[Federal Register Volume 69, Number 247 (Monday, December 27, 2004)]
[Proposed Rules]
[Pages 77167-77173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28168]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 12-Month Findings 
on Resubmitted Petitions To List the Southern Idaho Ground Squirrel, 
Sand Dune Lizard, and Tahoe Yellow Cress

AGENCY: Fish and Wildlife Service, Interior.

ACTION: 12-Month Findings on Resubmitted Petitions to List Three 
Species Under the Endangered Species Act.

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SUMMARY: We, the Fish and Wildlife Service (Service), announce our 12-
month findings on resubmitted petitions to list the southern Idaho 
ground squirrel (Spermophilus brunneus endemicus), the sand dune lizard 
(Sceloporus arenicolus), and the Tahoe yellow cress (Rorippa 
subumbellata) pursuant to the Endangered Species Act (Act) of 1973, as 
amended. We find that proposed rules to list these species continue to 
be warranted but precluded by other higher priority listing actions. We 
will continue to consider each of these species as a candidate for 
listing.
    We request additional status information that may be available for 
any of these three candidate species. This information will help us in 
monitoring changes in the status of these candidate species and 
conserving them. Also, we will consider this information in preparing 
subsequent reviews to determine whether listing remains warranted, and 
in the preparation of listing documents in the event that a proposal 
for listing for one or more of these species is no longer precluded.

DATES: This finding was made on December 17, 2004. We will accept 
comments on these three candidate species at any time.

ADDRESSES: Submit your comments regarding any of the three species to 
the Regional Director of the Region identified in SUPPLEMENTARY 
INFORMATION as having the lead responsibility for that species. Written 
comments and materials received will be available for public inspection 
by appointment at the appropriate Regional Office listed in 
SUPPLEMENTARY INFORMATION.
    A species assessment form with information and references regarding 
each of these three candidate species' range, status, habitat needs, 
and listing priority assignment is available for review at the 
appropriate Regional

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Office listed below in SUPPLEMENTARY INFORMATION or on our Internet Web 
site, which is http://endangered.fws.gov/candidates/index.html.

FOR FURTHER INFORMATION CONTACT: The Endangered Species Coordinator(s) 
in the appropriate Regional Office(s) identified in SUPPLEMENTARY 
INFORMATION as having the lead responsibility for that species.

SUPPLEMENTARY INFORMATION:

Background

Petition for a Candidate Species

    Under section 4 of the Act the Service may identify and propose 
species for listing based on the factors identified in section 4(a)(1). 
Section 4 also provides a mechanism for the public to petition us to 
add a species to the lists of species determined to be threatened 
species or endangered species (``Lists'') pursuant to the Act. Under 
section 4(b)(3)(A) of the Act, to the maximum extent practicable we 
must determine within 90 days of receiving such a petition whether it 
presents substantial information that listing may be warranted; we 
refer to this as a ``90-day finding.'' The Act requires that in the 
event of a positive 90-day finding, we must promptly commence a status 
review of the species.
    Section 4(b)(3)(B) specifies that in the event of a positive 90-day 
finding, we shall make and publish in the Federal Register one of three 
possible findings within 12 months of the receipt of the petition, 
which we refer to as a ``12-month finding':
    1. The petitioned action is not warranted;
    2. The petitioned action is warranted (in which case we are 
required to promptly publish a proposed regulation to implement the 
petitioned action); or
    3. The petitioned action is warranted but that (a) the immediate 
proposal of a regulation and final promulgation of regulation 
implementing the petitioned action is precluded by pending proposals, 
and (b) expeditious progress is being made to add qualified species to 
the lists of endangered or threatened species. (We refer to this as a 
``warranted but precluded'' finding.)
    Section 4(b)(3)(C) of the Act requires that when we make a 
warranted but precluded finding on a petition, we are to annually treat 
such a petition as one that is resubmitted on the date of such a 
finding. Thus we are required to publish a new finding on these 
``resubmitted'' petitions on an annual basis.
    On June 21, 2004, the United States District court for the District 
of Oregon (Center for Biological Diversity v. Norton, Civ. No. 03-1111-
AA) found that our resubmitted petition findings for the southern Idaho 
ground squirrel, the sand dune lizard, and the Tahoe yellow cress that 
we published as part of the Candidate Notice of Review (CNOR) on May 4, 
2004 (69 FR 24876) were not sufficient. The court indicated we did not 
specify what listing action is proposed for the higher priority species 
that precluded publishing a proposed rule for these three species, and 
that we did not adequately explain the reasons why actions for the 
identified species are deemed higher in priority, or why such actions 
result in the preclusion of listing actions for the southern Idaho 
ground squirrel, sand dune lizard, or Tahoe yellow cress. The court 
ordered that we publish updated findings for these species within 180 
days of the order.
    We previously received petitions and made findings that listing 
each of these species was warranted but precluded; the most recent 
resubmitted petition findings for these species were part of the CNOR 
published on May 4, 2004 (69 FR 24876). We subsequently have updated 
our information and incorporated any new information in updated 
assessments of the status of and threats to these three species. As a 
result of these updated assessments and after taking into consideration 
available funding in relation to pending listing actions (described 
below), we now are making continued warranted-but-precluded 12-month 
findings on the petitions for these three species. (In the ``Summary of 
Petitioned Candidates,'' below, we present summaries of why these three 
species continue to warrant listing and we specify the listing priority 
number that we have assigned to each species.) These findings mean that 
the immediate publication of proposed rules to list these species 
remains precluded by our work on higher priority listing actions. A 
description and evaluation of the reasons and data on which these 
findings are based is provided below, including specific reasons why 
the issuance of a proposed listing rule is precluded for each of these 
species, as well as a description of expeditious progress being made by 
the Service to add qualified species to the Lists. We will continue to 
monitor the status of these three species as new information becomes 
available to determine if a change in status is warranted, including 
the need to emergency-list any or all of the three species under 
section 4(b)(7) of the Act.

