizes their rarity and may make them more susceptible
to collection. The publication of precise maps and descriptions of
critical habitat would make P. winkleri more vulnerable to collection.
Precise maps could also threaten more remote areas of P.
[[Page 44593]]
winkleri habitat, currently not subject to collection, by providing
specific location information to cactus collectors. The Service feels
that publication of precise maps for this species along with this final
listing rule would put this species at greater risk of collection by
cactus enthusiasts given the well documented history of previous
collections.
Critical habitat designation, by definition, directly affects only
Federal agency actions. P. winkleri occurs entirely on lands under
Federal (BLM and NPS) management. Federal actions that might affect
this species and its habitat include activities such as mining,
grazing, and ORV use. Such activities would be subject to review under
section 7(a)(2) of the Act, whether or not critical habitat was
designated. 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 a listed species or to destroy or
adversely modify its critical habitat. Federal actions satisfying the
standard for adverse modification are nearly always found to also
jeopardize the species concerned, and the existence of critical habitat
designation does not materially affect the outcome of consultation. The
Service recognizes that there may be some benefit in designating
critical habitat for highly endangered species whose survival and
recovery depend upon expansion of range and numbers into currently
unoccupied habitat. However, this is not the case for P. winkleri which
is being listed as threatened and does not require unoccupied habitat
for its survival or recovery. Habitat protection for P. winkleri can be
accomplished through the section 7 jeopardy standard and there would be
no benefit from designating critical habitat for this species.
Both the BLM and NPS are actively involved in the management and
monitoring of Pediocactus winkleri and are aware of the threats facing
this species. BLM has drafted a Conservation Agreement, with the
assistance of the NPS and other partners, aimed at reducing and
eliminating identified threats to P. winkleri. Designation of critical
habitat would not increase the commitment or management efforts of the
BLM or NPS. The Service believes that protection of P. winkleri will be
better addressed through the recovery process and through section
7(a)(2) of the Act, as amended.
The Service finds that the designation of critical habitat is not
prudent because of the increase of threat from collection which far
outweighs any benefit that might be gained from identifying areas in
need of special protection. The Service feels that recovery of the
species will be accomplished more effectively with the current
coordination process that the Service has established with the BLM and
NPS.
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 results in public awareness and
conservation actions by Federal, State, and local agencies, private
organizations, 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)(2) requires Federal agencies to insure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into formal consultation with the Service.
Pediocactus winkleri occurs on Federal lands managed by the BLM and
the NPS. Both of these Federal agencies are responsible for insuring
that all activities and actions on lands that they manage are not
likely to jeopardize the continued existence of P. winkleri.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all threatened
plants. All trade prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 apply. These prohibitions, in part, make it
illegal for any person subject to the jurisdiction of the United States
to import or export, transport in interstate or foreign commerce in the
course of a commercial activity, sell or offer for sale this species in
interstate or foreign commerce, or to remove and reduce to possession
the species from areas under Federal jurisdiction. In addition, for
plants listed as endangered, the Act prohibits the malicious damage or
destruction on areas under Federal jurisdiction and the removal,
cutting, digging up, or damaging or destroying of such plants in
knowing violation of any State law or regulation, including State
criminal trespass law. Section 4(d) 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 a statement of ``cultivated origin''
appears on their containers. Certain exceptions to the prohibitions
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
plants under certain circumstances. Such permits are available for
scientific purposes and to enhance the propagation or survival of the
species. For threatened plants, permits also are available for
botanical or horticultural exhibition, educational purposes, or special
purposes consistent with the purposes of the Act. It is anticipated
that permits will be sought for cultivated specimens, which are
currently available through domestic and international nurseries.
Requests for copies of the regulations regarding listed species and
inquiries about prohibitions and permits may be addressed to the
Regional Director, U.S. Fish and Wildlife Service, P.O. Box 25486,
Denver Federal Center, Denver, Colorado 80225; telephone number 303-
236-7398; facsimile number 303-236-0027. 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 1018-6649. For additional
information concerning these permits and associated requirements, see
50 CFR 17.72.
On July 29, 1983, Pediocactus winkleri was included in Appendix I
of CITES. Appendix I species generally require both an export and
import permit before international shipment of this species can occur.
Such shipment is strictly regulated by CITES party nations to prevent
effects that may be detrimental to the species' survival. Generally,
the import or export of an Appendix I species cannot be allowed if it
is for primarily commercial purposes. If plants are certified as
artificially propagated, however, international
[[Page 44594]]
shipment requires only export documents under CITES, and commercial
shipments may be allowed.
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 at the time a species is listed those activities that would
or would not constitute a violation of section 9 of the Act. The intent
of this policy is to increase public awareness of the effect of this
listing on proposed and ongoing activities within the species' range.
The Service believes the following actions would not be likely to
result in a violation of section 9:
(1) Activities authorized, funded, or carried out by Federal
agencies (e.g., grazing, ORV activity, mining) when such activity is
conducted in accordance with any reasonable and prudent measures given
by the Service in a consultation conducted under section 7 of the Act;
(2) Casual, dispersed human activities on foot (e.g., sight seeing,
photography, hiking).
The Service believes that the following activities would likely
result in a violation of section 9:
(1) Unauthorized collection and knowingly damaging Pediocactus
winkleri plants;
(2) Interstate or foreign commerce and import/export without
previously obtaining an appropriate permit. Permits to conduct
activities are available for purposes of scientific research and
enhancement of propagation or survival of the species.
(3) Use of herbicides or pesticides in violation of label
restrictions.
Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may
be likely to result from such activity. The Service does not consider
these lists to be exhaustive and provides them as information to the
public.
Anyone interested in determining whether a particular activity
would constitute a prohibited act under section 9(a)(2) should contact
the Service's Field Supervisor in Salt Lake City (see ADDRESSES
section).
National Environmental Policy Act
The Service has determined that Environmental Assessments and
Environmental Impact Statements, 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
Act. A notice outlining the Service's reasons for this determination
was published in the Federal Register on October 25, 1983 (49 FR
49244).
Paperwork Reduction Act
This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
clearance number 1018-0094. An agency may not conduct or sponsor, and a
person is not required to respond to a collection of information,
unless it displays a currently valid control number. For additional
information concerning permit and associated requirements for
threatened species, see 50 CFR 17.32.
References Cited
A complete list of all references cited herein is available upon
request from the Salt Lake City, Utah, Field Office (see ADDRESSES
section).
Authors
The primary author of this document is John L. England, botanist
(see ADDRESSES above).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
PART 17--[AMENDED]
Accordingly, the Service amends part 17, Subchapter B of Chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
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 Sec. 17.12(h) by adding the following, in alphabetical
order under FLOWERING PLANTS, to the List of Endangered and Threatened
Plants to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Pediocactus winkleri............. Winkler cactus...... U.S.A. (UT)........ Cactaceae.......... T 641 NA NA
* * * * * * *
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[[Page 44595]]
Dated: August 13, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-22448 Filed 8-19-98; 8:45 am]
BILLING CODE 4310-55-P