[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Rules and Regulations]
[Pages 28403-28413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13250]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE25


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Plant Eriogonum apricum (inclusive of vars. 
apricum and prostratum) (Ione Buckwheat) and Threatened Status for the 
Plant Arctostaphylos myrtifolia (Ione Manzanita)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We determine endangered status pursuant to the Endangered 
Species Act of 1973, as amended (Act), for Eriogonum apricum (inclusive 
of vars. apricum and prostratum) (Ione buckwheat). We also determine 
threatened status for Arctostaphylos myrtifolia (Ione manzanita). These 
two species occur primarily on soils derived from the Ione Formation in 
Amador and/or Calaveras counties in the central Sierra Nevada foothills 
of California and are imperiled by one or more of the following 
factors--mining, clearing of vegetation for agriculture and fire 
protection, disease, inadequate regulatory mechanisms, habitat 
fragmentation, residential and commercial development, changes in fire 
frequency, and continued erosion due to prior off-road vehicle use. 
Existing regulatory mechanisms do not adequately protect these species. 
Random events increase the risk to the few, small populations of E. 
apricum. This action implements the protection of the Act for these 
plants.

EFFECTIVE DATE: June 25, 1999.

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, Sacramento Field Office, 3310 El Camino Avenue, Suite 
130, Sacramento, California 95821-6340.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp (telephone 916/979-2120) 
and/or Jason Davis (telephone 916/979-2749), staff biologists at the 
above address (facsimile 916/979-2723).

SUPPLEMENTARY INFORMATION:

Background

    Arctostaphylos myrtifolia (Ione manzanita), Eriogonum apricum var. 
apricum (Ione buckwheat), and Eriogonum apricum var. prostratum (Irish 
Hill buckwheat) are found primarily in western Amador County, about 70 
kilometers (km) (43.5 miles (mi)) southeast of Sacramento in the 
central Sierra Nevada foothills of California. Most populations occur 
at elevations between 90 and 280 meters (m) (295 and 918 feet (ft)). A 
few isolated occurrences of A. myrtifolia occur in adjacent northern 
Calaveras County.
    Both species included in this rule occur primarily on ``Ione 
soils'' which have developed along a 40 mile stretch of the Ione 
Formation. The Ione Formation, comprised of a unique Tertiary Oxisol, 
consisting of fluvial (stream or river produced), estuarine, and 
shallow marine deposits (Bureau of Land Management (BLM) 1989), was 
developed under a subtropical or tropical climate during the Eocene 
(35-57 million years ago). The Ione soils in the area are coarse-
textured and exhibit soil properties typical of those produced under 
tropical climates such as high acidity, high aluminum content, and low 
fertility (Singer 1978). These soils and the sedimentary deposits with 
which they are associated also contain large amounts of commercially 
valuable minerals including quartz sands, kaolinitic (containing a 
hydrous silicate of aluminum) clays, lignite (low-grade coal), and 
possible gold-bearing gravels (Chapman and Bishop 1975). The nearest 
modern-day relatives to these soils occur in Hawaii and Puerto Rico 
(Singer 1978).
    The vegetation in the Ione area is distinctive enough to be 
designated as ``Ione chaparral'' in a classification of plant 
communities in California (Holland 1986). Stebbins (1993) characterized 
the Ione chaparral as an ecological island, which he defined as a 
relatively small area with particular climatic and ecological features 
that differ significantly from surrounding areas. This plant community 
occurs only on very acidic, nutrient-poor, coarse soils, and is 
comprised of low-growing, heath-like shrubs and scattered herbs 
(Holland 1986). The dominant shrub is Arctostaphylos myrtifolia, which 
is narrowly endemic to the area. Ione chaparral is restricted in 
distribution to the vicinity of Ione in Amador County, and a few local 
areas of adjacent northern Calaveras County where the community is 
estimated to cover 2,430 hectares (ha) (6,002 acres (ac)) (California 
Natural Diversity Database (CNDDB) 1997). The endemic plants that grow 
here are thought to do so because they can tolerate the acidic, 
nutrient-poor conditions of the soil which exclude other plant species. 
The climate of the area may be moderated by its location due east of 
the Golden Gate (Gankin and Major 1964, Roof 1982).

Discussion of the Two Species

    Charles Parry (1887) described Arctostaphylos myrtifolia based upon

[[Page 28404]]

material collected near Ione, California. Subsequent authors variously 
treated this taxon as Uva-ursi myrtifolia (Abrams 1914), A. nummularia 
var. myrtifolia (Jepson 1922), Schizococcus myrtifolius (Eastwood 1937, 
cited in Gankin and Major 1964), and Arctostaphylos uva-ursi ssp. 
myrtifolia (Roof 1982). Philip Wells (1993), in his treatment of 
California Arctostaphylos, maintained the species as A. myrtifolia.
    Arctostaphylos myrtifolia is an evergreen shrub of the heath family 
(Ericaceae) that lacks a basal burl. Attaining a height of generally 
less than 1.2 m (3.9 ft), plants appear low and spreading. The bark is 
red, smooth, and waxy. Olive green, narrowly elliptic leaves are 6 to 
15 millimeters (mm) (0.2 to 0.6 inches (in.)) long. Red scale-like 
inflorescence (flower cluster) bracts are 1 to 2 mm (0.04 to 0.08 in.) 
long. White or pinkish urn-shaped flowers appear from January to 
February. The fruit is cylindric. The species depends almost entirely 
on periodic fire events to promote seed germination (Wood and Parker 
1988). Arctostaphylos myrtifolia can be distinguished from other 
species in the same genus by its smaller stature and the color of its 
leaves.
    Arctostaphylos myrtifolia is reported from 17 occurrences (CNDDB 
1997). Because most of these occurrences are based on the collection 
localities of individual specimens, it is uncertain how many stands 
these 17 occurrences represent. Arctostaphylos myrtifolia may occur in 
about 100 individual stands which cover a total of about 404.7 ha 
(1,000 ac) (Roy Woodward, Bechtel, in litt. 1994). It occurs primarily 
on outcrops of the Ione Formation within an area of about 91 square 
(sq.) km (35 sq. mi) in Amador County. In addition, a few disjunct 
populations occur in Calaveras County. The populations range in 
elevation from 60 to 580 m (190 to 1900 ft), with the largest 
populations occurring at elevations between 90 and 280 m (280 and 900 
ft) (Wood and Parker 1988). Arctostaphylos myrtifolia is the dominant 
and characteristic species of Ione chaparral, where it occurs in pure 
stands. It also occurs in an ecotone (transition area between two 
adjacent ecological communities) with surrounding taller chaparral 
types, but it does not persist if it is shaded (R. Woodward, in litt. 
1994). Mining, disease, clearing of vegetation for agriculture and fire 
protection, habitat fragmentation, residential and commercial 
development, changes in fire frequency, and ongoing erosion threaten 
various populations of this plant (CNDDB 1997; Ed Bollinger, Acting 
Area Manager, BLM, Folsom Resource Area, in litt. 1994; M. Wood, in 
litt. 1994) and existing regulatory mechanisms do not adequately 
protect the species. The amount of A. myrtifolia habitat already lost 
to mining cannot be quantified because information regarding the total 
mineral production as well as the total acreage of land newly disturbed 
by a mining operation is proprietary (Maryann Showers, California 
Department of Mining and Geology, pers. comm. 1994). Although the exact 
area of habitat lost is unknown, a significant loss of habitat has 
occurred (Roof 1982; Stebbins 1993; Michael K. Wood, Botanical 
Consultant, in litt. 1994). Arctostaphylos myrtifolia occurs primarily 
on private or non-Federal lands. One occurrence on BLM land is within 
the Ione Manzanita Area of Critical Environmental Concern (ACEC). Two 
additional occurrences are partially on BLM lands. Four small, pure 
populations and several smaller, mixed populations also occur on the 
State-owned Apricum Hill Ecological Reserve managed by the California 
Department of Fish and Game (CDFG) (Wood and Parker 1988).
    Eriogonum apricum comprises two varieties--Eriogonum apricum var. 
apricum and E. apricum var. prostratum. Descriptions are provided below 
for each of the varieties.
    Howell (1955) described the species Eriogonum apricum (Ione 
buckwheat) in 1955 based on a specimen collected in the foothills of 
the Sierra Nevada near Ione, Amador County, California. Myatt (1970) 
described a variety of the Ione buckwheat, E. apricum var. prostratum 
(Irish Hill buckwheat) in 1970. According to the rules for botanical 
nomenclature, when a new variety is described in a species not 
previously divided into infraspecific taxa, an autonym (an 
automatically generated name) is created. In this case, the autonym is 
Eriogonum apricum var. apricum.
    Both varieties, Eriogonum apricum vars. apricum and prostratum, are 
perennial herbs in the buckwheat family (Polygonaceae). Eriogonum 
apricum var. apricum is glabrous (smooth, without hairs or glands) and 
grows upright to 8 to 20 centimeters (cm) (3 to 8 in.) in height. Its 
leaves are basal, round to oval, and 3 to 5 mm (0.1 to 0.2 in.) wide. 
The calyx (outer whorl of flower parts) is white with reddish midribs. 
Eriogonum apricum var. apricum flowers from July to October, and is 
restricted to nine occurrences occupying a total of approximately 4 ha 
(10 ac) (The Nature Conservancy (TNC) 1984) on otherwise barren 
outcrops within the Ione chaparral. Of the nine known occurrences of E. 
apricum var. apricum, one is partially protected by CDFG (CNDDB 1997). 
Eriogonum apricum var. apricum occurs primarily on private or non-
Federal land; BLM manages one occurrence. Mining, clearing of 
vegetation for agriculture and for fire protection, habitat 
fragmentation, increased residential development, and erosion variously 
threaten the occurrences of this plant. Existing regulatory mechanisms 
do not adequately protect this species.
    Eriogonum apricum var. prostratum has smaller leaves, a prostrate 
(low growing) habit, and an earlier flowering time than E. apricum var. 
apricum. The two known occurrences of E. apricum var. prostratum are 
restricted to otherwise barren outcrops on less than 0.4 ha (1 ac) in 
openings of Ione chaparral on private land. Mining, inadequate 
regulatory mechanisms, habitat fragmentation, erosion, and random 
events threaten the occurrences of this plant.

