[Federal Register Volume 65, Number 17 (Wednesday, January 26, 2000)]
[Rules and Regulations]
[Pages 4156-4162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1827]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE23


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for Two Larkspurs From Coastal Northern California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
endangered status pursuant to the Endangered Species Act (Act) of 1973, 
as amended for two plants--Delphinium bakeri (Baker's larkspur) and 
Delphinium luteum (yellow larkspur). These species grow in a variety of 
habitats including coastal prairie, coastal scrub, or chaparral in 
Sonoma and Marin Counties in northern California. Habitat loss and 
degradation, sheep grazing, road maintenance activities, and 
overcollection imperil the continued existence of these plants. Random 
events increase the risk of extinction to the extremely small plant 
populations. This rule implements the Federal protection and recovery 
provisions afforded by the Act for these two species.

EFFECTIVE DATE: February 25, 2000.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Room W2606, Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp, Sacramento Fish and 
Wildlife Office (see ADDRESSES section) (telephone 916/414-6464; 
facsimile 916/414-6486).

SUPPLEMENTARY INFORMATION:

Background

    Delphinium bakeri (Baker's larkspur) and D. luteum (yellow 
larkspur) were found historically in coastal prairie, coastal scrub, or 
chaparral habitats. Urban development, agricultural land conversion, 
and livestock grazing have destroyed much of the habitat and extirpated 
numerous populations of these two plants in coastal Marin and Sonoma 
Counties in northern California. The historical range of Delphinium 
bakeri and D. luteum did not extend beyond coastal Marin and Sonoma 
Counties.
    Ewan (1942) described Delphinium bakeri based on type material 
collected by Milo Baker in 1939 from Coleman Valley, Sonoma County, 
California. In the most recent treatment, Warnock (1993) retained the 
taxon as a full species. Historically, D. bakeri was known from Coleman 
Valley in Sonoma County and from a site near Tomales in Marin County. 
Delphinium bakeri occurs on decomposed shale within the coastal scrub 
plant community from 120 to 150 meters (m) (400 to 500 feet (ft)) in 
elevation (California Natural Diversity Database (CNDDB) 1997).
    Delphinium bakeri is a perennial herb in the buttercup family 
(Ranunculaceae) that grows from a thickened, tuber-like, fleshy cluster 
of roots. The stems are hollow, erect, and grow to 65 centimeters (cm) 
(26 inches (in)) tall. The shallowly five-parted leaves occur primarily 
along the upper third of the stem and are green at the time the plant 
flowers. The flowers are irregularly shaped. The five sepals (outer 
most whorl or set of floral parts) are conspicuous, bright dark blue or 
purplish, with the rear sepal elongated into a spur. The inconspicuous 
petals occur in two pairs. The lower pair is oblong and blue-purple; 
the upper pair is oblique and white. Seeds are produced in several dry, 
many-seeded fruits, which split open at maturity on only one side 
(i.e., several follicles). Delphinium bakeri flowers from April through 
May (Warnock 1993).
    Habitat conversion, grazing, and/or roadside maintenance activities 
have extirpated occurrences of Delphinium bakeri in Marin and Sonoma 
Counties (California Department of Fish and Game (CDFG) 1994). The CDFG 
(1994) also reported the species is declining. The only known remaining 
population, with a total of about 35 plants, is found on a steep road 
bank on private and county land in Marin County that is threatened by 
road work, overcollection, and sheep grazing. Because of its extreme 
range restriction and small population size, the plant is also 
vulnerable to extinction from random natural events, such as fire or 
insect outbreaks (CNDDB 1997).
    Heller (1903) described Delphinium luteum based on type material 
collected from ``grassy slopes about rocks, near Bodega Bay, along the 
road leading to the village of Bodega'' in Sonoma County. Although 
Jepson (1970) reduced D. luteum to a variety of D. nudicaule, it is 
currently recognized as a full species (Warnock 1993). Delphinium 
luteum occurs on rocky areas within coastal scrub plant community, 
including areas with active rock slides, from sea level to 100 m (300 
ft) in elevation (Guerrant 1976).
    Delphinium luteum is a perennial herb in the buttercup family 
(Ranunculaceae) that grows from fibrous roots to 56 cm (22 in) tall. 
The leaves are mostly basal, fleshy, and green at the time of 
flowering. The flowers are cornucopia-shaped. The five conspicuous 
sepals are bright yellow, with the posterior sepal elongated into a 
spur. The inconspicuous petals occur in two pairs. The upper petals are 
narrow and unlobed; the lower petals are oblong to ovate. The fruit is 
a follicle. Delphinium luteum flowers from March to May.
    Never widely distributed, historical populations of Delphinium 
luteum have been partially or entirely extirpated by rock quarrying 
activities, overcollecting, residential development, and sheep grazing, 
resulting in the species now being even more narrowly distributed 
(Guerrant 1976; CNDDB 1998; Betty Guggolz, Milo Baker Chapter, 
California Native Plant Society (CNPS), pers. comm. 1995). The CDFG 
(1994) reported the species is declining. The two remaining populations 
near Bodega, both on private land, total fewer than 50 plants. 
Development, overcollection, and sheep grazing threaten the remaining 
two populations. Because of its extreme range restriction and small 
population size, the plant is also vulnerable to extinction from random 
natural events, such as fire or insect outbreaks (CNDDB 1998; B. 
Guggolz, pers. comm. 1995).