Preclusion and Expeditious Progress

    Preclusion is a function of a species' listing priority in relation 
to the resources that are available and competing demands for those 
resources. (The listing priority of a species is represented by the 
listing priority number (LPN) we assign to it in accordance with our 
priority guidance as published on September 21, 1983 (48 FR 43098)). 
Thus, in any given fiscal year (FY), multiple factors dictate whether 
it will be possible to undertake work on a proposed listing regulation 
or whether promulgation of such a proposal is warranted but precluded 
by higher priority listing actions.
    The resources available for listing actions are determined through 
the annual appropriations process and we cannot spend more than is 
appropriated for the Listing Program without violating the Anti-
Deficiency Act. The Listing Program includes work related to proposed 
and final listing regulations under the Act, critical habitat 
designations, and petitions from the public to list species (including 
work on petitions being addressed for the first time as well as the 
annual review to make findings on resubmitted petitions for ``warranted 
but precluded'' candidate species).
    The number of listing actions that we can undertake in a given year 
also is influenced by the complexity of those listing actions, i.e., 
more complex actions generally are more costly and this affects the 
number of listing actions that we can work on with a fixed amount of 
funding in a given year. For example, for FY 2002 to FY 2004, the costs 
(excluding publication costs) for conducting a 12-month finding, 
without a proposed rule, ranged from approximately $9,600 for one 
species with a restricted range and involving a relatively 
uncomplicated analysis, to $305,000 for another species that was wide-
ranging and with a complex analysis.
    In FY 1998 and for each fiscal year since then, Congress placed a 
statutory cap on funds which may be expended for listing and critical 
habitat actions (i.e. the Listing Program), equal to the amount 
expressly appropriated for that purpose in that fiscal year. This cap 
was designed to prevent funds appropriated for other ESA functions, or 
for other Service programs, from being used for listing or critical 
habitat actions (see House Report 105-163, 105th Congress, 1st 
Session).
    Beginning in FY 2002, Congress also put in place the critical 
habitat ``subcap,'' which put an upper limit on the Listing Program 
funds that could be

