[Federal Register Volume 66, Number 195 (Tuesday, October 9, 2001)]
[Notices]
[Pages 51445-51452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24660]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

RIN 1018--AH32


Endangered and Threatened Wildlife and Plants; Determination That 
Designation of Critical Habitat Is Not Prudent for the Rock Gnome 
Lichen

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
reconsidered whether designating critical habitat for the rock gnome 
lichen (Gymnoderma lineare) would be prudent. We have again determined 
that such a designation would not be prudent. The rock gnome lichen was 
listed as an endangered species under the Endangered Species Act of 
1973, as amended (Act), on January 18, 1995. At the time the plant was 
listed, we determined that the designation of critical habitat was not 
prudent because designation would increase the degree of threat to the 
species and/or would not benefit the species.
    We determine that the designation of critical habitat is not 
prudent for the rock gnome lichen because it would likely increase the 
threat from collection, vandalism, or habitat degradation and 
destruction, both direct and inadvertent.
    We have revised the proposed finding to incorporate or address 
comments and new information received during the comment period.

DATES: The finding announced in this document was made on September 27, 
2001.

ADDRESSES: The complete file for this finding is available for public 
inspection, by appointment, during normal business hours at the 
Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa 
Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Brian P. Cole, State Supervisor, (828) 
258-3939, Ext. 223.

SUPPLEMENTARY INFORMATION:  

Background

Taxonomy and Description

    Gymnoderma lineare, first described by Evans (1947) as Cladonia 
linearis from material collected in Tennessee, is a squamulose (scale-
like) lichen in the reindeer moss family. This species is the only 
member of its genus occurring in North America (Yoshimura and Sharp 
1968). Gymnoderma was considered a monotypic genus for over a century, 
until its revision by Yoshimura and Sharp (1968). These authors 
reclassified Evans' (1947) Cladonia linearis as Gymnoderma lineare on 
the basis of its short and solid podetia (hollow upright structures) 
that lack symbiotic algae (algae that live cooperatively with a 
fungus). Gymnoderma lineare occurs in rather dense colonies of narrow 
straps (squamules). The only similar lichens are the squamulose species 
of the genus Cladonia. Gymnoderma lineare has terminal portions of the 
straplike individual lobes that are blue-grey on the upper surface and 
generally shiny-white on the lower surface; near the base they grade to 
black (unlike squamulose Cladonia, which are never blackened toward the 
base) (Weakley 1988, Hale 1979). Hale's (1979) description of the 
species reads as follows: ``Squamules dark greenish mineral grey; lower 
surface white to brownish toward the tips, weakly corticated; podetia 
lacking but small clustered apothecia common on low tips.'' Weakley 
(1988) further describes the species as having squamules about 1 
millimeter (mm) (0.04 inches [in]) across near the tip, tapering to the 
blackened base, sparingly branched, and generally about 1 to 2 
centimeters (cm) (0.39 to 0.79 in) long (though they can be longer or 
shorter, depending on environmental factors). The squamules are nearly 
parallel to the rock surface, but the tips curl away from the rock, 
approaching or reaching a perpendicular orientation to the rock 
surface. The fruiting bodies (apothecia) are borne at the tips of the 
squamules and are black (contrasting to the brown or red apothecia of 
Cladonia spp.) (Weakley 1988). The apothecia are borne singly or in 
clusters, usually at the tips of the squamules but occasionally along 
the sides; these have been found from July through September (Evans 
1947, North Carolina Natural Heritage Program records 1991). The 
apothecia are either sessile or borne on short podetia 1 to 2 mm (0.04 
to 0.08 in) in height, and the largest of these have a diameter of 
about 1 mm (0.04 in), with most being much smaller. The apothecia are 
cylindrical in shape and radial in symmetry (Evans 1947). The primary 
means of propagation of this lichen appears to be asexual, with 
colonies spreading clonally.

Distribution, Habitat, and Life History

    Gymnoderma lineare (Evans) Yoshimura and Sharp is endemic (native 
to a particular region) to the southern Appalachian Mountains of North 
Carolina, Tennessee, South Carolina, and Georgia, where it occurs only 
in areas of high humidity, either on high-elevation cliffs that are 
frequently bathed in fog or in deep river gorges at lower elevations. 
It is primarily limited to vertical rock faces, where seepage water 
from forest soils above flows at (and only at) very wet times, and 
large stream-side boulders, where it receives a moderate amount of 
light but not high-intensity solar radiation. It is almost always found 
growing with the moss Andreaea in these vertical intermittent seeps. 
This association makes it rather easy to search for, due to the 
distinctive reddish-brown color of Andreaea that can be observed from a 
considerable distance (Weakley 1988). Most populations occur above 
1,524 meters (5,000 feet) elevation. In Tennessee, it is apparently 
limited to the Great Smoky Mountains National Park (Park) and one other 
mountain on the North Carolina/Tennessee State line. Very little 
specific information is known about the life history and population 
biology of the rock gnome lichen. Other common species found growing 
with or near this species include Huperzia selago, Stereocaulon sp., 
Scirpus cespitosus, Carex misera, Rhododendron spp., Saxifraga 
michauxii, Krigia montana, Heuchera villosa, Geum radiatum, and 
sometimes Juncus trifidus. The high-elevation coniferous forests 
adjacent to the rock outcrops and cliffs most often occupied by the 
species are dominated by red spruce (Picea rubens) and Fraser fir 
(Abies fraseri).
    Forty populations of Gymnoderma lineare have been reported 
historically; thirty-five remain in existence. The remaining 
populations are in Mitchell (two), Jackson (five), Yancey (four), Swain 
(one), Transylvania (four), Buncombe (four), Avery (two), Ashe (two), 
Haywood (one) and Rutherford (one) Counties, North Carolina; Greenville 
County (one), South Carolina; Rabun County (one), Georgia; and Sevier 
(seven) and Carter (part of this population is on the State line with 
Mitchell County, North Carolina) Counties, Tennessee.