Previous Federal Action

    Federal Government actions on the two species began as a result of 
section 12 of the Act (16 U.S.C. 1531 et seq.), which directed the 
Secretary of the Smithsonian Institution to prepare a report on those 
plants considered to be endangered, threatened, or extinct in the 
United States. This report, designated as House Document No. 94-51, was 
presented to Congress on January 9, 1975, and included Delphinium 
bakeri and D. luteum as endangered. 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 to review the status of the plant taxa named in the 
report. The above two taxa were included in the

[[Page 4157]]

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. D. bakeri and 
D. luteum were included in this Federal Register document.
    General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, notice (43 FR 17909). The Act 
Amendments of 1978 required that all proposals over two years old be 
withdrawn. A one-year grace period was given to those proposals already 
more than two years old. In the December 10, 1979, notice (44 FR 
70796), we published a notice of withdrawal of the June 6, 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). This notice included Delphinium bakeri and D. luteum as 
category 1 candidates for Federal listing. Category 1 taxa were those 
for which we had on file substantial information on biological 
vulnerability and threats to support preparation of listing proposals. 
On November 28, 1983, we published a supplement to the Notice of Review 
(48 FR 53640). This supplement changed D. bakeri and D. luteum from 
category 1 to category 2 candidates. Category 2 taxa were those for 
which data in our possession indicated listing was possibly 
appropriate, but for which substantial data on biological vulnerability 
and threats were not currently known or on file to support proposed 
rules.
    The plant notice was revised on September 27, 1985 (50 FR 39526). 
Delphinium bakeri and D. luteum were again included as category 2 
candidates. Another revision of the plant notice was published on 
February 21, 1990 (55 FR 6184). In this revision D. bakeri and D. 
luteum were included as category 1 candidates. We made no changes to 
the status of the two species in the plant notice published on 
September 30, 1993 (58 FR 51144). On February 28, 1996, we published a 
Notice of Review in the Federal Register (61 FR 7596) that discontinued 
the use of candidate categories and considered the former category 1 
candidates as simply ``candidates'' for listing purposes. Both species 
were included as candidates in the February 28, 1996, Notice of Review.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
certain findings on pending petitions within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further requires that 
all petitions pending on October 13, 1982, be treated as having been 
newly submitted on that date. This provision applied to Delphinium 
bakeri and D. luteum, because the 1975 Smithsonian report had been 
accepted 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; notification of this finding was published 
on January 20, 1984 (49 FR 2485). Such a finding requires the petition 
to be recycled, pursuant to section 4(b)(3)(C)(i) of the Act. The 
finding was reviewed annually in October of 1983 through 1994, and we 
published a proposed rule on June 19, 1997 (62 FR 33383).
    The processing of this final rule conforms with our Listing 
Priority Guidance published in the Federal Register on October 22, 1999 
(64 FR 57114). The guidance clarifies the order in which we will 
process rulemakings. Highest priority is processing emergency listing 
rules for any species determined to face a significant and imminent 
risk to its well-being (Priority 1). Second priority (Priority 2) is 
processing final determinations on proposed additions to the lists of 
endangered and threatened wildlife and plants. Third priority is 
processing new proposals to add species to the lists. The processing of 
administrative petition findings (petitions filed under section 4 of 
the Act) is the fourth priority. The processing of critical habitat 
determinations (prudency and determinability decisions) and proposed or 
final designations of critical habitat will no longer be subject to 
prioritization under the Listing Priority Guidance. This final rule is 
a Priority 2 action and is being completed in accordance with the 
current Listing Priority Guidance.
    We have updated this rule to reflect any changes in distribution, 
status, and threats since publishing the proposed rule and to 
incorporate information obtained through the public comment period. 
This additional information did not alter our decision to list these 
species.