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spent on work related to critical habitat designations for already 
listed species. Recognizing that designation of critical habitat for 
species already listed would consume most of the overall Listing 
Program appropriation, Congress put the subcap in place to ensure that 
some funds would be available to make other listing determinations: 
``The critical habitat designation subcap will ensure that some funding 
is available to address other listing activities'' (H.R. Rep. No. 103, 
107th Cong., 1st Sess. 2001 at 30, 2001 WL 695998). Because the Service 
has had to use virtually the entire critical habitat subcap to address 
court-mandated designations of critical habitat, Congress in effect 
determined, through the listing cap and the critical habitat subcap, 
the amount available for other listing activities.
    Congress also has recognized that the availability of resources was 
the key element in deciding whether there would be a listing proposal 
or a ``warranted but precluded'' finding for a given species. The 
Conference Report accompanying Pub. L. 97-304, which established the 
current statutory deadlines and the ``warranted but precluded'' 
finding, states (in a discussion on 90-day petition findings that by 
its own terms also covers 12-month findings) that the deadlines were 
``not intended to allow the Secretary to delay commencing the 
rulemaking process for any reason other than that the existence of 
pending or imminent proposals to list species subject to a greater 
degree of threat would make allocation of resources to such a petition 
[i.e. for a lower-ranking species] unwise.'' Therefore, in fiscal year 
2004, the outer parameter within which ``expeditious progress'' must be 
measured is that amount of progress that could be achieved by spending 
$3.38 million, which was the amount available in the Listing Program 
appropriation other than the critical habitat subcap (all the critical 
habitat subcap funds were used for designations required by court order 
or court-approved settlement agreements).
    Our process is to make our determinations of preclusion on a 
nationwide basis to ensure that the species most in need of listing 
will be addressed first and also because we allocate our listing budget 
on a nationwide basis. However, through court orders and court-approved 
settlements, federal district courts have mandated that FWS must 
complete certain listing activities with respect to specified species 
and established the schedules for completing those activities. The 
species involved in these court-mandated listing activities are not 
always those that we have identified as being most in need of listing. 
A large majority of the appropriation available for new listings of 
species was consumed by such court-mandated listing activities in FY 
2004, and by ordering or sanctioning these actions the courts 
essentially determined that these were the highest priority actions to 
be undertaken with available funding. Accordingly, in FY 2004, FWS had 
little discretion to determine what listing activities to undertake and 
what species to address. Copies of all of the court orders and 
settlement agreements referred to below are available from the Service 
and are part of the administrative record for these resubmitted 
petition findings.
    On November 10, 2003, the President signed the 2004 Interior and 
Related Agencies Appropriations Act (Pub. L. 108-108), which included 
$3,386,000 for listing activities not related to critical habitat 
designations for species that already are listed. This appropriation 
was fully allocated to fund the following categories of actions in the 
Listing Program: Emergency listings; essential litigation-related, 
administrative, and program management functions; compliance with court 
orders and court-approved settlement agreements requiring that petition 
findings or listing determinations be completed by a specific date; 
section 4 listing actions with absolute statutory deadlines; and high-
priority listing actions. Based on the available funds and their 
allocation for these purposes, no FY 2004 funds were available for 
listing actions for the southern Idaho ground squirrel, sand dune 
lizard, or Tahoe yellow cress. Specific details regarding the 
individual actions taken using the FY 2004 funding, which precluded our 
ability to undertake listing proposals for any of these three candidate 
species, are provided below.
    We note here that the category of ``high-priority listing actions'' 
mentioned above refers to actions for which no timeline has been 
established by a court order or settlement agreement, and that also are 
not subject to a statutory deadline. Our ability to work on such 
listing actions is quite limited. In recent years, our allocation of 
Listing Program funds has included a limited amount of funding 
($100,000) to each Regional office to ensure that the office maintains 
minimal core capacity for listing actions (e.g., tracking the status of 
species to help ensure that an emergency listing action can be taken if 
necessary, participating in work to meet the statutory requirement to 
annually review and make findings on resubmitted petitions). In a 
Region that faces a relatively limited workload in the Listing Program 
with regard to deadlines resulting from court orders or settlement 
agreements, and a relatively limited workload related to meeting 
statutory deadlines, some of this ``capability'' funding may be 
available to address high priority listing actions. However, in most 
Regions, including the Regions with responsibility for listing actions 
involving the southern Idaho ground squirrel, Tahoe yellow cress, and 
sand dune lizard, the limited amount of capability funding to Regional 
offices included in an allocation is used for work associated with 
supporting listing actions related to court orders or settlement 
agreements, and for meeting statutory deadlines (i.e., there are no 
funds available for high priority listing actions).
    The overall Listing Program situation in FY 2005 is similar to that 
in FY 2004. For FY 2005, Congress recently appropriated $4,043,000 for 
listing actions other than critical habitat for already listed species 
(Pub. L. 108-447, signed on December 8, 2004). The Service is in the 
process of preparing the allocation of this appropriation. We 
anticipate that the $4,043,000 will be fully allocated to fund the 
following listing actions: Any emergency listings; essential 
litigation-related, administrative, and program management functions; 
compliance with court orders or court-approved settlement agreements 
requiring petition findings or listing determinations; and high-
priority listing actions. As was the case in FY 2004, during the 
current fiscal year, we will issue proposed listing rules for the 
highest priority candidate species only if doing so does not jeopardize 
our ability to comply with court orders, court-approved settlement 
agreements, or unqualified statutory deadlines. Consequently, at this 
time we do not anticipate that we will have any FY 2005 funds available 
to work on proposals to list the southern Idaho ground squirrel, sand 
dune lizard, or Tahoe yellow cress, and consequently we continue to 
find that proposals to list these species are warranted but precluded. 
We note also that all of the actions that demonstrate our expeditious 
progress on listing (see below) contribute to the preclusion of work on 
listing proposals for these three candidate species.
    In addition to being precluded by lack of available funds, work on 
proposed rules to list the southern Idaho ground squirrel, Tahoe yellow 
cress, and sand dune lizard also is precluded by work on candidate 
species with higher listing