Previous Federal Action

    Federal government actions on both plants began as a result of 
section 12 of the Endangered Species Act of 1973, as amended (16 U.S.C. 
1531 et seq.), which directed the Secretary of the Smithsonian 
Institution to prepare a report on those plants considered to be 
endangered, threatened, or extinct in the United States. The 
Smithsonian Institution presented this report, designated as House 
Document No. 94-51, to Congress on January 9, 1975. The report included 
Arctostaphylos myrtifolia, Eriogonum apricum var. apricum and E. 
apricum var. prostratum as endangered species. We published a notice on 
July 1, 1975 (40 FR 27823), of our acceptance of the report of the 
Smithsonian Institution as a petition within the context of section 
4(c)(2) (petition provisions are now found in section 4(b)(3) of the 
Act) and our intention thereby to review the status of the plant taxa 
named therein. We included the above three taxa in the July 1, 1975, 
notice. On June 16, 1976, we published a proposal (41 FR 24523) to 
determine approximately 1,700 vascular plant species to be endangered 
species pursuant to section 4 of the Act. The list of 1,700 plant taxa 
was assembled on the basis of comments and data received by the 
Smithsonian Institution and us in response to House Document No. 94-51 
and the July 1, 1975, Federal Register publication. We included 
Arctostaphylos myrtifolia, E. apricum var. apricum, and E. apricum var. 
prostratum in our June 16, 1976, proposal.
    We summarized general comments we received in response to the 1976

[[Page 28405]]

proposal in an April 26, 1978, rule (43 FR 17909). The Endangered 
Species Act Amendments of 1978 required that we withdraw all proposals 
over 2 years old. The Act gave proposals already more than 2 years old 
a 1-year grace period. In a December 10, 1979, Federal Register notice 
(44 FR 70796), we withdrew our June 16, 1976, proposal, along with four 
other proposals that had expired.
    We published a notice of review for plants on December 15, 1980 (45 
FR 82480), that identified those plants currently being considered for 
listing as endangered or threatened. We included Arctostaphylos 
myrtifolia, E. apricum var. apricum, and E. apricum var. prostratum as 
category 1 candidates for Federal listing in this document. Category 1 
taxa were those taxa for which we had on file sufficient information on 
biological vulnerability and threats to support preparation of listing 
proposals but for which we are precluded from issuing proposed rules by 
higher priority listing actions. Our November 28, 1983, supplement to 
the notice of review (48 FR 53640) made no changes to the designation 
for these taxa.
    We revised the plant notice of review again on September 27, 1985 
(50 FR 39526), February 21, 1990 (55 FR 6184), and September 30, 1993 
(58 FR 51144). In these three notices, we again included Arctostaphylos 
myrtifolia, Eriogonum apricum var. apricum and E. apricum var. 
prostratum as category 1 candidates. In our February 28, 1996, combined 
animal and plant notice of review (61 FR 7596), we discontinued the 
designation of multiple categories of candidates, and only former 
category 1 species are now recognized as candidates for listing 
purposes. We included all three taxa as candidates in that notice.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on pending petitions within 12 months of their 
receipt. Under section 2(b)(1) of the 1982 amendments, all petitions 
pending on October 13, 1982, are treated as having been newly submitted 
on that date. This was the case for Arctostaphylos myrtifolia, 
Eriogonum apricum var. apricum and E. apricum var. prostratum, because 
we accepted the 1975 Smithsonian report as a petition. On October 13, 
1982, we found that the petitioned listing of these species was 
warranted, but precluded by other pending listing actions, in 
accordance with section 4(b)(3)(B)(iii) of the Act. We published a 
notice of this finding on January 20, 1984 (49 FR 2485). Such a finding 
requires recycling the petition, pursuant to section 4(b)(3)(C)(i) of 
the Act. We reviewed the finding annually in October of 1983 through 
1994.
    We published a proposal to list Eriogonum apricum (inclusive of 
vars. apricum and prostratum) as endangered and to list Arctostaphylos 
myrtifolia as threatened on June 25, 1997 (62 FR 34188). We based the 
proposal on information supplied by reports to the CNDDB, and 
observations and reports by numerous botanists.
    Processing of this final rule conforms with our Listing Priority 
Guidance for Fiscal Years 1998 and 1999, published on May 8, 1998 (63 
FR 25502). The guidance clarifies the order in which we will process 
rulemakings giving highest priority (Tier 1) to processing emergency 
rules to add species to the Lists of Endangered and Threatened Wildlife 
and Plants (Lists); second priority (Tier 2) to processing final rules 
to add species to the Lists, processing proposed rules 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 to designate critical habitat. Processing of this final 
rule is a Tier 2 action.
    We updated this rule to reflect any changes in distribution, 
status, and threats that occurred since publication of the proposed 
rule and to incorporate information obtained during the public comment 
period. This additional information did not alter our decision to list 
the two species.