Threats

    Five populations of rock gnome lichen are known to have been 
completely extirpated. The reasons for the disappearance of the species 
at most of these sites are undocumented; however, one population is 
believed to

[[Page 51446]]

have been destroyed by highway construction. The explanation for the 
disappearance of the other four is a mystery. Among the other 
populations that still survive, one has been vandalized, and portions 
of two others are known to have been illegally collected. Although 
these acts of vandalism and collection did not completely eliminate the 
species at those latter sites, they did seriously reduce the population 
sizes and may well have adversely affected the species' chances of 
long-term survival at those places. Most of the formerly occupied sites 
are subjected to heavy recreational use by hikers, climbers, and 
sightseers, which can be highly destructive to the fragile plant 
communities that occupy vertical rock faces.
    The majority of the high-elevation spruce-fir forests of the 
Southeast have suffered extensive changes and declines in extent or 
vigor during the past century as a result of several factors, including 
site deterioration due to the logging and burning practices of the 
early 1900s, possibly atmospheric pollution, exposure shock, and other 
factors not yet fully understood (Dull et al. 1988, White 1984). 
However, the greatest threat to the high-elevation Fraser fir forests, 
by far, is infestation by the balsam wooly adelgid (Adelges picea 
(Ratzeburg) (Homoptera, Adelgidae)). The balsam wooly adelgid is a 
nonnative insect pest believed to have been introduced into the 
Northeastern United States from Europe around 1900 (Eagar 1984). The 
adelgid was first detected in North Carolina on Mount Mitchell in 1957 
(Hoffard et al. 1995), though it may have been established at that site 
as early as 1940. From Mount Mitchell, the adelgid spread to Fraser fir 
stands throughout the southern Appalachians (Eager 1984). All ages of 
fir trees are attacked by the adelgid, but effects are generally not 
lethal until the trees reach maturity, at around 30 years of age 
(Hoffard et al. 1995). Most mature Fraser firs are easily killed by the 
adelgid, with death occurring within 2 to 7 years of the initial 
infestation (Eagar 1984). The death of the fir trees and the resultant 
opening of the forest canopy causes the remaining trees (including the 
red spruce) to be more susceptible to wind and other storm damage. The 
adelgid is transported and spread primarily by the wind but may also be 
spread by contaminated nursery stock; on the fur or feathers of animals 
and birds; or by humans on contaminated clothes, equipment, or vehicles 
(Eagar 1984). All efforts to control the spread of the adelgid have 
failed thus far. The death of the forests above the rock faces occupied 
by the rock gnome lichen has resulted in locally drastic changes in 
microclimate, including desiccation and increased temperatures, which 
can prove lethal to this species.
    The continued existence of this species is threatened by trampling 
and associated soil erosion and compaction; other forms of habitat 
disturbance due to heavy recreational use of some inhabited areas by 
hikers, climbers, and sightseers; and development for commercial 
recreational facilities and residential purposes. It is also threatened 
by collectors and vandals and is potentially threatened by logging, and 
possibly by air pollution. In addition, the extremely limited and 
restricted range of each of the rock gnome lichen populations makes 
them extremely vulnerable to extirpation from a single event. 
Currently, no one has succeeded in propagating the rock gnome lichen.
    Only 7 of the remaining 35 populations cover an area larger than 2 
square meters (m\2\) (2.4 square yards (yd\2\)). Most are 1 m\2\ (9 
square feet (ft\2\)) or less in size. It is unknown what constitutes a 
genetic individual in this species, and it is possible that each of 
these small colonies or patches consists of only a single clone 
(Weakley 1988). Over the past decade several of the currently extant 
populations have undergone significant declines (Dr. Paula DePriest, 
Associate Curator in Charge of Lichen Collections, National Museum of 
Natural History, Smithsonian Institution, personal communication, 1992; 
Karin Heiman, environmental consultant, personal communication, 1992), 
some within as little as 1 year (Alan Smith, environmental consultant, 
personal communication, 1992). Although most of the remaining 
populations are in public ownership, they continue to be impacted by 
collectors, recreational use, and unknown environmental factors.
    In a recent study funded cooperatively by the Service and the U.S. 
Forest Service (Forest Service), experts in lichenology and air 
pollution attempted to determine if air pollution constituted a 
significant threat to the rock gnome lichen, as it does to many lichen 
species. The study could not conclusively link documented declines with 
atmospheric pollutants. Heavy metal concentrations did not exceed toxic 
levels. However, the lowest sulfur concentrations were measured in the 
colonies having the best health status, and the highest concentrations 
were in colonies with the worst health conditions. The authors of the 
study warned that future increases in sulfur compound deposition might 
cause damage to the rock gnome lichen, especially where it occurs on 
substrates with low buffering capacity. The results of the study were 
further complicated by the discovery of parasitic algae and lichens 
that were found to be attacking the rock gnome lichen in several 
populations. The relationship between these parasitic organisms and 
environmental factors, such as sedimentation and the accumulation of 
sulfur and phosphorus, requires further study (Martin et al. 1996).