[[Page 77170]]

priorities. For the southern Idaho ground squirrel and Tahoe yellow 
cress, which each have an LPN of 6, this means that the 210 candidate 
species with a LPN of 1 through 5 are of higher priority. The sand dune 
lizard, with an LPN of 2, has a higher priority than the southern Idaho 
ground squirrel and Tahoe yellow cress. However, there are 12 other 
candidate species with this same LPN in the Southwest Desert Region, 
which has the lead for the sand dune lizard. Of these 12 species, 8 
have been candidate species longer than the sand dune lizard and, thus, 
we likely would work on proposed listing determinations for these 
species prior to working on a proposal for the sand dune lizard. 
Additionally, there are more than 70 candidate species nationwide that 
have LPNs of 2, and thus have the same or higher priority (based on 
length of time on the candidate list) than the sand dune lizard.
    As explained above, part of the basis for making a warranted-but-
precluded finding is that expeditious progress is being made to add 
qualified species to the Lists. Our progress in FY 2004 includes work 
in the following categories: (1) Evaluation of the potential need for 
emergency listing of 1 species; (2) preparation and publication of 
final listing determinations involving 10 species; (3) preparation and 
publication of a proposed listing action for 1 species; (4) preparation 
of proposed or final listing actions (not yet completed so not yet 
published) for 6 species; (5) and work on petition findings for 54 
species. Specific information regarding each of these categories for FY 
2004 is provided below.
    (1) Emergency listings--We are currently working on a proposed rule 
to list the Miami blue butterfly. The Miami blue butterfly is 
restricted to one isolated population on Bahia Honda Key in Florida and 
is threatened by the combined influences of catastrophic environmental 
events, habitat destruction or modification, mosquito control 
activities, potential illegal collection, potential loss of genetic 
heterogeneity, and potential predation. Work on assessing the status of 
the species and preparing a listing rule originally was approved for 
funding and was initiated in FY 2004 because at the time, the Region 
considered that it was an emergency. When senior officials in 
Washington reviewed the draft emergency listing material, they did not 
concur that emergency listing action was needed (because of an existing 
captive-bred population). However, because a review of the species had 
been conducted and the emergency rule already was drafted, and because 
it is a high-priority species (with imminent threats of a high 
magnitude, which is the equivalent of a LPN of 3 for this subspecies), 
continuing work on the proposed listing rule was approved. At that 
point, the small amount of resources required to complete the proposed 
rule would not have made a significant contribution to issuing a 
proposed rule to list a species with an LPN of 2. Moreover, failure to 
continue work to complete the proposed rule would have resulted in a 
significant waste of resources, as the work already completed would to 
some degree go stale over time and thus would have to be re-done.
    (2) Final listing determinations--We prepared and published in the 
Federal Register final listing determinations for ten species, all of 
which involved deadlines mandated by court orders or court-approved 
settlement agreements. These included final regulations listing eight 
species, which are: Rota bridled white-eye (69 FR 3022; January 22, 
2004; LPN = 2), Santa Catalina Island fox, Santa Rosa Island fox, San 
Miguel Island fox, and Santa Cruz Island fox (69 FR 10335 for all four 
fox subspecies; March 5, 2004; LPN = 3); two plant species (Nesogenes 
rotensis and Osmoxylon mariannense) from the Commonwealth of the 
Northern Mariana Islands (69 FR 18499; April 8, 2004; LPN = 1 and 2, 
respectively); and the California tiger salamander (69 FR 47211; August 
4, 2004; LPN = 3). (We note here that the work on the salamander 
included funding for the designation of critical habitat for the 
central California distinct population segment (DPS). The critical 
habitat subcap pertains to critical habitat designations for species 
already listed; we may use listing funds for critical habitat 
designation work conducted in conjunction with a listing action, as was 
the case with this DPS.) Also included in this category of final 
listing actions is the work involved in FY 2004 in completing the 
preparation of, and publishing, final listing determinations for the 
slickspot peppergrass (69 FR 3094; January 22, 2004; it had been an LPN 
= 2), and Tabernaemontana rotensis (a plant species with LPN = 2); the 
determination for the latter species was included as part of the 
Federal Register publication of the final rules listing the two plant 
species from the Commonwealth of the Northern Mariana Islands, 
mentioned above (69 FR 18499).
    (3) We prepared and published a proposed regulation to list the 
southwest Alaska distinct population segment (DPS) of the northern sea 
otter, which has an LPN = 3 (69 FR 6600; February 11, 2004)). This 
population of northern sea otter occurs in nearshore locations from 
Attu Island in the west to Kamishak Bay in the east, including waters 
along the Aleutian Islands, the Alaska Peninsula, and the Kodiak 
archipelago. Although its range has not been curtailed, this population 
has declined by 56-68 percent since the mid-1980's and the decline 
shows no evidence of abating. The cause of the decline is not known, 
but predation by killer whales (Orcinus orca) has been hypothesized 
(see proposed rule for additional information). This proposal was not 
the result of a deadline established by a court order or a court-
approved settlement agreement. Rather, this was the highest priority 
listing action for the Alaska Region. (Initially we determined that the 
Aleutian Islands DPS of the northern sea otter was a candidate with LPN 
= 3 (66 FR 54807), and subsequently determined that the DPS encompasses 
southwest Alaska.) The Alaska Region generally has not faced the 
relatively heavy Listing Program workload experienced by several other 
Regions, and consequently was able to use their limited Regional office 
capability funding in FY 2004 to support the completion of this 
proposed listing regulation. We could not have utilized this capability 
funding to complete listing actions in other Regions without 
eliminating the ability of this Region to monitor the status of 
candidate species and address any emergency situations that might 
arise.
    (4) We funded work on proposed or final listing actions for 6 
species for which work was not completed in FY 2004. This included work 
on final listing actions for the Sacramento Mountains checkerspot 
butterfly, the Mariana fruit bat (LPN = 3), and the southwest Alaska 
DPS of the northern sea otter (LPN = 3). It also included work on 
proposed listing actions for the boreal toad (LPN = 3), Salt Creek 
tiger beetle (LPN = 3), and Miami blue butterfly. The work on all these 
species, except on the northern sea otter (see (3) above) and Miami 
blue butterfly (see (1) above), was in response to a court order or a 
court-approved settlement agreement.
    (5) We funded work on 54 petition findings. This involved 90-day 
findings, 12-month findings, and findings on resubmitted petitions. In 
some instances, the work has been based on meeting deadlines 
established by court order or by settlement agreements. In other 
instances, the work has been related to meeting statutory deadlines. 
All 12-month findings are subject to an unqualified statutory deadline. 
With regard to 90-day findings, we note that