Summary of Comments and Recommendations

    In the June 19, 1997, proposed rule (62 FR 33383) and associated 
notifications, we requested all interested parties to submit factual 
reports or information that might contribute to development of a final 
rule. A 60-day comment period closed on August 18, 1997. We contacted 
appropriate Federal and State agencies, county and city governments, 
scientific organizations, and other interested parties and requested 
comments. We sent copies of the proposed rule and the request for 
comments letter to seven local libraries for public display. We 
published newspaper notices in the Press Democrat and Marin Independent 
Journal on June 25, 1997; Sonoma County Independent on June 26, 1997; 
and Petaluma Argus Courier on June 27, 1997, which invited general 
public comment.
    During the public comment period, we received written comments from 
five individuals or agencies. Three commenters expressed support for 
the listing proposal, and two commenters opposed the proposal. 
Supporting comments were received from the CNPS and two individuals 
from Washington State University. The two commenters from Washington 
State University sent a letter informing us of their research on the 
genetic variation in Delphinium luteum. Opposing comments were received 
by the Washington Legal Foundation and the Marin Farm Bureau. Opposing 
comments and other comments questioning the proposed rule were 
organized into specific issues. These issues and our response to each 
are summarized below.
    Issue 1: One commenter stated that the Service should not list 
Delphinium bakeri and D. luteum because it has no authority to list or 
regulate species under the Act that are not involved in interstate 
commerce. This commenter further believed that Federal listing for D. 
bakeri and D. luteum is unnecessary since it would not confer greater 
protection than California State law already provides for these 
indigenous plants.
    Our Response: The Federal Government has the authority under the 
Commerce Clause of the U.S. Constitution to protect these species, for 
the reasons given in Judge Wald's opinion and Judge Henderson's 
concurring opinion in National Association of Home Builders v. Babbitt, 
130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S.Ct. 2340 (1998). 
That case involved a challenge to application of the Act's prohibitions 
to protect the listed Delhi Sands flower-loving fly (Rhapimodas 
terminatus abdominalis). As with Delphinum bakeri and D. luteum, the 
Delhi Sands flower-loving fly is endemic to only one State. Judge Wald 
held that application of the Act's prohibition against taking of 
endangered species to this fly was a proper exercise of Commerce Clause 
power to regulate:

[[Page 4158]]

