[Federal Register Volume 71, Number 240 (Thursday, December 14, 2006)]
[Proposed Rules]
[Pages 75215-75220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21259]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Remove the Uinta Basin Hookless Cactus From the List of 
Endangered and Threatened Plants; 90-Day Finding on a Petition To List 
the Pariette Cactus as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of two 90-day petition findings and initiation of 5-year 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce two 
90-day findings made under the Endangered Species Act of 1973, as 
amended (Act). One finding concerns a petition to remove Uinta Basin 
hookless cactus (Sclerocactus glaucus) from the List of Endangered and 
Threatened Plants, and the other a petition to list Pariette cactus 
(Sclerocactus brevispinus) as a threatened or endangered plant. Until 
recently, these species were considered one taxonomic entity, so the 
petitions are being considered concurrently in this notice.
    We find the petition to remove Sclerocactus glaucus from the List 
of Endangered and Threatened Plants does not present substantial 
information indicating that the petitioned action may be warranted, and 
we are not initiating a further status review in response to this 
petition. However, in order to determine the appropriate status of S. 
glaucus given recent taxonomic revisions to this species, we are 
initiating a 5-year review under section 4(c)(2)(A) of the Act. Through 
this action, we encourage all interested parties to provide us 
information regarding the status of, and any potential threats to, this 
species as it was originally listed (i.e., information pertaining to S. 
glaucus, S. brevispinus, and S. wetlandicus).
    We find the petition to list Sclerocactus brevispinus presents 
substantial information indicating that the petitioned action may be 
warranted, and we are initiating a further status review in response to 
this petition. Through this action, we encourage all interested parties 
to provide us information regarding the status of, and any potential 
threats to, this species.

DATES: The findings announced in this document were made on December 
14, 2006. Comments and information must be submitted on or before 
February 12, 2007.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of the following methods:
    (1) You may mail or hand-deliver written comments and information 
to Field Supervisor, Utah Ecological Services Office, U.S. Fish and 
Wildlife Service, 2369 West Orton Circle, Suite 50, West Valley City, 
Utah 84119.
    (2) You may submit your comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit comments by 
e-mail, see the ``Public Comments Solicited'' section of this notice. 
In the event that our Internet connection is not functional, please 
submit your comments by mail, hand-delivery, or fax.
    (3) You may fax your comments to (801) 975-3331.

FOR FURTHER INFORMATION CONTACT: Larry England, U.S. Fish and Wildlife 
Service, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119 
(telephone 801-975-3330; fax 801-975-3331; e-mail [email protected]). Additional information is available at http://mountain-prairie.fws.gov/species/plants/threecacti/index.htm.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information to indicate that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files at the time we make the determination. 
To the maximum extent practicable, we are to make this finding within 
90 days of our receipt of the petition, and publish our notice of this 
finding promptly in the Federal Register.
    Our standard for substantial information with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
information was presented, we are required to promptly commence a 
status review of the species.
    In making these findings, we relied on information provided by the 
petitioners and evaluated that information in accordance with 50 CFR 
424.14(b). Our 90-day finding process under section 4(b)(3)(A) of the 
Act and section 424.14(b) of the regulations is limited to a 
determination of whether the information in the petition meets the 
``substantial information'' threshold.
    On October 11, 1979, we listed Sclerocactus glaucus as a threatened 
species (44 FR 58868) based on threats from overcollection for 
horticultural purposes, energy development (including oil, gas, and 
potential oil-shale development), grazing, off-road vehicle (ORV) use, 
and water development (44 FR 58869). A recovery plan for the species 
was finalized on September 27, 1990. Revisions in the taxonomy of S. 
glaucus began in 1989 (Hochstatter 1989, 1993; Heil and Porter 1994; 
Porter et al. 2000; Welsh et al. 2003), and by 2004, the Flora of North 
America recognized the plant S. glaucus that we listed in 1979 as three 
distinct species: S. glaucus, S. wetlandicus, and S. brevispinus.
    In our February 28, 1996, Candidate Notice of Review (CNOR) (61 FR 
7596), we included Sclerocactus brevispinus as a candidate species. 
Retraction of S. brevispinus as a candidate species occurred in our 
September 19, 1997, CNOR (62 FR 49401) with the following 
justification: ``Because S. brevispinus was a part of S. glaucus when 
the latter species was listed as threatened, those plants now referred 
to as S. brevispinus are still considered to be listed as threatened. 
Therefore, including S. brevispinus as a candidate in the 1996 notice 
of review was inappropriate and unnecessary. To address the recent 
change in taxonomy, a proposed rule to add S. brevispinus to the List 
of Endangered and Threatened Plants will be published in the Federal 
Register at a later time.''
    On February 3, 1997, we received a petition from the National 
Wilderness Institute to remove Sclerocactus glaucus from the List of 
Endangered and Threatened Plants on the basis of ``original data 
error,'' but higher priority actions have precluded addressing this 
petition to date. On April 18, 2005, the Center for Native Ecosystems 
and the Utah Native Plant Society petitioned us to designate S. 
brevispinus as threatened or endangered and to designate critical 
habitat. On October 10, 2005, the same parties filed a complaint in the 
U.S.