[[Page 77171]]

the decision in Biodiversity Legal Foundation v. Badgley, 309 F. 3d 
1166 (9th Cir. 2002), held that the Act requires that 90-day petition 
findings (i.e., the initial finding as to whether a petition contains 
substantial information, which the Act directs us to make within 90 
days of receipt of a petition, if practicable) must be made no later 
than 12 months after receipt of the petition, regardless of whether it 
is practicable to do so. Thus, all 90-day findings are arguably subject 
to an absolute statutory deadline. As a result of this ruling, which 
changed our interpretation of section 4(b)(3) of the Act, we have been 
working on addressing petition findings on most or all of the 
outstanding petitions for those species that we have not previously 
determined to warrant candidate status.
    Some petition findings are ``complete'' actions. This includes 12-
month petition findings in which we determine that listing was not 
warranted and 90-day petition findings in which we determine that the 
petition did not present substantial information. In these cases, our 
listing work is complete.
    In FY 2004, we funded work and published 10 petition findings that 
involved the following species: wolverine (not-substantial 90-day 
finding) (68 FR 60112; October 21, 2003); eastern subspecies of the 
greater sage-grouse (not-substantial 90-day finding) (69 FR 933; 
January 7, 2004); Midvalley fairy shrimp (not-warranted 12-month 
finding) (69 FR 3592; January 26, 2004); Cymopterus deserticola (desert 
cymopterus--substantial 90-day finding) (69 FR 6240; February 10, 
2004); fisher (West coast DPS) (warranted-but-precluded 12-month 
finding) (69 FR 18769; April 8, 2004); Florida black bear (partial 
remand of not-warranted 12-month finding (69 FR 2100; January 14, 
2004); greater sage-grouse (substantial 90-day finding; ) (69 FR 21484; 
April 21, 2004); Colorado river cutthroat trout (not-substantial 90-day 
finding) (69 FR 21151; April 20, 2004); New England cottontail 
(substantial 90-day finding) (69 FR 39395; June 30, 2004); and black-
tailed prairie dog (not-warranted 12-month resubmitted petition 
finding) (69 FR 51217; August 18, 2004). The work on all these species, 
with the following exceptions, was in response to court orders or 
court-approved settlement agreements. The New England cottontail was 
the highest priority listing action for the Northeast Region. The 
Northeast Region generally has not faced the relatively heavy Listing 
Program workload experienced by several other Regions, and consequently 
was able to use their limited Regional office capability funding in FY 
2004 to support the completion of this petition finding. We could not 
have utilized this capability funding to complete listing actions in 
other Regions without eliminating the ability of this Region to monitor 
the status of candidate species and address any emergency situations 
that might arise. Work on the greater sage-grouse was a high priority 
action since we were already working on sage-grouse issues related to 
the court-ordered petition finding for the eastern sage-grouse. Work on 
the black-tailed prairie dog was a high priority listing action; we had 
previously funded much of the work on this species in 2000 when we made 
the initial 12-month warranted-but-precluded petition finding and in 
2001-2003 when we made resubmitted petition findings that listing was 
still warranted but precluded. The Mountain-Prairie Region was able to 
use some of their capability funds from FY 2004 to make the not-
warranted petition finding for the black-tailed prairie dog.
    The allocated funds also supported work on petition findings that 
were not completed in FY 2004. These included work on findings for the 
following 4 species: white-tailed prairie dog (90-day finding), greater 
sage-grouse (12-month finding), Bromus arizonicus (Arizona brome 90-day 