Previous Federal Actions

    Federal Government actions on Gymnoderma lineare began with the 
1990 publication in the Federal Register of a revised notice of review 
of plant taxa for listing as endangered or threatened species (55 FR 
6184); Gymnoderma lineare was included in that notice as a category 2 
species. Prior to 1996, a category 2 species was one that we were 
considering for possible addition to the Federal List of Endangered and 
Threatened Wildlife and Plants but for which conclusive data on 
biological vulnerability and threats were not available to support a 
proposed rule. We discontinued the designation of category 2 species in 
the February 28, 1996, Notice of Review (61 FR 7956).
    Subsequent to the 1990 notice, the Service received additional 
information from the North Carolina Natural Heritage Program (Alan 
Weakley, North Carolina Natural Heritage Program, personal 
communication, 1991) and the Smithsonian Institution (P. DePriest, 
personal communication, 1992). This information and additional field 
data gathered by us, the North Carolina Natural Heritage Program, and 
the National Park Service (Park Service) (Keith Langdon and Janet Rock, 
Park, personal communication, 1992; Bambi Teague, Blue Ridge Parkway, 
personal communication, 1991) indicated that the addition of Gymnoderma 
lineare to the Federal candidate list of endangered or threatened 
plants was warranted. A candidate species is a species for which we 
have on file sufficient information to propose it for protection under 
the Act.
    The Service approved this species for elevation to category 1 
status on August 30, 1993, and proposed it for listing as endangered on 
December 28, 1993 (58 FR 68623). The proposal provided information on 
the species' range, biology, status, and threats to its continued 
existence. The proposal included a proposed determination that 
designation of critical habitat was not prudent for the species because 
such designation would not be beneficial and

[[Page 51447]]

could further threaten the rock gnome lichen. Through associated 
notifications, we invited comments on the proposal and factual reports 
or information that might contribute to the development of a final 
finding. We contacted and requested comments from appropriate Federal 
and State agencies, county governments, scientific organizations, 
individuals knowledgeable about the species or its habitat, and other 
interested parties. We published legal notices, which invited public 
comment, in newspapers covering the range of the rock gnome lichen. We 
received 15 written comments. Eleven of these expressed strong support 
for the proposal, as presented, without critical habitat. One commentor 
presented additional information without stating a position. One 
additional commentor took no position on the proposal but expressed a 
negative view toward the potential designation of critical habitat. Two 
commentors opposed the proposal; one stated no reason for opposition, 
and the other expressed the opinion that logging was not a potential 
threat to the lichen and that extinction is a natural process.
    Following our review of all the comments and information received 
throughout the listing process, by final rule (60 FR 3557) dated 
January 18, 1995, we listed the rock gnome lichen as endangered. We 
addressed all the comments received throughout the listing process and 
incorporated changes into the final rule as appropriate. That decision 
included a determination that the designation of critical habitat was 
not prudent for the rock gnome lichen, because, after a review of all 
the available information, we determined that such a designation would 
not be beneficial to the species and that the designation of critical 
habitat could further threaten the lichen.
    On June 30, 1999, the southern Appalachian Biodiversity Project and 
the Foundation for Global Sustainability filed a lawsuit in United 
States District Court for the District of Columbia against the Service, 
the Director of the Service, and the Secretary of the Department of the 
Interior challenging the not prudent critical habitat determinations 
for four species in North Carolina--the spruce-fir moss spider 
(Microhexura montivaga), Appalachian elktoe (Alasmidonta raveneliana), 
Carolina heelsplitter (Lasmigona decorata), and rock gnome lichen. On 
February 29, 2000, the U.S. Department of Justice entered into a 
settlement agreement with the plaintiffs in which we agreed to 
reexamine our prudency determination for the rock gnome lichen and 
submit a new proposed prudency determination to the Federal Register by 
April 1, 2001. We also agreed to submit by that same date a new 
proposed critical habitat determination, if prudent. We agreed that, if 
upon consideration of all available information and comments, 
designation of critical habitat was not prudent for the rock gnome 
lichen, we would submit a final notice of that finding to the Federal 
Register by October 1, 2001. We also agreed that if the designation of 
critical habitat was prudent for the rock gnome lichen, we would send a 
final rule of this finding to the Federal Register by January 1, 2002.
    On April 5, 2001, we published in the Federal Register (66 FR 
18062) our proposed finding that critical habitat designation for the 
rock gnome lichen would not be prudent. On April 5, 2001, we also 
notified appropriate Federal and State agencies, local governments, 
scientific organizations, individuals knowledgeable about the species, 
and other interested parties and requested their comments on the 
proposal. A legal notice that announced the availability of the 
proposed finding and invited public comment was published in the 
following newspapers: Mitchell News Journal, Spruce Pine, North 
Carolina; Greenville News, Seneca, South Carolina; Mountaineer, 
Waynesville, North Carolina; Smoky Mountain Times, Bryson City, North 
Carolina; Yancey Common Times Journal, Burnsville, North Carolina; 
Transylvania Times, Brevard, North Carolina; Asheville Citizen-Times, 
Asheville, North Carolina; Avery Journal, Newland, North Carolina; 
Clayton Tribune, Clayton, Georgia; Tennessee Star Journal, Pigeon 
Forge, Tennessee; Rutherford City News, Rutherfordton, North Carolina; 
Mountain Times, West Jefferson, North Carolina; and the Sylva Herald, 
Sylva, North Carolina.
    In the proposed finding and associated notifications, we requested 
that all interested parties submit factual reports or information by 
June 4, 2001, that might contribute to our determination and the 
development of the final finding.

Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. Regulations under 50 CFR 424.12(a)(1) state 
that the 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 activity and the 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. In our January 18, 1995, final rule, we determined that both 
situations applied to the rock gnome lichen.
    We have documented evidence that collecting and other human 
disturbance have already detrimentally affected this species. Concern 
that the species would be over-collected by lichenologists led Mason 
Hale to state emphatically in his 1979 book, How To Know the Lichens, 
which is the standard reference for lichen identification for amateurs 
and professionals alike, that the rock gnome lichen ``is one of the 
most unusual endemic lichens in North America and should not be 
collected by individuals.'' Nevertheless, populations of rock gnome 
lichen have been decimated by scientific collectors. Dr. Paula DePriest 
(personal communication, 1992) observed that the type locality for rock 
gnome lichen was virtually wiped out by lichenologists who collected 
them during a field trip, in spite of the fact that this collection 
occurred within a national park and was not permitted. After the 
species was listed, another illegal collection occurred at a different 
location within a national park. Another population outside the Park 
was vandalized for unknown reasons (the lichens were scraped off the 
rock to form graffiti). Illegal collection and/or vandalism is 
difficult to document, but it is suspected as a possible cause for the 
precipitous declines in some of the other populations that are close to 
trails or roads. Some of these populations have been reduced in 
coverage by as much as 90 percent in a single year. A State park in 
South Carolina, upon discovering a small population of this species 
close to an existing trail, relocated the trail away from the rock face 
to deter potential collectors.
    The Park Service, which developed the recovery plan for this 
species in cooperation with the Service, requested that we remove any 
mention of particular mountains from the recovery plan because they 
feared that this would give enough information to knowledgeable 
collectors to allow them to find the lichen and collect it. Park 
Service personnel believe that divulging locations or producing maps of 
rock gnome lichen habitat would greatly compromise their ability to 
protect the species within the national parks where it occurs (K. 
Langdon and J. Rock, Park Service, personal communication, 1999).