Summary of Comments and Recommendations

    In the proposed rule published in the June 25, 1997, Federal 
Register (62 FR 34188), we requested all interested parties to submit 
factual reports or information that might contribute to the development 
of a final rule. The public comment period closed on August 25, 1997. 
We contacted appropriate State agencies, county and city governments, 
Federal agencies, scientific organizations, and other interested 
parties and requested comments. We published a newspaper notice in the 
Calaveras Enterprise on July 8, 1997, the Calaveras Prospect and 
Stockton Record on July 10, 1997, and in the Amador Ledger Dispatch on 
July 11, 1997, which invited general public comment.
    In accordance with interagency policy published on July 1, 1994 (59 
FR 34270), we solicited the expert opinions of three independent and 
appropriate specialists regarding pertinent scientific or commercial 
data and assumptions relating to the taxonomy, population status, and 
supportive biological and ecological information for the three proposed 
plants.
    Only one of the three requested reviewers provided comments. This 
reviewer supported the listing of both species addressed in this rule 
and commented specifically on Arctostaphylos myrtifolia. The reviewer 
wished to clarify any confusion that readers of the proposed rule may 
have had regarding the taxonomy of A. myrtifolia given the numerous 
name changes since 1887. The reviewer emphasized that this taxon is 
distinct and cannot be confused with any other manzanita. The numerous 
name changes stem from differing opinions among botanists regarding the 
relationship of this species to other California manzanitas.
    The reviewer stated that Arctostaphylos myrtifolia is adapted to 
periodic fire, more specifically, fire recurring probably every 5 to 20 
years. Recent suppression of the historic fire frequency has 
facilitated the establishment of fungal pathogens contributing to the 
demise of A. myrtifolia. The reviewer emphasized that the species could 
face serious decline in the future without proper fire management, that 
is, controlled burning during the appropriate time of the year and 
under proper climatic conditions. We incorporated the comments of the 
reviewer into the ``Summary of Factors Affecting the Species'' section 
of this rule.
    During the comment period, we received comments (i.e., letters, 
phone calls, and facsimiles) from a total of 16 individuals or agency 
or group representatives concerning the proposed rule. Some people 
submitted more than one comment to us. Seven commenters supported the 
listing, four commenters opposed the listing, and five commenters were 
neutral. One commenter stated his willingness to work with Amador 
County, larger landowners, including mine operators, and us to develop 
a habitat conservation plan for the long-term benefit of both species. 
We organized opposing comments and other comments questioning the 
proposed rule into specific issues. We summarized these issues and our 
response to each as follows:
    Issue 1: Several commenters questioned the adequacy and 
completeness of the scientific evidence reported in the proposed rule. 
Commenters stated that listing the two plants was premature due to the 
lack of

[[Page 28406]]

comprehensive and current science to support the listing.
    Service Response: In Accordance with the ``Interagency Cooperative 
Policy on Information Standards under the Endangered Species Act,'' 
published in the Federal Register on July 1, 1994 (59 FR 34271), we 
impartially review all scientific and other information to ensure that 
any information used to promulgate a regulation to add a species to the 
list of threatened and endangered species is reliable, credible, and 
represents the best scientific and commercial data available. We used 
information received from the CNDDB, knowledgeable botanists, and from 
studies specifically directed at gathering information on distribution 
and threats to the species addressed in this final rule. We received 
information from Federal, State, and local agencies, and consulted 
professional botanists during the preparation of the proposed rule. We 
documented destruction and loss of habitat and extirpation of 
populations of these two plants from a variety of causes. We sought 
comments on the proposed rule from Federal, State, and county entities, 
species experts, and other individuals. We have incorporated into the 
final rule all substantive new data received during the public comment 
period. Specific information received that supports listing the two 
plant species is summarized in the ``Summary of Factors Affecting the 
Species'' section.
    Issue 2: One commenter stated that the total extent of known 
populations of Eriogonum apricum as cited in the proposed rule is 
incorrect. This commenter further stated that there are 10 populations 
of E. apricum alone at the Irish Hill project site. Two commenters 
stated that several populations of E. apricum var. apricum have been 
discovered growing in Sacramento County, several miles north of the 
city of Ione, along the Amador/Sacramento County line.
    Service Response: Neither commenter provided site-specific 
information. We are aware of the 10 populations of E. apricum at the 
Irish Hill project site; we referred to these populations in the 
proposed rule as one occurrence in the ``Discussion of the Two 
Species'' section. An occurrence may have several populations within 
it. Because we have received only anecdotal reports of new locations, 
we cannot confirm or refute the reports of E. apricum var. apricum in 
Sacramento County. The discovery of new populations of E. apricum var. 
apricum in Sacramento County, north of the city of Ione, along the 
Amador/Sacramento County line, however, is consistent with a verified 
occurrence of this species within 1,000 m (3,280.8 ft) of the 
Sacramento County line northwest of the city of Carbondale on the Ione 
Formation. The Ione Formation occurs in Sacramento County within the 
general vicinity of the reported sighting. We believe that undocumented 
populations of E. apricum var. apricum likely occur within Sacramento 
County, but given the limited amount of potential habitat in Sacramento 
County, we do not believe that these potential occurrences represent a 
significant expansion of the overall range of the species, or that they 
warrant a change in the status of the species.
    Issue 3: Several commenters stated that Eriogonum apricum vars. 
apricum and prostratum and Arctostaphylos myrtifolia are not restricted 
to ``laterite'' (containing an iron-rich subsoil layer) soils as 
presented in the proposed rule. In addition, several commenters stated 
that the proposed rule inaccurately stated that the soil on which the 
two species grow was developed during the Eocene.
    Service Response: We received substantial evidence during the 
comment period to document that Eriogonum apricum vars. apricum and 
prostratum and Arctostaphylos myrtifolia occur on a much wider range of 
substrates than was thought at the time we prepared the proposed rule. 
However, none of this new information contradicts the claim that all 
three taxa occur predominantly on soils developed on various strata of 
the Ione Formation, or that the plants are restricted to a narrow range 
in western Amador County. The relationship between substrate and the 
distribution of these plants, however strong the correlation, is not 
the reason we proposed these plants for listing. The specific threats 
these taxa face are identified in the ``Summary of Factors Affecting 
the Species'' section.
    Issue 4: One commenter stated that the greatest potential threat to 
Eriogonum apricum is residential development. The commenter further 
stated that well-planned mining with reclamation plans that take E. 
apricum into account may be the best chance for the species' survival. 
Another commenter asserted that the statement in the proposed rule that 
the Ione buckwheat and Ione manzanita are imperiled by mining is an 
inaccurate statement. The same commenter also noted, however, that 
``because of requirements of species diversity and percent of 
vegetative cover on mined lands disturbed since 1976 . . . Ione 
manzanita and Ione buckwheat are not species that can be considered in 
new reclamation plans.''
    Service Response: We agree that residential development poses a 
significant long-term threat to these species given the substantial 
commercial and residential growth of nearby Sacramento. However, the 
more immediate threat to the Ione buckwheat and Ione manzanita is the 
continued extraction of mineral resources from soils that support these 
species. Ninety-five percent of all lands that support Eriogonum 
apricum and Arctostaphylos myrtifolia are in private ownership subject 
to ongoing and future mining activities. Mining operations are not 
required under State law to include locally native plants into their 
reclamation plans if these species are not compatible with the desired 
land use of the reclaimed site (e.g., grazing, water storage, or 
intensive agriculture). For a more detailed description of the threats 
these species face, see factors A and D in the ``Summary of Factors 
Affecting the Species'' section.
    Issue 5: A few commenters stated that there are good opportunities 
to reestablish Arctostaphylos myrtifolia on reclaimed mining areas when 
a natural seed source occurs nearby or through the spreading of seeds 
by mine operators.
    Service Response: We are unaware of any studies that document 
successful long-term reestablishment of Arctostaphylos myrtifolia 
populations on reclaimed mining areas. Mining operations in the Ione 
area typically remove the kaolinitic clay minerals and quartz sand that 
the species requires for long-term viability. Arctostaphylos myrtifolia 
has been shown to reestablish on fire breaks and similar situations 
where the original substrate was not removed, and plants have also 
established on waste rock piles. We are not aware of any scientific 
studies on the success of transplanting or seeding the plants under 
field conditions. Moreover, the long-term viability of the plants which 
have established on disturbed areas is unknown. Attempts to grow both 
Eriogonum apricum and Arctostaphylos myrtifolia off of their 
specialized substrate have been unsuccessful. Transplanted seedlings of 
E. apricum grew for only about 3 years before dying. Arctostaphylos 
myrtifolia seedlings have survived only about 10 years (Roger Raiche, 
Horticulturalist, Univ. of California Botanical Garden, Berkeley, in 
litt. 1997). For a more complete discussion on this topic, please see 
factors D and E in the ``Summary of Factors Affecting the Species'' 
section.