finding), and Nasselia cernua (nodding needlegrass 90-day finding). 
Work on the white-tailed prairie dog was in response to a court order, 
while the work on the sage-grouse was a high priority listing action 
with a statutory deadline (see above). Initial work on the statutorily-
required petition findings for Arizona brome and nodding needlegrass 
was started using a small amount of capability funds that was left at 
the end of the fiscal year; this was a high priority for the Pacific 
Region.
    In addition, we completed resubmitted petition findings required by 
statute for 40 petitioned species that are candidates. We published 
these findings on May 4, 2004, as part of the 2003 Candidate Notice of 
Review (CNOR) (69 FR 24876). Since we had identified many of these 
species as candidates prior to receiving a petition to list them, we 
had already assessed their status using funds from our Candidate 
Conservation Program (a separate budget item within the Endangered 
Species Program).
    Our anticipated progress in FY 2005 includes work in the following 
categories: (1) Preparation and publication of final listing actions 
for 10 species; (2) preparation and publication of proposed listing 
actions for 3 species; (3) and work on petition findings for 11 species 
and resubmitted petition findings for 268 candidate species. Specific 
information regarding each of these categories for FY 2005 is provided 
below. We note also that Regions will continue to monitor the status of 
candidates and prepare emergency listing packages as needed.
    (1) We are funding work on the final listing determinations for the 
following species: Mariana fruit bat, southwest Alaska DPS of the 
northern sea otter, boreal toad, Gila chub, Salt Creek tiger beetle, 
Sacramento Mountains checkerspot butterfly, and four Southwestern 
invertebrates (Koster's tryonia snail, Pecos assiminea snail, Roswell 
springsnail, and Noel's amphipod). All of these final listing 
determinations are responding to court orders or court-approved 
settlement agreements, with the exception of the work on the final 
listing determination for the southwest Alaska DPS of the northern sea 
otter (see above for explanation on why this work was funded). Now that 
the sea otter is proposed for listing, a final listing determination is 
subject to an absolute statutory deadline.
    (2) We are funding proposed listing determinations for the boreal 
toad and the Salt Creek tiger beetle, pursuant to court-approved 
settlement agreements. We also are funding completion of work on the 
proposed listing determination for the Miami blue butterfly (see above 
background information regarding work in FY 2004).
    (3) We also are funding work on petition findings for the following 
species: white-tailed prairie dog (not-substantial 90-day finding 
completed and published on November 9, 2004 (69 FR 64889)), Queen 
Charlotte goshawk (remanded not-warranted 12-month finding), greater 
sage-grouse (entire range) (12-month finding), Cicurina cueva (cave 
spider--90-day finding), four species of Pacific lamprey (90-day and 
12-month findings), Cymopterus deserticola (desert cymopterus--12-month 
finding), (12-month finding), Dalea tentaculoides (Gentry's 
indigobush--90-day and 12-month findings), Ptilagrostis porteri (porter 
feathergrass--90-day and 12-month findings). The work on all of the 
above species is per court orders or court-approved settlement 
agreements, except for work on the greater sage-grouse (which is needed 
to meet the statutory deadline). We are also funding work on initial 
and resubmitted petition findings for 268 petitioned candidate species. 
These initial and resubmitted petition findings are required by statute 
and will be published as part of the next CNOR, which we anticipate 
completing in early 2005. Because the majority of these