[[Page 51448]]

    Three internationally recognized lichen experts are on record as 
being opposed to making public the specific locations of rare lichens 
because of the danger from collectors (P. DePriest, personal 
communication, 2000; J. Dey, Illinois Wesleyan University, personal 
communication, 2000; J. Martin, Eurouniversity, Estonia, personal 
communication, 2000). Dr. DePriest emphasized that, for rare lichens, 
the Smithsonian deliberately deletes location data from its publically 
disseminated database. She further related several incidents where the 
collecting of rare lichens damaged other species in areas within the 
range of the rock gnome lichen. In at least one instance, this 
collecting was done on a field trip led by professional lichenologists 
who had forewarned the participants that no collecting of rare species 
would be tolerated; the rarest species were collected anyway, when the 
field trip leaders were not looking. Dr. Juri Martin, Rector of 
Estonia's Eurouniversity, further emphasized the danger of making 
public the locations of rare lichen species. In Estonia, as well as in 
Italy, Switzerland, and other European countries, databases with 
specific location data for rare lichen species are kept in guarded 
locations where only a few professionals have access to them. They are 
never made public because of the danger of collecting. Dr. Martin 
emphasized that in these countries, regulations prohibiting the 
collection of rare species, have been ineffective; the only real 
protection for those lichens is the safeguarding of specific location 
data and maps. Nothing more specific than county or forest distribution 
is ever made public. Dr. Martin recommended that rock gnome lichen be 
included on the World Red List of Endangered Lichens. Dr. Jon Dey, 
eminent lichenologist at Illinois Wesleyan University, further 
emphasized that he believed it would be inadvisable to publish specific 
location data for endangered lichen species because the general public 
and hobbyists could, as a result, inadvertently, or even purposely, 
damage them. He further stated his belief that, although it might be 
necessary to allow legitimate professionals access to a single closely 
monitored population for the purposes of observation and research, even 
scientists should not be able to collect endangered lichens from the 
wild.
    The Great Smoky Mountains National Park (Park) has recently 
undertaken an All Taxa Biodiversity Inventory. In the process of this 
comprehensive survey, experts on different taxa from all over the world 
are being brought into this half-million-acre park to inventory and 
document occurrences of all species within its boundaries. In the 
process of this ambitious inventory, several watersheds within the Park 
were identified by experts as having internationally significant 
concentrations of rare bryophytes and lichens, and the guest scientists 
petitioned the Park Service to formally designate these areas as 
lichen/ bryophyte sanctuaries (K. Langdon, personal communication, 
2000). The Park Service declined because of their fear of attracting 
collectors to the areas; not only collectors of rare species, but 
indiscriminate moss collectors who routinely ravage the Park and the 
adjacent national forests for ``log moss'' to sell in mass quantities 
(truck loads have been confiscated from poachers in the Park) in the 
commercial florist trade.
    Rock gnome lichen is extremely fragile and is easily scraped off 
its rocky substrate; denuded habitat is not recolonized quickly, if at 
all. Because this species occupies such limited areas (with most of the 
populations being less than a square meter in size), even a single 
person climbing on a rock face could cause significant damage to the 
species and its habitat that could lead to the extirpation of an entire 
population. Increased visits to population locations stimulated by 
critical habitat designation, even without deliberate collecting, could 
adversely affect the species due to the associated increase in 
trampling of its fragile habitat. We believe that the designation of 
critical habitat and the required public dissemination of maps and 
descriptions of occupied sites could result in the demise or severe 
diminishment of this species. The moss collectors or poachers (referred 
to above) that the Park Service is trying to combat have been caught 
leaving the Park with dump truck loads full of moss and anything that 
looks like moss, including lichens, liverworts, and other bryophytes. 
Many species of moss and lichens are superficially similar in 
appearance and are similarly decorative in floral arrangements. 
Earlier, we mentioned that the rock gnome lichen is almost always found 
growing with the moss Andreaea. These collectors or poachers are 
indiscriminate, stripping everything mosslike from logs, rocks, and 
trees within entire coves and watersheds. This includes essentially 
anything they think can be sold in the commercial florist trade. The 
largest and best remaining populations of rock gnome lichen are located 
within the Park, where they are more accessible and therefore more 
susceptible to intentional or inadvertent collection. Therefore, the 
Park Service has expressed concerns that attracting moss collectors to 
watersheds designated as sanctuaries and occupied by the endangered 
lichen could result in devastating incidental collection of the listed 
species.
    The Park Service has expressed definite concerns about any plans to 
designate critical habitat for the rock gnome lichen because of the 
collection danger to this species' tiny, vulnerable populations. In 
fact, legislation has recently been enacted that gives the Park Service 
the authority to withhold from the public any specific locality data 
for endangered, threatened, rare, or commercially valuable resources 
within a park (Pub. L. 105-391, Section 207; 16 U.S.C. 5937).
    Given the very small size of most colonies and the slow growth rate 
of this species, extirpation of individual colonies by collecting, 
vandalism, and habitat degradation by curiosity seekers is likely 
(Weakley 1988; personal observation). Many of the populations are 
easily accessible, being close to trails or roads, but they are 
currently unadvertised and therefore mostly unnoticed by the general 
public. Publicity could generate an increased demand and intensify 
collecting pressure or facilitate opportunities for further vandalism. 
This species has already been subjected to excessive collecting by 
scientific collectors at several sites. Increased publicity and a 
provision of specific location information associated with critical 
habitat designation could result in increased collection from the 
remaining wild populations. Although the taking of endangered plants 
from land under Federal jurisdiction and reduction to possession is 
prohibited by the Act, the taking provisions are difficult to enforce. 
We believe the publication of critical habitat descriptions would make 
the rock gnome lichen more vulnerable to collectors and curiosity-
seekers and would increase enforcement problems for the Forest Service 
and Park Service. Also, the populations on private land would be more 
vulnerable to taking, where they receive little or no protection under 
the Act.
    Our fears of increased human threats to the species from the 
publication of maps of the occupied sites is based on specific 
experience, not on conjecture. Another federally listed North Carolina 
mountain plant for which critical habitat was designated was severely 
impacted by collectors immediately after the maps were published. This 
collection happened even though this plant was not previously known to 
be