(1) use of channels of interstate commerce; and (2) activities 
substantially affecting interstate commerce, because it prevented loss 
of biodiversity and destructive interstate competition. Judge Henderson 
upheld protection of the fly because doing so prevents harm to the 
ecosystem upon which interstate commerce depends and because doing so 
regulates commercial development that is part of interstate commerce.
    Issue 2: One commenter urged us not to list Delphinium bakeri and 
D. luteum, stating that ``the listing of the two larkspurs violates the 
Principles of Federalism,'' and that ``California has ample resources 
to regulate and protect these two larkspur species,'' and (therefore) 
``should be able to make its own decisions regarding these plants found 
within its own border.'' The commenter further stated that this listing 
has significant impacts on the rights of private property owners to 
make reasonable use of their property.
    Our Response: As we stated in the proposed rule (62 FR 33383), 
existing State and local regulations are inadequate to protect these 
species. The Act does not prevent the State of California from 
protecting and regulating the two larkspur species. Federal and State 
regulations complement each other. As discussed further in Factor D of 
the ``Summary of Factors Affecting the Species'' section of this final 
rule, the California Environmental Quality Act (CEQA) and California 
Endangered Species Act (CESA) apply to actions on private and State 
lands. For plants, the Federal Endangered Species Act primarily covers 
Federal land and Federal actions that may affect proposed and listed 
species.
    The listing of plants under the Federal Endangered Species Act does 
not necessarily restrict any uses of private land unless Federal 
funding, authorization, or a permit is involved. For example, such 
private land uses as proper livestock grazing, clearing a defensible 
space for fire protection around one's personal residence, landscaping 
(including irrigation), or fence maintenance are not affected by 
Federal listing of plants. If an activity is conducted, authorized, or 
funded by a Federal agency, the Federal action agency must consult with 
us when the activity may affect listed species.
    Issue 3: One commenter was concerned that once an endangered 
species is listed, the designation of critical habitat under the Act 
would result in a taking of land. This commenter further stated that 
the ``take'' provision as applied to the two larkspurs will have a 
dramatic and disruptive impact on local land use and planning.
    Our Response: As discussed in the ``Critical Habitat'' section of 
this final rule, a critical habitat determination is not being made at 
this time for these plants. The ``take'' prohibition, as defined in 
section 9 of the Act, generally does not apply to plants (except when 
such take is prohibited by state law or occurs in the course of a 
violation of state criminal trespass law).
    Issue 4: One commenter said that we should consider the adverse 
economic effect that the listing would have on the local agriculture 
industry.
    Our Response: Under section 4(b)(1)(A) of the Act, a listing 
determination must be based solely on the best scientific and 
commercial data available. The legislative history of this provision 
clearly states the intent of Congress to ``ensure'' that listing 
decisions are ``based solely on biological criteria and to prevent non-
biological considerations from affecting such decisions,'' H.R. Rep. 
No. 97-835, 97th Cong., 2nd Sess. 19 (1982). As further stated in the 
legislative history, ``applying economic criteria * * * to any phase of 
the species listing process is applying economics to the determinations 
made under section 4 of the Act and is specifically rejected by the 
inclusion of the word `solely' in the legislation,'' H.R. Rep. No. 97-
835, 97th Cong. 2nd Sess. 19 (1982). Because we are precluded from 
considering economic impacts in a final decision to list a species, we 
cannot examine such impacts.
    Issue 5: One commenter stated that the plants are in existence 
because of agriculture and not the opposite.
    Our Response: As discussed under Factor A of the ``Summary of 
Factors Affecting the Species'' section of this final rule, historical 
habitat of Delphinium bakeri was eliminated by agricultural conversion. 
The discussion under Factor C explains that both species are limited in 
their range, have few individuals, and are extremely vulnerable to 
trampling.

Peer Review

    In accordance with interagency peer review policy published on July 
1, 1994 (59 FR 34270), we solicited the expert opinions of three 
independent specialists regarding pertinent scientific or commercial 
data and assumptions relating to the taxonomy, population status, and 
supportive biological and ecological information for the taxon under 
consideration for listing. The purpose of such review is to ensure that 
listing decisions are based on scientifically sound data, assumptions, 
and analyses, including input of appropriate experts and specialists. 
The three requested reviewers concurred with the accuracy of the rule 
and supported listing these taxa. Information provided was incorporated 
and is presented in the final rule.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) that 
implement the listing provisions of the Act established the procedures 
for adding species to the Federal lists. A species may be determined to 
be an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1). These factors and their 
application to Delphinium bakeri Ewan (Baker's larkspur) and Delphinium 
luteum Heller (yellow larkspur) are as follows:
    A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range. Of the two remaining populations 
of Delphinium luteum, one located at an old rock quarry site near 
Bodega has been partially destroyed and fragmented by historical quarry 
activities. The number of plants remaining at this site continues to 
decline. Population numbers were between 100 to 200 plants in 1978 (Ed 
Guerrant, Berry Botanic Garden, pers. comm. 1995), but recent counts 
indicate that only 30 to 40 individuals remain (B. Guggolz, pers. comm. 
1995). The other extant site has fewer than 10 remaining individuals. A 
historical site near the town of Graton was converted to residential 
uses by 1987 (CNDDB 1997).
    Historically, habitat of Delphinium bakeri was eliminated by 
agricultural conversion to grainfields (Ewan 1942). Remaining habitat 
may be threatened by sheep grazing (CNDDB 1997). One extirpated 
population was subjected to sheep grazing, but it is unknown if grazing 
was the primary cause of its demise. The few remaining individuals 
(approximately 35) are extremely vulnerable to impacts that otherwise 
might not be significant. Threats to the lone remaining site of D. 
bakeri are discussed under factors B through E. At the rock quarry site 
near Bodega Bay, the Bodega Harbor landowners association is proposing 
to build an equipment storage shed and a public trail that would be 
close to the remaining plants. Although the proposed storage equipment 
shed would be located on degraded habitat and would have no direct 
impact on the extant population of D. luteum, the public trail would be 
located adjacent to