[[Page 28407]]

    Issue 6: Two commenters stated that there are adequate regulatory 
mechanisms to protect Eriogonum apricum vars. apricum and prostratum 
and Arctostaphylos myrtifolia. These commenters believe that, through 
compliance with the California Surface Mining and Reclamation Act 
(SMARA) and the California Environmental Quality Act (CEQA), Amador 
County has created ordinances and permitting procedures that adequately 
protect these species.
    Service Response: We believe that the existing regulatory 
mechanisms provided in the State, local, and county regulations are 
inadequate to protect these three plants. Both CEQA and SMARA can allow 
the destruction of these three plant taxa without adequate mitigation 
or avoidance. For a complete discussion on this topic, see factor D in 
the ``Summary of Factors Affecting the Species'' section and the 
``Available Conservation Measures'' section.
    Issue 7: One commenter stated that listing will inevitably move 
private property into government ownership. Another commenter 
questioned what sorts of activities could continue on private land 
should these species be formally listed.
    Service Response: The Act does not restrict the damage or 
destruction of listed plants due to otherwise lawful private activities 
on private land beyond any level of protection that may be provided 
under State law. Listing the two species as threatened or endangered 
will not regulate mining or land clearing for farming, grazing, or fire 
protection on private land with no Federal involvement. Other 
activities that do not violate the taking prohibitions of section 
9(a)(2) of the Act, along with prohibited activities, are discussed 
further in the ``Available Conservation Measures'' section. Those 
populations of plant species that occur on Federal lands may or may not 
be affected by some human activities. If a Federal agency makes the 
determination that an activity may affect a population of a listed 
plant species, the Federal agency is required to consult with us on the 
effects of the proposed action.
    Issue 8: One commenter questioned how landowners will know if their 
land uses will affect the three plants if critical habitat is not 
designated.
    Service Response: The public has access to general locational 
information on all three of these plants through the CNDDB. In 
addition, individuals owning land in these counties who believe that 
their actions or activities may result in harm to one of these plants 
may, if they desire to help conserve these species, contact us for 
technical assistance. We seek cooperation with private landowners on 
surveys or other conservation efforts. The complete file for this rule 
is available for public inspection, and does contain general 
information about where the species occur. We are always willing to 
assist the public in matters aimed at protecting sensitive species. See 
the ``Critical Habitat'' section for further discussion of our decision 
not to designate critical habitat for these species.
    Issue 9: One commenter inquired whether private landowners would be 
allowed to participate in the development of a recovery plan for these 
species.
    Service Response: The recovery planning process will involve 
species experts, scientists, and interested members of the public in 
accordance with the interagency policy on recovery plans under the Act, 
published on July 1, 1994 (59 FR 34272). The information and public 
education needs for successful recovery of these species are many, and 
we will address these needs in the recovery plan.
    Issue 10: One commenter stated that the proposed rule should be 
withdrawn because we lack the authority under the Commerce Clause of 
the Constitution to regulate species that are found solely in one State 
and are neither harvested for commercial purposes nor transported 
across state lines.
    Service Response: A recent decision in the United States Court of 
Appeals for the District of Columbia Circuit (National Association of 
Homebuilders v. Babbitt, 130 F. 3d 1041, D.C. Cir. 1997) makes it clear 
in its application of the test used in the United States Supreme Court 
case, United States v. Lopez, 514 U.S. 549 (1995), that regulation of 
species limited to one State under the Act is within Congress' commerce 
clause power. On June 22, 1998, the Supreme Court declined to accept an 
appeal of this case (118 S. Ct. 2340 1998). Therefore, our application 
of the Act to Arctostaphylos myrtifolia and Eriogonum apricum is 
constitutional.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, we have determined that Arctostaphylos myrtifolia should be 
classified as a threatened species and Eriogonum apricum (inclusive of 
vars. apricum and prostratum) should be classified as an endangered 
species. We followed the procedures found at section 4(a)(1) of the Act 
and regulations (50 CFR part 424) implementing the listing provisions 
of the Act. A species may be determined to be endangered or threatened 
due to one or more of the five factors described in section 4(a)(1). 
These factors and their application to Arctostaphylos myrtifolia C. 
Parry (Ione manzanita) and Eriogonum apricum J. Howell (inclusive of 
vars. apricum and prostratum R. Myatt) (Ione buckwheat) are as follows:

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

    Nearly all populations of both plant species occur on private or 
non-Federal land. The primary threat facing both species is the ongoing 
and threatened destruction and modification of their habitat by mining 
for silica sand, clay, lignite, common sand and gravel; and reclamation 
of mined lands involving establishment of vegetation with which these 
species cannot co-exist. A lesser degree of threat is posed by 
commercial or residential development, clearing for agriculture and 
fire protection, and continued erosion due to previous fireline 
construction and driver training for California Department of Forestry 
and Fire Protection (CDFFP) employees.
    The habitat of Arctostaphylos myrtifolia and Eriogonum apricum 
occurs in areas that contain valuable minerals. Clay mining began in 
the Ione area around 1860. Since that time, the Ione area has produced 
about a third of the fire clay in California (Chapman and Bishop 1975). 
Lignite, a low-grade coal, also has been mined in the Ione area since 
the early 1860s, initially for fuel, but more recently for wax used for 
industrial purposes. Chapman and Bishop (1975) reported the Ione 
lignites were the only lignites used commercially in the United States 
in the production of a specialized wax (montan wax). Quartz sand used 
in making glass containers, and laterite used for making cement also 
are commercially mined in the Ione area (Chapman and Bishop 1975). 
Common sands and gravels are also mined for various uses. Mining of all 
of these deposits has resulted in the direct removal of habitat for 
both plant species (Wood and Parker 1988; V. Thomas Parker, Professor 
of Biology, San Francisco State University, in litt. 1994; M. Wood, in 
litt. 1994). Strip mining of silica for glass and clay for ceramics and 
industrial filters has extirpated (caused extinction of) populations of 
A. myrtifolia north and south of Highway 88 (Roof 1982).
    By 1982, a significant amount of habitat already had been lost 
(Roof 1982, Stebbins 1993; M. Wood, in litt. 1994). The exact amount of 
habitat loss

[[Page 28408]]

to date cannot be quantified because much information regarding the 
total mineral production as well as the total acreage of land newly 
disturbed by a mining operation is proprietary (M. Showers, pers. comm. 
1994). Fifteen active surface mines on private land near Ione continue 
to remove the habitat of both plants; approved reclamation plans 
identify surface removal of greater than 1,400 ha (3,500 ac) (CDFG 
1991, Mining Reports 1976-1993; V.T. Parker, in litt. 1994; M. Wood, in 
litt. 1994). Based on an estimate derived from mining reports on file 
at California Department of Geology and Mines, over half of the Ione 
chaparral habitat, numerous stands of Arctostaphylos myrtifolia, and 
most of the occurrences of Eriogonum apricum occur within areas that 
will be impacted by the 15 mines (Mining Reports 1976-1993). Mining has 
eliminated several populations of A. myrtifolia south of Ione since 
1990 (V.T. Parker, in litt. 1994). If approved, the East Lambert 
Project, a proposed open pit to mine clay, lignite, and silica, would 
remove part of a population of A. myrtifolia. Clay mining threatens one 
of the two remaining occurrences of E. apricum var. prostratum (CDFG 
1991). The second occurrence is not protected and potentially could be 
mined (CDFG 1991). Most of the nine occurrences of E. apricum var. 
apricum occur on private land that is not protected and could be mined.
    As discussed in factor D of this section, mining results in 
conversion of former habitat to rangeland, pasture, and other 
agricultural uses; landowners do not restore the original plant 
community that was lost when the area was mined. Additionally, once the 
area is mined, the specialized substrate required by the plants may no 
longer be present. This type of disturbance permanently precludes 
restoration of habitat suitable for Arctostaphylos myrtifolia and 
Eriogonum apricum. To a lesser extent, land conversion to grazing and 
agriculture also has degraded or destroyed the habitat for these plants 
(Wood and Parker 1988; V.T. Parker, in litt. 1994; M. Wood, in litt. 
1994). Both activities continue to pose threats to the habitat of the 
subject plant taxa.
    Commercial and residential development also threatens the habitat 
of Arctostaphylos myrtifolia. In 1993, a 43 ha (106 ac) parcel in the 
city of Ione reported to have A. myrtifolia was cleared, presumably to 
facilitate future development (Randy L. Johnsen, Ione City 
Administrator, in litt. 1994). The Amador County master plan has zoned 
an area in the northern Ione chaparral near Carbondale for industrial 
uses. This area of about 75 ha (185 ac) is proposed to be developed 
over the next 10 years (Ron Mittlebrunn, Amador Council of Economic 
Development, pers. comm. 1994). Zoning for most lands outside the city 
of Ione permits a density of one house on 16 ha (40 ac) (Gary Clark, 
Amador County Planning Department, in litt. 1994). Habitat loss and 
degradation outside the city of Ione results from development of small 
ranchettes and associated clearing for fire protection, pastures, 
buildings, and infrastructure (G. Clark, in litt. 1994). Clearing 
destroys individual plants of both species and fragments and degrades 
the remaining habitat.
    Mining operations, land clearing for agriculture, and commercial 
and residential development, have fragmented and continue to fragment 
and isolate the habitat of Arctostaphylos myrtifolia in Amador County. 
Habitat fragmentation may disrupt natural ecosystem processes by 
changing the amount of incoming solar radiation, water, wind, and/or 
nutrients (Saunders et al. 1991), and further exacerbates the impacts 
of mining, off-road vehicle use, and other human activities.
    Training activities by the CDFFP caused the degradation of the 
population of Arctostaphylos myrtifolia occurring on the BLM Ione 
Manzanita ACEC. Building firelines and conducting driver training 
courses resulted in a criss-crossing of roads and trails within the 
ACEC that reduced and fragmented the habitat (BLM 1989). Although these 
practices were discontinued in 1991, the roads have not revegetated 
naturally, and continued erosion of the roads and adjacent habitat 
remains a concern (E. Bollinger, in litt. 1994). The BLM has requested 
our technical assistance regarding the restoration of A. myrtifolia to 
the ACEC (E. Bollinger, in litt. 1994).

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

    Overutilization is not currently known to be a factor for the two 
plants. However, increased publicity from the proposed and final 
listing rules may result in unrestricted collecting of Eriogonum 
apricum for scientific or horticultural purposes or excessive visits 
(and possibly trampling) by individuals interested in seeing rare 
plants.

C. Disease or Predation

    Livestock graze where one population of Eriogonum apricum var. 
prostratum occurs, but grazing is not considered as harmful (CNDDB 
1997). An unidentified fungal pathogen has caused major die-back of 
partial or entire stands of Arctostaphylos myrtifolia throughout its 
range (Wood and Parker 1988; M. Wood, in litt. 1994). The majority of 
populations of A. myrtifolia show signs of die-back. The fungal disease 
is a serious problem for the populations south of Ione (M. Wood, pers. 
comm. 1994). Stands along Highway 88 that were healthy a few years ago 
are apparently being killed with little evidence of seedling 
regeneration (Neil Havlik, Solano County Farmland and Open Space 
Foundation, pers. comm. 1994). The fungal problems are clearly due to 
senescence (extreme aging) of older individuals and pathogen loads that 
build up with crowding and accumulation of organic debris due to fire 
suppression (R. Raiche, in litt. 1997). To learn more about the 
management needs of A. myrtifolia, Wood and Parker conducted a series 
of controlled burns to test the regeneration of stands that had no, 
partial, and complete die-back. Stands that the fungus completely 
killed before burning did not regenerate. Healthy and partially 
affected stands regenerated, but study results did not determine 
whether this regeneration will result in healthy stands (M. Wood, in 
litt. 1994).