[[Page 51449]]

desired by rare plant collectors and had never been offered for sale in 
commercial trade. Some of the collectors appeared in the local Forest 
Service district offices, with the critical habitat map from the local 
newspaper in their hands, asking directions to the site. Such incidents 
are extremely difficult to document. The only reason we were able to do 
so in this case was because, for this very rare and restricted plant, 
every individual was mapped. When plants vanished from our permanent 
plots, we were able to find the carefully covered excavations where 
they had been removed. Otherwise, we would have only observed a 
precipitous crash in the populations without knowing that the cause was 
directly attributable to collection, apparently stimulated by the 
publication of specific critical habitat maps.
    Increased visits to rock gnome lichen colonies, stimulated by a 
critical habitat designation, even without collection of the species, 
could adversely affect the rock gnome lichen due to the associated 
increase in trampling of the fragile habitat it occupies. This might 
not be as serious a concern in other parts of the country where there 
is relatively little recreational pressure, but the Park has more 
visitors annually than any other National Park in the United States. 
Even if just a small percentage of those people visited the sites 
occupied by the lichen, the potential adverse effects to the species 
could be tremendous and irreparable.
    Despite attempts by lichenologists and tissue culture experts, no 
one has been able to propagate the rock gnome lichen. If populations 
are vandalized or collected to the point of extirpation, it is not 
possible to restore them. Similarly, the restoration of devastated 
populations of other lichens has often not been successful (Science 
News, August 2000). We believe anything that increases the chances of 
losing additional populations, such as publicizing locations of 
remaining sites, represents an unconscionable risk to the species' 
chance of survival and recovery.
    In addition, we believe that the designation would not provide 
significant benefits that would outweigh these increased risks. A 
majority of the remaining populations are on public land, primarily 
under the jurisdiction of the Forest Service and Park Service. These 
agencies are cooperating with us to protect the species from trampling 
and inappropriate collection, as well as to monitor the effects of air 
pollution. We are also working with the North Carolina and Tennessee 
Heritage Programs, the North Carolina Plant Conservation Program, and 
The Nature Conservancy to determine protection priorities for the 
remaining populations. The Nature Conservancy has recently secured a 
conservation easement for one of the most significant privately owned 
sites. We, along with all of these agencies, work to inform the public 
about the lichen and its importance, while at the same time ensuring 
the protection of the species and its habitat from potential threats. 
Within the Park, there is no commercial logging. Occupied sites outside 
the Park are almost exclusively on steep rock faces and cliffs, where 
no Federal projects are likely to occur. In cases where excessive 
degradation of the lichen's cliff habitat has resulted from 
recreational overuse, both the Park Service and the Forest Service have 
acted to close those sensitive areas to the public. No greater 
protection would be afforded by critical habitat designation.
    The Service has always recognized the value of habitat to the 
conservation of endangered and threatened species and continues to work 
with other agencies and non-Federal land managers to accomplish the 
most effective protection and management of land critical to the 
survival of listed species. The Federal and State agencies and 
landowners involved in managing the habitat of this species have been 
informed of the species' locations and of the importance of protection. 
In addition, we are working with several private landowners of 
significant sites to protect the populations on their lands. Although 
we have not yet been able to definitively link population declines in 
the rock gnome lichen to air pollution, we remain concerned that air 
quality may be an important factor for this species, as it is for many 
other lichens. The largest and best remaining populations of the rock 
gnome lichen are within the Park, which is designated by the 
Environmental Protection Agency as a Class I Air Quality Area, where no 
degradation of air quality is allowed. Therefore, the designation of 
areas of the Park as critical habitat for this species would offer no 
additional protection of the species from air quality problems if these 
are determined to be a critical factor for this species' continued 
existence.
    For species, like the rock gnome lichen, that have extremely small 
populations (most are less than 1 m2 [approximately 9 
ft2]) and a very small, restricted range, the triggers for 
``jeopardy'' and ``adverse modification'' of critical habitat under 
section 7 of the Act are essentially identical. Because the triggers 
for ``jeopardy'' and ``destruction or adverse modification'' of 
critical habitat both require that the Service find that a Federal 
action is likely to have an appreciable effect on both the survival and 
recovery of the species, we have determined that, because of the 
precarious status of the species, the small size of the surviving 
populations, the restricted range of the species, and the limited 
amount of suitable habitat available to the species, any Federal action 
with the potential to trigger the standard for destruction or adverse 
modification of critical habitat would also jeopardize the species' 
continued existence (the jeopardy standard without critical habitat). 
Therefore, no additional protection would be provided to this species 
through the designation of critical habitat that would not already be 
provided through the jeopardy standard. We acknowledge that critical 
habitat designation in some situations may provide some value to the 
species; for example, by identifying areas important for conservation. 
However, for the rock gnome lichen, we have weighed the potential 
benefits of designating critical habitat against the significant risks 
of doing so and find that the minor benefits of designating critical 
habitat do not outweigh the potential increased threats from 
collection, vandalism, and inadvertent habitat degradation caused by 
curiosity-seekers. Therefore, we have determined that the designation 
of critical habitat for the rock gnome lichen is not prudent.