[[Page 4159]]

the population. The proximity of the trail to the plants would increase 
the threat from collection (see factor B). Urban development, and its 
associated recreational activities, continue to threaten the remaining 
population of D. luteum (B. Guggolz, pers. comm. 1995). Although the 
project proponents have been notified that construction of the shed and 
trail may be detrimental to D. luteum, we understand that the project 
remains proposed as is.
    B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes. Overutilization is a threat for both species. In 
1992, all the follicles (a single-celled cavity that acts like a many-
seeded fruit, which upon drying splits open to release seeds) were 
collected from the plants at the only known site of Delphinium bakeri 
(CDFG 1993). Because these follicles contained the plants' seeds, all 
sexual reproduction for 1992 was lost. Were this collection to occur 
regularly or in conjunction with unrelated natural events (e.g., fire), 
the species may be lost. Due to its distinctive yellow flowers, which 
is uncommon for larkspurs, D. luteum is of considerable horticultural 
interest. Collecting is thought to have extirpated at least one 
occurrence of D. luteum located southwest of Tomales (CNDDB 1997). 
Additionally, some of the historical decline to D. luteum can be 
attributed to collecting. Delphinium luteum was offered for purchase in 
horticultural trade journals during the 1940's and 1950's (Michael 
Warnock, Sam Houston University, pers. comm. 1994). Plants can still be 
procured from a local nursery, although their seed source is not from 
the wild. Garden-grown seed is also available through an international 
garden society (NARGS 1998). Both populations of D. luteum are near 
residential areas, about 30 m (100 ft) from the nearest house, and are 
subject to collecting. Unrestricted collecting for scientific or 
horticultural purposes or excessive visits by individuals interested in 
seeing rare plants could result from increased publicity as a result of 
this rulemaking.
    C. Disease or Predation. Most Delphinium species are toxic to 
cattle but not sheep. Ewan (1942) noted that Delphinium bakeri did not 
appear to be poisonous to livestock. However, its toxicity has not been 
tested. Sheep grazing may threaten the plant (CNDDB 1997). One 
extirpated population was subjected to grazing, but it is unknown if 
grazing was the primary cause of its demise. The few remaining 
individuals (approximately 35) are extremely vulnerable to impacts that 
otherwise might not be significant. Although D. luteum has persisted at 
two sites with sheep grazing for many decades, because of the very low 
number of individuals in the population, any loss of flowers and/or 
seeds could significantly reduce chances for the long-term survival of 
this species (see Factor E).
    D. The Inadequacy of Existing Regulatory Mechanisms. The California 
Fish and Game Commission (CFGC) listed Delphinium bakeri and Delphinium 
luteum as rare species in 1979 under the California Native Plant 
Protection Act (CNPPA) (Div. 2 Ch. 10, Section 1900 et seq. of the Fish 
and Game Code). Although the ``take'' of State-listed plants is 
generally prohibited under CNPPA (See Sec. 1908), the extent of 
protection for State-listed plants has been a matter of some 
uncertainty. CNPPA limits the State's ability to regulate or prohibit 
the take of plants during agricultural operations, timber harvesting, 
or mining assessment work, or removal of plants from certain facilities 
and right-of-way [see Sec. 1913 (a) and (b)]. Under another provision 
of CNPPA, landowners in some circumstances can remove plants after 
providing CDFG at least 10 days advance notice [see Sec. 1913(c)]. The 
scope of these exceptions to CNPPA take prohibition, and consequently 