D. The Inadequacy of Existing Regulatory Mechanisms

    Eriogonum apricum vars. apricum and prostratum are listed as 
endangered under the California Endangered Species Act (CESA) (chapter 
1.5 section 2050 et seq. of the California Fish and Game Code and Title 
14 California Code of Regulations 670.2). Individuals are required to 
obtain a management authorization from CDFG to possess or ``take'' a 
listed species under the CESA. Although the ``take'' of State-listed 
plants is prohibited (California Native Plant Protection Act, chapter 
10 sec. 1908 and CESA, chapter 1.5 sec. 2080), State law exempts the 
taking of such plants via habitat modification or land use changes by 
the owner. This State law does not necessarily prohibit activities that 
could extirpate this species. After CDFG notifies a landowner that a 
State-listed plant grows on his or her property, State law requires 
only that the landowner notify the agency ``at least 10 days in advance 
of changing the land use to allow salvage of such a plant'' (Native 
Plant Protection Act, chapter 10 sec. 1913). Ten days may not allow 
adequate time for agencies to coordinate the salvage of the plants. 
Moreover, salvage is an outdated and biologically inappropriate 
mitigation that is inconsistent with measures implemented through 
section 7 of the Act. California Senate Bill 879,

[[Page 28409]]

passed in 1997 and effective January 1, 1998, requires individuals to 
obtain a section 2081(b) permit from CDFG to take a listed species 
incidental to otherwise lawful activities, and requires full mitigation 
of all impacts and successful implementation of all measures feasible. 
The ability of these requirements to protect species has not been 
tested, and we will need several years to evaluate their effectiveness 
in conserving species.
    The California Environmental Quality Act of the California Public 
Resources Code (chapter 2 sec. 21050 et seq.) requires a full 
disclosure of the potential environmental impacts of proposed projects. 
The public agency with primary authority or jurisdiction over the 
project is designated as the lead agency and is responsible for 
conducting a review of the project and consulting with the other 
agencies concerned with the resources affected by the project. Section 
15065 of the CEQA guidelines, now undergoing amendment, requires a 
finding of significance if a project has the potential to ``reduce the 
number or restrict the range of a rare or endangered plant or animal.'' 
Species that are eligible for listing as rare, threatened, or 
endangered are given the same protection as species officially listed 
under the State or Federal governments. Once significant effects are 
identified, the lead agency has the option of requiring mitigation for 
effects through changes in the project or deciding that overriding 
considerations make mitigation infeasible. In the latter case, the 
State may approve projects that cause significant environmental damage, 
such as the destruction of State-listed endangered species. The 
protection of Eriogonum apricum var. apricum, E. apricum var. 
prostratum, and Arctostaphylos myrtifolia under CEQA is, therefore, 
dependent upon the discretion of the lead agency.
    Section 21080(b) of CEQA allows certain projects to be exempted 
from the CEQA process. The State may approve or carry out ministerial 
projects, those projects that the public agency must approve after the 
applicant shows compliance with certain legal requirements, without 
undertaking CEQA review. Examples of ministerial projects include final 
subdivision map approval and most building permits (Bass and Herson 
1994). In addition, recent proposed revisions to CEQA guidelines, if 
made final, may weaken protection for threatened, endangered, and other 
sensitive species.
    The California Surface and Mining Reclamation Act (SMARA) of 1975 
(California Public Resources Code chapter 9 sec. 2710 et seq.) requires 
preventing or minimizing adverse environmental effects and reclaiming 
mined lands to a useable condition that is readily adaptable for 
alternative land uses. Although SMARA requires reclamation for mining 
activities, the standards for reclamation and the success of any 
revegetation is judged on the approved end use of the land. Approved 
examples of these end uses for mining activities within the Ione area 
include water storage for irrigation, grazing, rangeland, seeding with 
grasses for pasture, and intensive agriculture (Mining Reports 1976-
1993). SMARA does not require replacement of the same vegetation type, 
species, or percentage of vegetation cover as the habitat that is lost. 
No approved mining reclamation plans included measures to attempt 
restoration of either Arctostaphylos myrtifolia or Eriogonum apricum or 
the Ione chaparral plant community, although one plan indicated an 
intention to allow A. myrtifolia, known to occur on the site, to re-
establish itself (Mining Reports 1976-1993). We received a description 
of a reclamation project during the public comment period on the 
proposed rule (Mike Kizer, Ione Minerals & Refractories, in litt. 
1997). An area previously stripped of all soil, vegetation, and 
overburden is contoured to a 3:1 slope. All vegetation growing on 
another area where A. myrtifolia is growing is crushed with a 
bulldozer. The crushed vegetation and soil is scraped and spread 
directly on the newly established slope. The site is then seeded with a 
mixture of non-native legumes and grasses and fertilized and limed. 
Mulch is then applied for erosion control. Based on this description of 
what is presumably a typical reclamation project, we maintain that land 
reclamation under SMARA establishes only a goal of revegetation of the 
site without regard to the original species composition and structure, 
not restoration of the original plant community that was lost when the 
area was mined. Even though such efforts may result in the 
reestablishment of A. myrtifolia on reclaimed sites, they are 
inadequate to meet the purpose of the Act, as stated in section 2(b), 
to ``provide a means whereby the ecosystems upon which endangered 
species and threatened species depend may be conserved.'' Moreover, 
SMARA does not apply to many activities, including the prospecting or 
extraction of minerals for commercial purposes, or the removal of 
material that lies above or between natural mineral deposits in amounts 
less than 764.6 cubic m (1,000 cubic yards) in any location of 0.4 ha 
(1 ac) or less.
    In addition, SMARA is also inadequate for protection of these 
species because reclamation plans are required to be submitted only for 
operations conducted after January 1, 1976. Surface mining operations 
that were permitted or authorized prior to January 1, 1976, are not 
required to submit reclamation plans as long as no substantial changes 
are made in their operation. The lead agency is responsible for 
determining what constitutes a substantial change in operation.
    Although the city of Ione General Plan and the Environmental Impact 
Report of the Banks annexation to the city of Ione includes the 
protection of Arctostaphylos myrtifolia and Eriogonum apricum as a 
goal, the City has no regulatory mechanism to stop land clearing and/or 
preserve natural habitat (R. Johnsen, in litt. 1994). The County of 
Amador has taken steps toward protecting rare plants that grow along 
Ione area roadsides through the designation of surveyed sites as 
Environmentally Sensitive Areas. The California Department of 
Transportation (Caltrans) has also designated a segment of State Route 
88 near Ione as a Botanical Management Area (Hartwell 1997). Caltrans 
manages this segment to encourage regrowth of native plants that grow 
on the highway right-of-way (Hartwell 1997).
    Two preserves support occurrences of Arctostaphylos myrtifolia and 
Eriogonum apricum var. apricum. The Apricum Hill Ecological Reserve, 
managed by the CDFG, is about 15.2 ha (37.5 ac). The Ione Manzanita 
ACEC, managed by BLM, covers 35 ha (86 ac). Both preserves provide some 
protection of three occurrences of A. myrtifolia and one occurrence of 
E. apricum var. apricum; however, they are small sites and subject to 
edge effects such as shading by taller shrubs or competition with 
invasive vegetation (see factors A and E of this section for more 
detail).