[[Page 77172]]

species were already candidate species prior to our receipt of a 
petition to list them, we had already assessed their status using funds 
from our Candidate Conservation Program. We also continue to monitor 
the status of these species through our Candidate Conservation Program. 
The cost of updating the species assessment forms and publishing the 
joint publication of the CNOR and resubmitted petition findings is 
shared between the Listing Program and the Candidate Conservation 
Program.
    As with our ``precluded'' finding, ``expeditious progress'' is a 
function of the resources that are available and the competing demands 
for those funds. As discussed above, the funds in the Listing Program 
that would be otherwise available for adding other qualified species to 
the Lists in FY 2004 and FY 2005 have been spent or must be spent on 
complying with court orders and court-approved settlement agreements to 
designate critical habitat and make petition findings, court orders and 
court-approved settlement agreements to make final listing 
determinations for other species, a few high-priority Service-initiated 
listing determinations, essential litigation support, and 
administrative and management tasks.
    Because virtually all of the money to add qualified species to the 
list is consumed in complying with court orders or court-approved 
settlement agreements requiring petition findings or listing 
determinations, and essential litigation-related, administrative, and 
program management functions related to these findings and 
determinations, we have endeavored to make our listing actions as 
efficient and timely as possible, given the requirements of the 
relevant law and regulations, and constraints relating to workload and 
personnel. We are continually considering ways to streamline processes 
or achieve economies of scale, such as by batching related actions 
together. Given our limited budget for implementing section 4 of the 
Act, these actions collectively constitute expeditious progress.

Summary of Petitioned Candidates

    Here we present summaries of why the southern Idaho ground 
squirrel, sand dune lizard, and Tahoe yellow cress continue to warrant 
listing, and we specify the listing priority number that we have 
assigned to each species. More complete information, including 
references, is available in the species assessment form for each 
species. You may obtain a copy of these forms from the Regional Office 
having the lead for the species, or from the Fish and Wildlife 
Service's Internet Web site: http://endangered.fws.gov/ candidates/
index.html.
    Southern Idaho ground squirrel (Spermophilus brunneus endemicus)--
The following summary is based on information contained in our files 
and the petition received on January 29, 2001. During the past 30 
years, a population decline of the southern Idaho ground squirrel has 
occurred. The southern Idaho ground squirrel occupies only 44 percent 
of its historical range and within its range, populations have declined 
precipitously. Scientists attribute the decline to invasive nonnative 
plants associated with a change in the fire frequency and the lack of 
reclamation or restoration of habitat by various land management 
agencies and private landowners.
    Even though habitat degradation is pervasive in many areas of this 
species' range, suitable habitat areas that can support southern Idaho 
ground squirrels still persist. Conservation and habitat rehabilitation 
actions have begun in some areas, and in 2001 and 2002, over 100 
squirrels were captured from the Weiser Golf Course (the largest known 
colony site) and translocated to suitable habitat on lands covered by a 
Candidate Conservation Agreement with Assurances. Survey results in 
2002 and 2003 found a total of 75 new active population sites.
    The magnitude of threats to this species has been reduced due to 
the significant conservation efforts that have been implemented and are 
ongoing (described in the species assessment form) and because 
additional populations have recently been found. While there is still 
concern for genetic constriction and isolation due to generally low 
numbers of individuals at existing sites, natural dispersal is 
occurring at some sites, and translocation efforts are being 
implemented each year. Additionally, to reflect that the existing 
threats meet the definition of ``imminent'' (i.e., they are ongoing), 
we are changing the listing priority number from a 6 to a 9.
    Sand dune lizard (Sceloporus arenicolus)--The following summary is 
based on information in our files and the petition received on June 6, 
2002. The sand dune lizard is endemic to a small area in southeastern 
New Mexico (Chaves, Eddy, Lea, and Roosevelt Counties) and adjacent 
west Texas (Andrews, Crane, Ward, and Winkler Counties). Within this 
area, the known occupied and potentially occupied habitat is only 1,697 
square kilometers (655 square miles) in New Mexico, and an unknown 
amount in west Texas. The lizard's distribution is localized and 
fragmented (i.e., known populations are separated by vast areas of 
unoccupied habitat), and the species is restricted to sand dune 
blowouts associated with active sand dunes and shinnery oak (Quercus 
harvardii) and scattered sandsage (Artemisia filifolia) vegetation. 
Sand dune lizards are not found at sites lacking shinnery oak dune 
habitat.
    Extensive surveys within New Mexico, conducted in conjunction with 
a 5-year study, documented sand dune lizards at only half of the sites 
surveyed. It is clear that shinnery oak removal (e.g., by treating with 
the herbicide Tebuthiuron for livestock range improvements) results in 
dramatic reductions and extirpation of sand dune lizards. Scientists 
repeatedly confirmed the extirpation of sand dune lizards from areas 
with herbicide treatment to remove shinnery oak. In 1999, biologists 
estimated that about 25 percent of the total sand dune lizard habitat 
in New Mexico had been eliminated in the previous 10 years. The 
population of sand dune lizards has also been affected by oil and gas 
field development. An estimated 50 percent decline in sand dune lizard 
populations can be expected in areas with approximately 25 to 30 oil 
and/or gas wells per section. The distribution of sand dune lizards is 
localized and fragmented, and this species is a habitat specialist. 
Therefore, impacts to its habitat will most likely greatly decrease 
populations. If current herbicide application continues and oil and gas 
development progresses as expected, the magnitude of threat to sand 
dune lizards will increase. Continued pressure to develop oil and gas 
resources in areas with sand dune lizards poses an imminent threat to 
the species. Therefore, we continue to assign this species a listing 
priority number of 2.
    Rorippa subumbellata (Tahoe yellow cress)--The following summary is 
based on information in our files and the petition received on February 
8, 2001. Tahoe yellow cress is a small perennial herb known only from 
the shores of Lake Tahoe in California and Nevada. Data collected over 
the last 25 years suggest a relationship between lake level and site 
occupancy by Tahoe yellow cress. The data generally indicate that 
species occurrence fluctuates yearly as a function of both lake level 
and the amount of exposed habitat. Records kept since 1900 indicate a 
preponderance of years with high lake levels that would isolate and 
reduce Tahoe yellow cress occurrences at higher beach elevations. From 
the standpoint of the species, less favorable peak years have occurred 
almost twice as often as more favorable low-level