to the protection for plants, are unsettled and suspect. State 
designation as a rare, threatened, or endangered species under the 
CNPPA does provide for consideration of impacts by State agencies under 
CEQA, described below.
    The CEQA (chapter 2 section 21050 et seq. of the California Public 
Resources Code) requires a full disclosure of the potential 
environmental impacts of proposed projects. The public agency with 
primary authority or jurisdiction over the project is designated as the 
lead agency and is responsible for conducting a review of the project 
and consulting with the other agencies concerned with the resources 
affected by the project. Section 15065 of the CEQA Guidelines requires 
a mandatory finding of significance if a project has the potential to 
``reduce the number or restrict the range of a rare, threatened, or 
endangered plant or animal.'' Species that can be shown to meet the 
criteria for State listing and have been designated as rare, 
threatened, or endangered, such as D. bakeri and D. luteum, must be 
considered under CEQA guidelines (CEQA Section 15380). Once significant 
effects are identified, the lead agency has the option to require 
mitigation for effects through changes in the project or to decide that 
overriding considerations make mitigation infeasible. In a case that 
the lead agency decides that overriding considerations make mitigation 
infeasible, projects may be approved that cause significant 
environmental damage, such as destruction of State-listed species. 
Protection of listed species through CEQA is therefore dependent upon 
the discretion of the agency involved. In addition, revisions to CEQA 
guidelines have been proposed which, if implemented, may weaken 
protections for State-listed, rare, threatened, and endangered species.
    E. Other Natural or Manmade Factors Affecting Its Continued 
Existence. The remaining population of Delphinium luteum at the rock 
quarry may be threatened by users of a trail associated with the 
extension of an existing golf course into the current county scenic 
easement that exists on the site (B. Guggolz, pers. comm. 1995). This 
easement is not a conservation easement with us but may offer some 
limited, incidental protection to the species in terms of controlling 
development to protect the viewshed. However, the trail's close 
proximity to the remaining populations of D. luteum may increase the 
amount of collection of the species by people using the trail.
    The remaining population of Delphinium bakeri occurs on a steep 
road bank that is adjacent to a county road in Marin County. Some 
potential exists for herbicide spraying and road maintenance activities 
that could be detrimental to this species due to the extremely low 
number of individuals that remain. The degree of threat that these 
activities pose to the remaining population of D. bakeri is uncertain 
at this time.
    Because few populations and/or individuals remain, both Delphinium 
bakeri and D. luteum are likely threatened by genetic drift (random 
change in particular gene frequency that may lead to preservation or 
extinction of certain genes and an overall reduction of genetic 
variability). D. bakeri has 1 population consisting of 35 plants. 
Delphinium luteum has 2 populations, totaling fewer than 50 plants. 
Small populations often are subject to increased genetic drift and 
inbreeding as consequences of their small populations (Ellstrand and 
Elam 1993). A loss of genetic variability, and consequent reduction in 
genetic fitness, provides less opportunity for a species to 
successfully adapt to environmental change (Ellstrand and Elam 1993).
    The combination of few populations, small number of individuals 
found within each population, narrow range, and restricted habitat make 
these two plant species susceptible to destruction