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The effects on Arctostaphylos myrtifolia of changing the frequency 
of occurrence of fire have not been well-studied. Arctostaphylos 
myrtifolia lacks the ability to crown sprout and is killed outright by 
fire. It must, therefore, reproduce by seed. Roof (1982) and Woodward 
(in litt. 1994) reported abundant post-fire seed germination. Woodward 
also reported successful reestablishment of the species on ground 
scraped by tractors during a fire suppression operation. The response 
of

[[Page 28410]]

A. myrtifolia to fire appears, however, to be irregular and 
unpredictable (Wood and Parker 1988).
    Wood reports fire suppression results in stand die-off without 
regeneration (M. Wood, in litt. 1994). Scientists have observed mature 
individuals in well-established, undisturbed natural stands die. The 
species appears to have a low regenerative potential in closed stands 
(Wood and Parker 1988). Individual plants are thought to live not much 
longer than 50 years (Gankin and Major 1964). Individuals maintained in 
cultivation for many years have died suddenly for no apparent reason 
(S. Edwards, cited in Wood and Parker 1988).
    Fire, therefore, appears to be necessary for the long-term 
maintenance of the Ione chaparral community. Controlled burning may be 
a viable means of ensuring adequate reproduction of Arctostaphylos 
myrtifolia, or perhaps even controlling or preventing loss due to the 
fungal pathogen (V.T. Parker, in litt. 1994; M. Wood, in litt. 1994). 
Field observations and controlled experiments to date, however, suggest 
exercising caution in the use of fire until the reasons for the 
variability in the response of A. myrtifolia are better understood. 
Progress toward better understanding of the response of A. myrtifolia 
to fire was thwarted when long term study sites established to study 
this response were graded and cleared by the landowner (V.T. Parker, in 
litt. 1994; M. Wood, in litt. 1994).
    Reestablishment on mined areas may be difficult for the Ione 
chaparral plant community in general, and for Arctostaphylos myrtifolia 
in particular, due to a lack of the required specialized substrate and 
an absence of proven propagation methods (E. Bollinger, in litt. 1994). 
Researchers have attempted a variety of germination and seed bank 
experiments on A. myrtifolia without success (Wood and Parker 1988). 
Others have also attempted to cultivate the species with little or no 
success (R. Gankin, cited in Wood and Parker 1988). Although the plant 
has a limited capacity to root from its lower branches, Roof (1982) 
reported that he was unaware of even a single plant that had been grown 
or cultivated from a rooted branch. The only report of successful 
cultivation indicates that the plant requires high soil-acidity and 
heavy supplements of soluble aluminum (Roof 1982).
    Throughout its range, on habitat edges where better soil 
development occurs, Arctostaphylos myrtifolia is being out-competed by 
other native vegetation (M. Wood, pers. comm. 1994; R. Woodward, in 
litt. 1994). Arctostaphylos viscida (white-leaf manzanita), a more 
rapidly growing, taller manzanita, encroaches along the edge of stands 
of A. myrtifolia. Arctostaphylos myrtifolia is eliminated when A. 
viscida grows tall enough to shade it (M. Wood, pers. comm. 1994; R. 
Woodward, in litt. 1994). This is not likely to be a significant threat 
to the species, however, because most stands occur on substrates from 
which taller shrubs are excluded.
    As discussed in factor A, habitat fragmentation may alter the 
physical environment. Plant species may disappear from chaparral 
fragments that are from 10 to 100 ha (24.7 to 247 ac) in size due to 
persistent disturbance and potentially due to change in fire frequency 
(Soule et al. 1992). In addition, habitat fragmentation increases the 
risks of extinction due to random environmental, demographic, or 
genetic events (Soule et al. 1992). The two, small, isolated 
populations of Eriogonum apricum var. prostratum, makes random 
extinction more likely. Chance events, such as disease outbreaks, 
reproductive failure, extended drought, landslides, or a combination of 
several such events, could destroy part of a single population or 
entire populations. A local catastrophe also could decrease a 
population to so few individuals that the risk of extirpation due to 
genetic and demographic problems inherent to small populations would 
increase.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by these species in making this final determination. Eriogonum 
apricum (inclusive of vars. apricum and prostratum) is verified from 11 
occurrences on approximately 4.4 ha (11 ac) in Amador County, 
California. The species is endangered by mining, clearing of vegetation 
for agriculture and for fire protection, inadequate regulatory 
mechanisms, habitat fragmentation, residential and commercial 
development, ongoing erosion, and random events. Eriogonum apricum is 
in danger of extinction throughout all or a significant portion of its 
range and the preferred action is, therefore, to list it as endangered. 
Arctostaphylos myrtifolia is reported from 17 sites, and estimated to 
occur in a total of about 100 stands covering about 404.7 ha (1,000 ac) 
in Amador County, with a few occurrences in Calaveras County. It is 
threatened by mining, disease, clearing of vegetation for agriculture 
and for fire protection, inadequate regulatory mechanisms, habitat 
fragmentation, increased residential development, and changes in fire 
frequency. Although A. myrtifolia faces many of the same threats as E. 
apricum, the significantly wider range and greater number of 
populations and individuals of A. myrtifolia moderate the threats. 
Thus, A. myrtifolia is not now in danger of extinction throughout a 
significant portion of its range, as is E. apricum, but is likely to 
become endangered within the foreseeable future. Therefore, the 
preferred action is to list A. myrtifolia as threatened.

Critical Habitat

    Section 3 of the Act defines critical habitat as: (i) the specific 
areas within the geographical area occupied by a species, at the time 
it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management consideration 
or protection; and (ii) specific areas outside the geographical area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation,'' as it is defined in section 3(3) of the Act, means 
the use of all methods and procedures needed to bring the species to 
the point at which listing under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The 
regulations (50 CFR 424.12(a)(2)) state that designation of critical 
habitat is not determinable when one or both of the following 
situations exist--(1) information sufficient to perform required 
analysis of the impacts of the designation is lacking, or (2) the 
biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat. The regulations 
(50 CFR 424.12(a)(1)) state that designation of critical habitat is not 
prudent when one or both of the following situations exist--(1) the 
species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species.
    We find that designation of critical habitat is not prudent for 
Arctostaphylos myrtifolia and Eriogonum apricum, because of increased 
degree of threat to each species and lack of benefit. The detriment to 
the species outweighs any

[[Page 28411]]