[[Page 75216]]

District Court for the District of Colorado alleging that we were in 
violation of the Act because we had failed to complete a 90-day finding 
on their petition. In order to settle the case, we agreed to submit to 
the Federal Register a completed 90-day finding by December 8, 2006, 
and to complete, if applicable, a 12-month finding by September 14, 
2007.

Species Information

    Recent genetic studies (Porter et al. 2000, pp. 14, 16), common 
garden experiments (Hochstatter 1993, pp. 94, 98, 100; Welsh et al. 
2003, p. 79), and a reevaluation of the morphological characteristics 
of Sclerocactus glaucus (Heil and Porter 2004, pp. 200-201; Hochstatter 
1993, pp. 91, 95, 99) have led to a reclassification of this species. 
The recently published Flora of North America (Heil and Porter 2004, 
pp. 197-207) now recognizes 15 species in the genus Sclerocactus, 
including S. glaucus, S. brevispinus, and S. wetlandicus, which 
collectively were recognized as S. glaucus when the species was listed 
in 1979 (44 FR 58868). Of importance is the description of S. 
wetlandicus (Hochstatter 1993, pp. 91-92), which now comprises the bulk 
of the former S. glaucus range in Utah. The current S. glaucus species 
is endemic to western Colorado, and S. brevispinus (the third species 
formerly recognized as S. glaucus) is a morphologically unique species 
that occurs in the Pariette Draw drainage in the central Uinta Basin, 
Utah. This cactus is much smaller than either S. wetlandicus or S. 
glaucus, retaining the vegetative characteristics of juvenile S. 
wetlandicus individuals in adult flowering plants. In 1979, when the 
species was listed, these smaller individuals were thought to represent 
only ecotypic variations of S. glaucus. S. brevispinus has been named 
S. wetlandicus var. ilseae (Hochstatter 1993, pp. 95-97), S. whipplei 
var. ilseae (Welsh et al. 2003, p. 79), and S. brevispinus (Heil and 
Porter 1994, p. 26), but is referred to herein as S. brevispinus.
    Our review of information presented in the petition to remove 
Sclerocactus glaucus from the List of Endangered and Threatened Plants 
is specific to the taxonomy of the species at the time of listing, 
which included S. glaucus, S. wetlandicus, and S. brevispinus as one 
species. We refer to these three species as the S. glaucus complex in 
our review of the information presented in that petition. Our review of 
the information presented in the petition to list S. brevispinus as 
threatened or endangered refers specifically to that species.
    Sclerocactus glaucus and Sclerocactus wetlandicus are represented 
by small ball or barrel-shaped cacti usually with straight (i.e., 
hookless) central spines, solitary, ovoid to nearly globular succulent 
stems approximately 4 to 18 centimeters (cm) (1.5 to 7 inches (in.)) 
tall (exceptional plants 30 cm (12 in.) tall), and generally pinkish 
flowers. Flowering occurs from April to May and fruiting occurs from 
May to June. The fruit is barrel-shaped, 0.8 to 1.3 cm (0.3 to 0.5 in.) 
long, and about 0.8 cm (0.3 in.) in diameter.
    Sclerocactus brevispinus has succulent unbranched stems usually 2.5 
to 8 cm (1.0 to 3.1 in.) tall that vary from depressed spheric to 
shortened cylindrical in shape, and its flowers have a broad, brownish 
midstripe and pink to purple margins. The fruit is shortened, barrel-
shaped, reddish or reddish grey when ripe, 0.7 to 1.2 cm (0.3 to 0.5 
in.) wide, and 0.9 to 2.5 cm (0.4 to 1.0 in.) long. More complete 
species descriptions can be found in Heil and Porter (1994, pp. 25-27) 
and Hochstatter (1993, pp. 91, 95, and 99).
    The currently known distribution of the three cactus species 
includes Federal, State, Tribal, and private lands in Uintah, Duchesne, 
and Carbon Counties, Utah, and in Mesa, Delta, Garfield, and Montrose 
Counties, Colorado. Eight populations were known to occur in a five-
county area in western Colorado and eastern Utah when the species was 
listed in 1979 (44 FR 58869, October 11, 1979). Two small outlier 
populations near Gateway, Colorado, and Bonanza, Utah, have since been 
identified (Heil and Porter 1993, pp. 18-45; Colorado Natural Heritage 
Inventory (CNHI) 2006, pp. 2-3; Utah Natural Heritage Inventory (UNHI) 
2006, pp. 2-3). Ninety percent of the total population of the three 
species occurs on Bureau of Land Management (BLM) lands, and the 
remaining 10 percent is located on State of Utah and private lands (44 
FR 58869, October 11, 1979).
    S. glaucus and S. wetlandicus are generally found on coarse soils 
derived from cobble and gravel river and stream terrace deposits, or 
rocky surfaces on mesa slopes at 1,350 to 1,900 meters (m) (4,400 to 
6,200 feet (ft)) in elevation (Heil and Porter 1993, pp. 14-16; Heil 
and Porter 1994, pp. 25-26; Service 1990, p. 7; Rechel et al. 1999, p. 
2). S. brevispinus grows on fine soils in clay badlands derived from 
the Uinta formation (Service 1990, p. 7).
    Population estimates for the three species have been variously 
reported between approximately 4,872 and 10,000 individuals in 
Colorado, and 10,000 and 16,828 individuals in Utah (Heil and Porter 
1993, pp. 29, 45; Service 1990, p. 4; CNHI 2006, p. 2; UNHI 2006). The 
population of S. brevispinus is currently estimated at 3,795 
individuals (BLM 1985). Recovery criteria for S. glaucus (which 
includes all three cactus species) include a total population of 30,000 
individuals in 6 separate populations of at least 2,000 individuals 
each with formal management designations protecting the habitat for at 
least 4 of these populations over the long term. To date these criteria 
have not been met.