[[Page 4160]]

of all or a significant part of any population from random natural 
events, such as fire, drought, disease, or other natural occurrences 
(Shaffer 1981; Primack 1993). Random events causing population 
fluctuations or even population extirpations are not usually a concern 
until the number of individuals or geographic distribution become as 
limited as they have for both Delphinium bakeri and D. luteum (Primack 
1993). Once a plant population becomes significantly reduced due to 
habitat destruction and fragmentation, the remnant population has a 
greater probability of extinction from random events.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by these species in determining this final rule. Habitat loss and 
degradation, sheep grazing, inadequate regulatory mechanisms, naturally 
occurring events, small plant populations, road maintenance activities, 
and overcollection imperil the continued existence of these plants. 
Delphinium bakeri has 1 population with a total of 35 plants. 
Delphinium luteum has 2 small populations with a total of fewer than 50 
plants. Both plant species are in danger of extinction throughout all 
of their range, and the preferred action is therefore to list D. bakeri 
and D. luteum as endangered. Other alternatives to this action were 
considered but not preferred because not listing or listing as 
threatened would not be consistent with the Act.

Critical Habitat

    Critical habitat is defined in section 3, paragraph (5)(A) of the 
Act as 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 essential to the 
conservation of the species and which may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    In the proposed rule, we indicated that designation of critical 
habitat was not prudent for Delphinium bakeri and D. luteum because of 
a concern that publication of precise maps and descriptions of critical 
habitat in the Federal Register could increase the vulnerability of 
this species to incidents of collection and vandalism. We also 
indicated that designation of critical habitat was not prudent because 
we believed it would not provide any additional benefit beyond that 
provided through listing as endangered.
    In the last few years, a series of court decisions have overturned 
Service determinations regarding a variety of species that designation 
of critical habitat would not be prudent (e.g., Natural Resources 
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th 
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d 
1280 (D. Hawaii 1998)). Based on the standards applied in those 
judicial opinions, we have reexamined the question of whether critical 
habitat for Delphinium bakeri and D. luteum would be prudent.
    Due to the small number of populations both Delphinium bakeri and 
D. luteum are vulnerable to unrestricted collection, vandalism, or 
other disturbance. We remain concerned that these threats might be 
exacerbated by the publication of critical habitat maps and further 
dissemination of locational information. However, we have examined the 
evidence available for Delphinium bakeri and D. luteum and have not 
found specific evidence of taking, vandalism, collection, or trade of 
either species or any similarly situated species. Consequently, 
consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and 
recent case law, we do not expect that the identification of critical 
habitat will increase the degree of threat to this species of taking or 
other human activity.
    In the absence of a finding that critical habitat would increase 
threats to a species, if there are any benefits to critical habitat 
designation, then a prudent finding is warranted. In the case of this 
species, there may be some benefits to designation of critical habitat. 
The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat. While a critical 
habitat designation for habitat currently occupied by this species 
would not be likely to change the section 7 consultation outcome 
because an action that destroys or adversely modifies such critical 
habitat would also be likely to result in jeopardy to the species, 
there may be instances where section 7 consultation would be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. There may also be some educational or informational 
benefits to designating critical habitat. Therefore, we find that 
critical habitat is prudent for both Delphinium bakeri and D. luteum.
    The Final Listing Priority Guidance for FY 2000 (64 FR 57114) 
states, ``The processing of critical habitat determinations (prudency 
and determinability decisions) and proposed or final designations of 
critical habitat will no longer be subject to prioritization under the 
Listing Priority Guidance. Critical habitat determinations, which were 
previously included in final listing rules published in the Federal 
Register, may now be processed separately, in which case stand-alone 
critical habitat determinations will be published as notices in the 
Federal Register. We will undertake critical habitat determinations and 
designations during FY 2000 as allowed by our funding allocation for 
that year.'' As explained in detail in the Listing Priority Guidance, 
our listing budget is currently insufficient to allow us to immediately 
complete all of the listing actions required by the Act. Deferral of 
the critical habitat designation for Delphinium bakeri and D. luteum 
has allowed us to concentrate our limited resources on higher priority 
critical habitat (including court ordered designations) and other 
listing actions, while allowing us to put in place protections needed 
for the conservation of Delphinium bakeri and D. luteum without further 
delay. However, because we have successfully reduced, although not 
eliminated, the backlog of other listing actions, we anticipate in FY 
2000 and beyond giving higher priority to critical habitat designation, 
including designations deferred pursuant to the Listing Priority 
Guidance, such as the designation for this species, than we have in 
recent fiscal years.
    We plan to employ a priority system for deciding which outstanding 
critical habitat designations should be addressed first. We will focus 
our efforts on those designations that will provide the most 
conservation benefit, taking into consideration the efficacy of 
critical habitat designation in addressing the threats to the species, 
and the magnitude and immediacy of those threats. We will develop a 
proposal to designate critical habitat for both Delphinium bakeri and 
D. luteum as soon as feasible, considering our workload priorities. 
Unfortunately, for the immediate future, most of Region 1's listing 
budget must be directed to complying with numerous court orders