benefit that such designation may provide. The reasons for not 
designating critical habitat for these species is discussed below.
    All three occurrences of Arctostaphylos myrtifolia on Federal lands 
are managed by the BLM; one of these occurrences lies within the Ione 
Manzanita ACEC. On Federal lands, modification of occupied habitat by 
any action authorized by the BLM is unlikely to occur without 
consultation under section 7 of the Act because BLM managers are well-
aware of the presence and locations of A. myrtifolia (BLM 1989; E. 
Bollinger, in litt. 1994). Establishment of the ACEC indicates that the 
BLM will give the protection of the rare plant community on this parcel 
the highest priority in all management decisions (E. Bollinger, in 
litt. 1994). The BLM prohibits grazing in the ACEC, and has implemented 
erosion control measures on an off-road vehicle course previously used 
by CDFFP. In addition, the BLM has functionally withdrawn the ACEC and 
other habitats known to be occupied by the species from mineral entry 
(E. Bollinger, in litt. 1994; Al Franklin, Botanist, BLM, Folsom 
Resource Area, pers. comm. 1998) and has developed a management plan 
for the ACEC (BLM 1989). The BLM has also authorized experimental 
transplantation studies on the ACEC (Garland 1997). We believe, 
therefore, that designation of critical habitat on Federal land would 
confer no additional benefit to the species beyond that which is 
already afforded by current management.
    Arctostaphylos myrtifolia faces human-caused threats (see factors A 
and E in ``Summary of Factors Affecting the Species'' section) and 
occurs predominately on private lands. Vandalism of A. myrtifolia has 
already occurred. A 43-hectare (106-acre) parcel of land previously 
identified in a public document as occupied habitat for this species 
was cleared in 1993, presumably to facilitate future development (R. 
Johnsen, in litt. 1994). A second incident of vandalism occurred in 
July 1997 shortly after the proposed listing rule was published in the 
Federal Register (Garland 1997). In this second incident, unknown 
vandals destroyed a scientific propagation study plot for A. myrtifolia 
on lands managed by the BLM.
    Eriogonum apricum is known from only 11 verified populations 
covering an estimated total of 4.5 ha (11 ac) of habitat. Eriogonum 
apricum occurs in the same general area and on similar substrates as 
Arctostaphylos myrtifolia which has been vandalized as described above. 
Because of its few populations, E. apricum is especially vulnerable to 
impacts from loss of individuals or habitat damage due to vandalism.
    The publication of precise maps and descriptions of critical 
habitat in the Federal Register, as required for the designation of 
critical habitat, however, would further increase the degree of threat 
to these species from vandalism and could contribute to their decline 
by making locational information readily available. Critical habitat 
designation requires publication of proposed and final rules in the 
Federal Register including both maps and specific descriptions of 
critical habitat using reference points and lines that can be matched 
to standard topographic maps of the area (see 16 U.S.C. 
1533(b)(5)(A)(I) and (6)(A); 50 CFR 424.12(c), 424.16(a) and 
424.18(a)). Once published in the Federal Register, proposed and final 
rules are readily available over the Internet, where complete copies, 
including maps, may be downloaded. The Act also requires us to publish 
a notice of any critical habitat proposal in a newspaper of general 
circulation and hold a public hearing upon request (16 U.S.C. 
1533(b)(5)(D) and (E)). While the listing process provides the public 
with general information about the habitat of a species and where a 
species might occur in general terms, critical habitat designation 
makes more specific locational information readily available to any 
would-be vandal.
    We find, therefore, that the increased degree of threat to 
Arctostaphylos myrtifolia and Eriogonum apricum from vandalism and 
habitat destruction outweigh any benefits that might derive from the 
designation of critical habitat.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by Federal, State, local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires development of 
recovery plans for all listed species. We discuss the protection 
required of Federal agencies and the prohibitions against certain 
activities involving listed plants below.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing or result in destruction or adverse 
modification of proposed critical habitat. If we subsequently list a 
species, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with us.
    Almost all of the occurrences for both species are on private land. 
Three occurrences of Arctostaphylos myrtifolia and one occurrence of 
Eriogonum apricum var. apricum exist entirely or partially on Federal 
land managed by the BLM. Other potential Federal involvement includes 
the construction and maintenance of roads and highways by the Federal 
Highway Administration (two populations of E. apricum var. apricum 
occur along rights-of-way owned by Caltrans).
    Listing these two plant species would provide for development of a 
recovery plan (or plans) for them. Such plan(s) would bring together 
both State and Federal efforts for conservation of the plants. The 
plan(s) would establish a framework for agencies to coordinate 
activities and cooperate with each other in conservation efforts. The 
plan(s) would set recovery priorities and estimate costs of various 
tasks necessary to accomplish them. It also would describe site-
specific management actions necessary to achieve conservation and 
survival of the two plants. Additionally, pursuant to section 6 of the 
Act, we would be more likely to grant funds to affected States for 
management actions promoting the protection and recovery of these 
species.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered or 
threatened plants. All prohibitions of section 9(a)(2) of the Act, 
implemented by 50 CFR 17.61 for endangered plants and 17.71 for 
threatened plants, apply. These prohibitions, in part, make it illegal 
for any person subject to the jurisdiction of the United States to 
import or export, transport in interstate or foreign commerce in the 
course of a commercial activity, sell or offer for sale in interstate 
or foreign commerce, or remove and

[[Page 28412]]

reduce the species to possession from areas under Federal jurisdiction. 
In addition, for plants listed as endangered, the Act prohibits 
malicious damage or destruction on areas under Federal jurisdiction, 
and the removal, cutting, digging up, or damaging or destroying of such 
plants in knowing violation of any State law or regulation, including 
state criminal trespass law. Section 4(d) of the Act allows for the 
provision of such protection to threatened species through regulation. 
This protection may apply to Arctostaphylos myrtifolia in the future if 
regulations are promulgated. Seeds from cultivated specimens of 
threatened plants are exempt from these prohibitions provided that 
their containers are marked ``Of Cultivated Origin'' on the shipping 
containers. Certain exceptions to the prohibitions apply to our agents 
and agents of State conservation agencies.
    It is our policy (59 FR 34272) to identify to the maximum extent 
practicable at the time a species is listed those activities that would 
or would not constitute a violation of section 9 of the Act. The intent 
of this policy is to increase public awareness of the effect of the 
listing on proposed and ongoing activities within a species' range. 
Less than five percent of the occurrences of the two species occur on 
public (Federal) lands. Collection, damage, or destruction of these 
species on Federal lands is prohibited, although in appropriate cases a 
Federal endangered species permit may be issued to allow collection for 
scientific or recovery purposes. Such activities on non-Federal lands 
would constitute a violation of section 9 when conducted in knowing 
violation of California State law or regulations or in violation of 
State criminal trespass law.
    Activities that are unlikely to violate section 9 include light to 
moderate livestock grazing, clearing a defensible space for fire 
protection around one's personal residence, and landscaping (including 
irrigation) around one's personal residence. Direct questions regarding 
whether specific activities will constitute a violation of section 9 to 
the Field Supervisor of the Sacramento Field Office (see ADDRESSES 
section).
    The Act and 50 CFR 17.62 (for endangered plants) and 17.72 (for 
threatened plants) also provide for the issuance of permits to carry 
out otherwise prohibited activities involving endangered or threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival or the 
species. For threatened plants, permits also are available for 
botanical or horticultural exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act. It is anticipated 
that few trade permits would ever be sought or issued for 
Arctostaphylos myrtifolia and Eriogonum apricum, because these species 
are not common in cultivation or in the wild. You can obtain copies of 
the regulations regarding listed species and inquire about prohibitions 
and permits by contacting the U.S. Fish and Wildlife Service, 
Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon 
97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

National Environmental Policy Act

    We have 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. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 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 
endangered and threatened plants, see 50 CFR 17.62 and 17.72.

References Cited

    A complete list of all references cited herein is available upon 
request from the Field Supervisor, Sacramento Field Office (see 
ADDRESSES section).
    Author. The primary authors of this final rule are Kirsten Tarp and 
Jason Davis, Sacramento Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulations Promulgation

    For the reasons given in the preamble, we amend 50 CFR part 17 as 
set forth below:

PART 17--[AMENDED]

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

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

    2. In Sec. 17.12(h) add the following to the List of Endangered and 
Threatened Plants in alphabetical order under ``FLOWERING PLANTS:''


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
 
                   *                  *                  *                  *                  *                  *                  *
Arctostaphylos myrtifolia........  Ione manzanita......  U.S.A. (CA)........  Ericaceae--Heath...  T                       661           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
Eriogonum apricum................  Ione buckwheat        U.S.A. (CA)........  Polygonaceae--Buckw  E                       661           NA           NA
                                    (=Irish Hill                               heat.
                                    buckwheat).

[[Page 28413]]

 
(inclusive of vars. apricum and
 prostratum).
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: April 16, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-13250 Filed 5-25-99; 8:45 am]
BILLING CODE 4310-55-P