Summary of Comments and Recommendations

    We received a total of ten comments during the comment period. 
Written comments were received from two Federal agencies, three State 
agency representatives, three private individuals, and two conservation 
organizations. Seven of the ten commentors wrote in support of the 
Service's proposed finding that the designation of critical habitat 
would not be prudent for the rock gnome lichen. One individual and one 
conservation organization (the latter was the plaintiff in the above-
mentioned suit against the Service) thought the Service should 
designate critical habitat for the lichen. One individual did not 
express an opinion but thought the public needed more information about 
the need to protect the lichen. We grouped comments of a similar nature 
or subject matter into broader issues. These issues and our response to 
each are summarized below.
    Issue 1: The seven commentors that supported the Service's decision 
included all of the Federal and State agencies, and one private and one

[[Page 51450]]

conservation organization. These letters emphatically supported the 
Service's decision that the designation of critical habitat for the 
lichen would not be prudent because of the dangers from collectors, 
vandals, and habitat destruction caused by curiosity-seekers and 
believed that our proposed finding was consistent with the purposes of 
the Act. The head of the North Carolina Plant Conservation Program 
(North Carolina has almost all the remaining populations of this 
species) stated that his agency had been working to protect the lichen 
for 15 years and that:

    We are strongly opposed to designation of critical habitat for 
rock gnome lichen. This is one of those species for which 
designation of critical habitat, intended to enhance protection of 
the species, could be expected to have the opposite effect, with 
disastrous consequences * * *. Based on our experience with this 
species we can see no benefits from designation of critical habitat. 
On the contrary, we believe that designation of critical habitat in 
this case would be dangerously irresponsible, threatening the 
species our agency and the State of North Carolina are trying to 
protect.

    The botanist for the North Carolina Department of Environment 
and Natural Resources' Natural Heritage Program also agreed with the 
Service's determination that the designation of critical habitat 
would not be prudent for the rock gnome lichen. She further stated:

    One of the populations of rock gnome lichen occurs within a 
state park. The Division of Parks and Recreation is opposed to 
public release of information on the location of rock gnome lichen 
on state property. Such a release could be detrimental to the 
population by making it more vulnerable to excess visitation, 
collection, or vandalism.

    The Chief Ecologist for the Association for Biodiversity 
Information (formerly a branch of The Nature Conservancy) also 
supported the Service's proposed finding, stating:

    I agree with and strongly support the Service's ``reproposal'' 
that the designation of critical habitat would have a detrimental 
effect on the recovery of this species * * *. I provided much of the 
original information on populations of and threats to this very 
restricted and distinctive species. Populations are small and very 
vulnerable to damage by collectors, a fact which Mason Hale went out 
of his way to make, even in his 1979 field guide. Since that time, 
several populations with which I am familiar have been severely 
impacted by collectors, who probably did not consider the damage 
they were causing. Furthermore the potential for actual malicious 
damage is very real * * *. The Service's original determination was 
prudent, and I commend the Service for resisting pressure to reverse 
that decision to a less prudent one.

    The Superintendent of the Blue Ridge Parkway, National Park 
Service, stated:

    We commend and support the decision by U.S. Fish and Wildlife 
Service to not designate critical habitat for the endangered rock 
gnome lichen (Gymnoderma lineare). It is our opinion that 
designating critical habitat does not afford additional protection 
to any federally listed species, but especially to Gymnoderma 
because of the sensitive and fragile nature of the species makes it 
particularly vulnerable to disturbance * * * the small area (less 
than 2 square meters) occupied by patches makes it more vulnerable; 
and the slow growth rate makes recovery from disturbance difficult, 
if not impossible. The greatest threat to rock gnome lichen 
populations in this park is trampling from hikers and rock climbers. 
The Blue Ridge Parkway has made significant efforts to protect 
populations of Gymnoderma, including closing fragile areas to 
visitor use. In addition, we are also gravely concerned about over-
collecting by researchers and plant collectors * * * Publicizing 
critical habitat maps for Gymnoderma will undoubtedly make our job 
of protecting these populations far more difficult as collectors and 
curious visitors access these sites and purposefully or 
inadvertently trample or otherwise impact this species. We firmly 
believe that specific locations of rare species should never be 
disclosed to the general public. Indeed, the National Park Service 
has authority under the Thomas Bill (16 U.S.C. 5937, Section 207) to 
withhold from the public any specific locality data for endangered, 
threatened, rare, or commercially valuable resources within a park.