[[Page 4161]]

and settlement agreements, as well as due and overdue final listing 
determinations (like the one at issue in this case).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. 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 State and requires 
that recovery actions be carried out for all listed species. The 
protection required of Federal agencies and the prohibitions against 
certain activities involving listed plants are discussed, in part, 
below.
    Section 7(a) of the Act 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 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. If a species is listed subsequently, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency must enter into 
formal consultation with us. None of the populations of either species 
occur on Federal land. Although one of the populations occurs adjacent 
to a county road, we believe it is unlikely that any activities would 
occur that involve the use of Federal Highway funds. We anticipate few 
if any section 7 consultations for either species.
    Listing these two plants 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. The plan(s) 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 able to grant funds to the State of California 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 
plants. All prohibitions of section 9(a)(2) of the Act, implemented by 
50 CFR 17.61 for endangered plants, apply. These prohibitions, in part, 
make it illegal for any person subject to the jurisdiction of the 
United States to import or export, transport in interstate or foreign 
commerce in the course of a commercial activity, sell or offer for sale 
in interstate or foreign commerce, or remove and reduce to possession 
from areas under Federal jurisdiction any such plant. In addition, 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, or in the course of a violation of State criminal trespass 
law. Certain exceptions to the prohibitions apply to our agents and 
State conservation agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plant species. Such permits are available for scientific 
purposes and to enhance the propagation or survival of the species. We 
anticipate that few trade permits would ever be sought or issued for 
the two species because they are not common in cultivation or in the 
wild.
    As published in the Federal Register on July 1, 1994 (59 FR 34272), 
our policy 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.
    We believe that, based upon the best available information, the 
following actions will not likely result in a violation of section 9, 
provided these activities are carried out in accordance with existing 
regulations and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., livestock grazing, agricultural conversions, wetland 
and riparian habitat modification, flood and erosion control, 
residential development, recreational trail development, road 
construction, hazardous material containment and cleanup activities, 
prescribed burns, pesticide/herbicide application, pipelines or utility 
lines crossing suitable habitat) when such activity is conducted in 
accordance with consultation conducted under section 7 of the Act;
    (2) Residential landscape maintenance (including irrigation) and 
the clearing of vegetation around one's personal residence as a 
firebreak.
    We believe that the following actions could result in a violation 
of section 9; however, possible violations are not limited to these 
actions alone:
    (1) Unauthorized collecting of the species on Federal lands; and
    (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.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Sacramento Fish and Wildlife Office (see ADDRESSES section).
    Requests for copies of the regulations regarding listed species and 
inquiries regarding prohibitions and permits may be addressed to the 
U.S. Fish and Wildlife Service, Endangered Species Permits, 911 N.E. 
11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063, 
facsimile 503/231-6243).

National Environmental Policy Act

    We have determined that an environmental assessment, as defined 
under the authority of the National Environmental Policy Act of 1969, 
need not be prepared in connection with regulations adopted pursuant to 
section 4(a) of the Act, as amended. 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 collections of information that 
require Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An information 
collection related to the rule pertaining to permits for endangered and 
threatened species has OMB approval and is assigned clearance number 
1018-0094. This rule does not alter that information collection

[[Page 4162]]

requirement. For additional information concerning permits and 
associated requirements for endangered plants, see 50 CFR 17.62 and 
17.63.

References Cited

    A complete list of all references in this document is available 
upon request from the Field Supervisor, Sacramento Fish and Wildlife 
Office (see ADDRESSES section).
    Author: The primary author of this final rule is Kirsten Tarp, U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see 
ADDRESSES section); telephone 916/414-6464.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    For the reasons given in the preamble, we amend part 17, subchapter 
B of chapter I, title 50 of the Code of Federal Regulations, as set 
forth below:

PART 17--[AMENDED]

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

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

    2. Amend Sec. 17.12(h) by adding the following, in alphabetical 
order under FLOWERING PLANTS, to the List of Endangered and Threatened 
Plants:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Delphinium bakeri................  Baker's larkspur....  U.S.A. (CA)........  Ranunculaceae......  E                       681           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
Delphinium luteum................  Yellow larkspur.....  U.S.A. (CA)........  Ranunculaceae......  E                       681           NA           NA
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: December 15, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 00-1827 Filed 1-25-00; 8:45 am]
BILLING CODE 4310-55-P