[[Page 77173]]

years. In addition, there has been widespread and intensive use of the 
shorezone since European settlement. Today, shorezone conditions are 
influenced by heavy recreational use, boating, construction of piers 
and boat launches, and dam operations that control lake elevation.
    Annual surveys are conducted to determine population numbers, site 
occupancy, and general disturbance regimes. During the 2003 annual 
survey period, the lake level was approximately 6,224 ft (1,898 m). 
This was the third consecutive year of low water. The survey located 
Tahoe yellow cress at 45 of the 72 sites surveyed (65 percent 
occupied), up from 15 sites (19 percent occupied) in 2000 when the lake 
level was high at 6,228 ft. Approximately 25,200 stems were counted or 
estimated in 2003, whereas during the 2000 annual survey, the estimated 
number of stems was 4,590. Over the past 3 years, the survey effort has 
increased considerably, largely due to our elevation of this species to 
candidate status.
    Many Tahoe yellow cress sites are intensively used for commercial 
and public purposes and are subject to various activities such as 
erosion control, marina developments, pier construction, and 
recreation. The U.S. Forest Service, California Tahoe Conservancy, and 
California Department of Parks and Recreation have management programs 
for Tahoe yellow cress that include monitoring, fenced enclosures, and 
transplanting efforts when funds and staff are available. Public 
agencies (including the Service), private landowners, and environmental 
groups collaborated to develop a conservation strategy, coupled with a 
Memorandum of Understanding/Conservation Agreement. The conservation 
strategy, completed in 2003, contains goals and objectives for recovery 
and survival and a research and monitoring agenda, and will serve as 
the foundation for an adaptive management program.
    Because of the continued commitments to conservation demonstrated 
by regulatory and land management agencies participating in the 
conservation strategy, we have determined the threats to Tahoe yellow 
cress from various land uses have been reduced from a high magnitude to 
a moderate magnitude. However, since these threats are still ongoing, 
they are imminent. Thus, based on the change in magnitude of threats, 
we are changing the LPN from a 2 to an 8.

Request for Information

    We request you submit any further information on these three 
species as soon as possible or whenever it becomes available. We are 
particularly interested in any information:
    (1) Recommending areas that we should designate as critical habitat 
for a species, or indicating that designation of critical habitat would 
not be prudent for a species;
    (2) Documenting threats to any of these three species;
    (3) Describing the immediacy or magnitude of threats facing these 
species; and
    (4) Pointing out taxonomic or nomenclature changes for any of the 
species.
    Submit your comments on southern Idaho ground squirrel or Rorripa 
subumbellata (Tahoe yellow cress) to the Regional Director (TE), U.S. 
Fish and Wildlife Service, Eastside Federal Complex, 911 NE. 11th 
Avenue, Portland, Oregon 97232-4181 (503/231-6158).
    Submit your comments on the sand dune lizard to the Regional 
Director (TE), U.S. Fish and Wildlife Service, 500 Gold Avenue SW., 
Room 4012, Albuquerque, New Mexico 87102 (505/248-6920).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public inspection. Individual 
respondents may request that we withhold their home addresses from the 
public record, which we will honor to the extent allowable by law. In 
some circumstances, we can also withhold from the public record a 
respondent's identity, as allowable by law. If you wish for us to 
withhold your name and/or address, you must state this request 
prominently at the beginning of your comments. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Authority

    This notice is published under the authority of the Endangered 
Species Act (16 U.S.C. 1531 et seq.).

    Dated: December 17, 2004.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-28168 Filed 12-23-04; 8:45 am]
BILLING CODE 4310-55-P