    The botanist for the North Carolina Plant Conservation Program 
stated:

    I strongly agree with the US Fish & Wildlife proposal not to 
designate critical habitat for the endangered lichen Gymnoderma 
lineare (rock gnome lichen) * * * As botanist for the North Carolina 
Plant Conservation Program for the last fourteen years, I have grown 
increasingly aware of the need to protect information on the 
locations of rare plant species. I have seen where obscurely located 
Sedum rosea plants had disappeared, apparently removed by an 
enthusiast whose desire to collect was greater than the impulse to 
protect. I have seen holes in the ground where Venus flytraps had 
recently grown. I have gotten reports of pitcher plants stolen from 
protected locations by unlawful, self-justifying ``rescuers.'' As 
Ginseng Coordinator I have many, many tales of poached ginseng. A 
great deal of effective work has been and is being put into the 
protection of endangered plant populations, without critical habitat 
having been designated for any of them. A designation of critical 
habitat offers no more protection for most endangered plant species 
than they have without it. Making locations a matter of readily 
accessible public record exposes the species to damage and 
exploitation by unethical collectors--I'm amazed at how many such 
there are, collecting for self-satisfaction or for money--or even 
photographers and curious botanical enthusiasts who disturb the 
habitat--critically--just to get close to the plant. Rock gnome 
lichen, specifically, grows where much of it is already protected 
and land managers are aware of it and its management needs. The 
lichen will not benefit from a designation of critical habitat. If 
critical habitat were to be designated and locations published, the 
species would be in critical danger from lichen collectors. Yes, 
there are lichen collectors, and there is a market for lichens. I 
hope the [Service] will stand firm in its determination to protect 
this unique species by not designating critical habitat. Rock gnome 
lichen deserves all the truly effective help it can get.

    The Assistant Superintendent of the Great Smoky Mountains National 
Park (where the vast majority of the remaining populations of rock 
gnome lichen survive) emphatically agreed with the Service's not 
prudent finding, stating:

    As you are aware, we have worked closely with the U.S. Fish and 
Wildlife Service on a number of Threatened and Endangered species 
issues over the years. Few issues are as important to the long-term 
preservation of these sensitive species as is the ability to keep 
their locations confidential. * * * Once the specific habitats [of 
rare species] become generally known, the rare species there are 
permanently subject to a wide array of deleterious actions including 
intentional taking, politically-motivated vandalism, trampling, or 
disturbance by the curious and well meaning. Our ability to detect 
illegal actions by periodic monitoring is usually cursory at best * 
* * Within the last year, a number of individuals of another 
federally listed plant in this park were intentionally vandalized/
killed, even though they were within an area closed and posted to 
the public * * * Since there will never be enough law enforcement 
staff, even in the relatively well-policed national parks, to 
protect these species, we must rely on the confidentiality of their 
locations to the maximum extent possible. * * * In one incident, a 
population of this species [the lichen] was subject to unbridled 
collection for scientific specimens some years ago and has never 
fully recovered. It is now down to a few square inches at this 
particular site. We believe that illegal collecting at this 
``known'' site, perhaps repeatedly, was an important factor in its 
decline. If critical habitat were to be designated * * * it would 
not be difficult for illegal collectors to discover occurrences, 
even if they are in the Park's backcountry. It is quite easy for a 
knowledgeable person to read about the species' habitat requirements 
and find the few points within a delineated area that the listed 
species could possibly occur. Designating CH (critical habitat) at a 
very broad geographic resolution defeats the purpose of publishing a 
map of CH and encumbers host land managing agencies with burdensome 
restrictions over very large areas where the species is known NOT to 
occur. In the 1990's, the Park received a request from a 
lichenologist who wished to have a site that has the rock gnome 
lichen designated as one of the first ``lichen reserves'' in the 
U.S. The Park specifically declined this request because of the 
greatly increased visitation

[[Page 51451]]

that the fragile habitat would receive. The opinion of Park 
biologists at that time was that although most scientists are 
conservation oriented, only a few collections or visits by groups 
over the intervening decades would be all that was necessary to 
cause a drastic decline. The Omnibus Parks Act of 1998, usually 
referred to as the ``Thomas Act,'' gives the National Park Service 
the ability to exempt locational information about rare, 
commercially valuable, or otherwise collectable species from public 
disclosure. Under the Thomas Act, we would not allow any specific 
locational information to be disclosed about this lichen for the 
reasons given. If the [Service] is forced to designate Critical 
Habitat over the objections of the National Park Service, we 
question the legality of this action. We would also question to what 
degree the two Federal agencies would be able to fully cooperate and 
share data in the future. The best strategy, we believe, is for the 
[Service] and other land management agencies to continue to work 
together toward recovery of these species to a point where they can 
be delisted. * * * While citizens have the right to know what 
species occur on their public lands and their status, we believe 
that publication of rare species locations in any form is almost 
never in the public interest, does not meet the Congressional 
mandate of the National Park Service, and is counter both to the 
intent of the Thomas Act and the spirit of the Endangered Species 
Act.

    Response: The Service concurs.
    Issue 2: One commentor, taking no position on critical habitat 
designation, expressed concern that the public needs more information 
about the need to protect the rock gnome lichen and that she was 
concerned that she had unknowingly damaged the species while rock 
climbing on the Blue Ridge Parkway at one of the occupied sites.
    Response: The Service agrees that more public education is needed 
about the need to protect this and other rare lichens, and we are 
working to accomplish this with other agencies and organizations. There 
is no likelihood that the commentor damaged rock gnome lichen at this 
national park site, because the Service has made the Park aware of the 
lichen's occurrence there, and the Park has taken actions to close off 
the areas occupied by the lichen to recreational use.
    Issue 3: Two commentors expressed the opinion that the Service's 
decision not to designate critical habitat for the rock gnome lichen 
was not in the best interest of this species. Further, the commentors 
believed that the Service should at least designate unoccupied areas in 
order to provide habitat for the species.
    Response: The Endangered Species Act (Act) mandates that we analyze 
each species' situation individually, weighing the costs versus the 
benefits of designating critical habitat. While for some species it is 
not particularly dangerous to publish maps of specific occupied sites, 
for a collected species like the rock gnome lichen, the case is 
entirely different. Although experts in the field of tissue culture and 
lichenology have attempted to cultivate rock gnome lichen, it has never 
been successfully accomplished. Transplanting it is not possible to 
transplant it or otherwise establishing it in areas of currently 
unoccupied habitat is therefore not possible. No documentation exists 
of the lichen regrowing at sites where it has been completely 
eliminated. Therefore, the designation of unoccupied critical habitat 
for this species serves no useful purpose.
    Issue 4: The same individual expressed the opinion that, 
``arguments that designated habitat would lead to rampant collection or 
intentional harm of the lichen don't really hold up to close scrutiny. 
This is not some fabulous orchid we're talking about.''
    Response: As evidenced by the numerous comments received from 
expert botanists and professional natural resource managers who have 
been trying to protect this species for the past 15 years or more, a 
definite threat to the lichen exists from collectors and vandals. 
Instances of this have been documented repeatedly, even in protected 
areas such as National Parks. For plants on private land, the Act 
offers no protection from taking, so those populations are even more 
vulnerable to this type of activity.
    Issue 5: The same individual stated the following:

    While it is far easier and cheaper to find reasons not to 
provide protection for endangered species, it is not ethically (or 
morally) correct. * * * I hope you'll take appropriate action to 
provide habitat for the rock gnome lichen, for present and future 
conditions. This is a nice way of saying: Please do your job.

    Response: The Service has taken considerable action, in cooperation 
with other agencies and landowners, to provide protection for this 
species on public and private land. At our recommendation, public 
trails have been routed away from the vicinity of the lichen, 
observation platforms have been built at popular sites to protect the 
lichen's sensitive habitat from trampling, certain rock faces have been 
made off-limits to climbers, and we have funded cooperative studies to 
determine if the lichen is suffering from the effects of air 
pollutants. Our law enforcement division has investigated reports of 
illegal collecting from Federal land. It is clear that the experts on 
this species, as well as the other public agencies charged with 
protecting it, strongly support our contention that the designation of 
critical habitat is not in the best interest of the rock gnome lichen 
and, therefore, should not be done.
    Issue 6: The other one of the two commentors who did not support 
the Service's proposed finding contended that location information is 
already available to the public, citing that the location of 1 of the 
35 remaining populations of this species is described in public 
documents.
    Response: The fact that one population's whereabouts are known does 
not mean that it is a good idea to divulge the same information about 
the other 34 populations, which are not known. In fact, the Park 
Service recently took action to close the site of this specific 
population to all public visitation because of increasing declines in 
the population. As emphatically noted by all the public agencies above, 
both State and Federal, that are charged with protecting this species, 
as well as one private conservation organization, divulging specific 
location information for this species is dangerous and compromises its 
chances of survival and recovery in the wild.
    Issue 7: The same commentors commented that the Service had not 
analyzed whether identifying areas as critical habitat would educate 
recreational users, making them more careful and less likely to harm 
the lichen.
    Response: As noted by State and Federal agency experts above, even 
well-meaning people can cause irreparable damage to a species like the 
rock gnome lichen if they know where populations occur. Since most of 
the populations are less than a square meter in size and since this 
species grows on rocks where it can be scraped off and annihilated by a 
single person's boots, innocent curiosity-seekers wanting to get a 
closer look at the species can cause irreparable harm to it.
    Issue 8: The same commentors stated that the proposal indicated 
that air pollution is a problem but that the Service only considered 
impacts on the Park in making a no-additional-benefit determination. 
They further stated their belief that critical habitat designation 
will, in fact, provide an avenue for improving air quality by forcing 
polluters to consider the impacts to the lichen outside the Park.
    Response: The commentors apparently misunderstood the proposed 
finding. In it we stated that, in spite of studies we funded 
specifically to determine if air pollution has an effect on the lichen, 
to date we have not been

[[Page 51452]]

able to prove that a cause-and-effect relationship exists between air 
pollution and rock gnome lichen declines, even though this relationship 
has been shown for other lichens in various parts of the world. 
Different lichen species have different sensitivities to specific air 
pollutants; in fact, some European species even thrive on increased 
sulphur levels in the atmosphere and expand their populations in 
response. We fully intend to pursue further studies of this issue to 
try to determine the causes for lichen declines. Regardless of whether 
critical habitat has been designated, Federal agencies are required by 
the Act to evaluate the direct and indirect effects of their actions on 
listed species and ensure that their actions are not likely to 
jeopardize the continued existence of listed species. Therefore, any 
Federal activity that has the potential to adversely affect the rock 
gnome lichen is already subject to the provisions of the Act. However, 
as we have already stated, at present we have no specific data that 
indicate air pollutants are causing declines in the lichen. If in the 
future such data becomes available, we will work to ensure, as we 
always have, that any Federal agency involved honors its 
responsibilities under section 7 of the Act, which apply regardless of 
whether critical habitat is designated. Meanwhile, the Environmental 
Protection Agency's Class I Air Quality Area designation for the Park 
offers strict protection for that entire geographic area, because, 
under current regulations, no degradation of air quality is allowed. 
This stringent protection is already in place and is not contingent 
upon proving that listed species are being adversely affected by 
increasing levels of air pollution. In other parts of the lichen's 
range that are not designated as Class I Air Quality Areas, Federal 
agencies responsible for ensuring compliance with the Clean Air Act are 
still required to ensure that their actions (or lack thereof) are not 
jeopardizing the continued existence of the lichen or any other listed 
species, regardless of the designation of critical habitat.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we have sought the expert opinions of at least three 
appropriate and independent specialists regarding our proposed finding. 
The purpose of such review is to ensure that listing decisions are 
based on scientifically sound data, assumptions, and analyses. We sent 
these peer reviewers copies of the proposed finding immediately 
following publication in the Federal Register. All the peer reviewers 
who responded supported our proposal not to designate critical habitat, 
and we have incorporated their comments into this final finding (many 
are in the ``Summary of Comments'' section).

References Cited

    A complete list of all references cited in this finding is 
available upon request from the Asheville Field Office (see Addresses 
section).

Author

    The primary author of this document is Nora Murdock (see Addresses 
section).

    Dated: September 27, 2001.
Marshall P. Jones Jr.,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 01-24660 Filed 10-2-01; 8:45 am]
BILLING CODE 4310-55-P