Threats Analysis

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth procedures for adding species to, or removing species 
from, the Federal List of Endangered and Threatened Wildlife and 
Plants. A species may be determined to be an endangered or threatened 
species due to one or more of the five factors described in section 
4(a)(1) of the Act: (A) Present or threatened destruction, 
modification, or curtailment of habitat or range; (B) overutilization 
for commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) inadequacy of existing regulatory mechanisms; 
or (E) other natural or manmade factors affecting its continued 
existence. In making our findings, we evaluated whether threats to the 
Sclerocactus glaucus complex, as they were presented in the National 
Wilderness Institute's petition, and in relation to other information 
available in our files at the time of the petition reviews, may pose a 
concern with respect to the species' survival. We further evaluate 
threats to S. brevispinus as presented in the petition filed by the 
Center for Native Ecosystems and the Utah Native Plant Society in a 
separate section following our finding on the S. glaucus complex.

Uinta Basin Hookless Cactus (the Sclerocactus glaucus complex)

    The National Wilderness Institute's petition to remove the 
Sclerocactus glaucus complex from the Federal List of Endangered and 
Threatened Plants cited our December 1990 Report to Congress that 
stated, ``[P]opulation and habitat inventories have identified a 
greater abundance, range distribution, and additional populations of 
this species than originally known. Evaluation will be undertaken to 
consider delisting.'' The petition further states that ``information 
already in the possession of the USFWS demonstrates * * * [that] there 
is not a justifiable basis for inclusion of this plant'' on the List of 
Endangered and Threatened

[[Page 75217]]

Plants and suggests that we should delist the S. glaucus complex due to 
original data error. The petition provided no information about the 
status or threats to the species. Information in our files 
substantiates our description of the S. glaucus complex at the time of 
the listing in 1979. In addition, the threats identified in the 1979 
listing rule remain relevant to this species complex. Therefore, the 
petition fails to present evidence to support the allegation of data 
error.

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

    The petition did not provide any information or list any habitat-
related threats to the Sclerocactus glaucus complex. Nor did it provide 
any information that the threats have been successfully addressed such 
that they are no longer affecting the status of the species. Neither 
did the petition provide any evidence that the species is recovered. 
Based on the petition and information available in our files for this 
factor, we find that the petition does not present substantial 
information indicating that the petitioned action may be warranted.

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

    The petition did not provide any information or list any threats to 
the Sclerocactus glaucus complex from overutilization for commercial, 
recreational, scientific, or educational purposes. Nor did it provide 
any documentation that the species is no longer facing threats in this 
area. Based on the petition and information available in our files for 
this factor, we find that the petition does not present substantial 
information indicating that the petitioned action may be warranted.

C. Disease and Predation

    The petition did not provide any information or list any threats to 
the Sclerocactus glaucus complex from disease or predation. Our final 
listing rule concluded that disease and predation were not factors 
impacting the extinction probability of the S. glaucus complex (44 FR 
58869, October 11, 1979).

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition did not provide any information regarding the adequacy 
of regulatory mechanisms to protect the S. glaucus complex should it be 
delisted. We find that the petition does not present substantial 
information indicating that the petitioned action may be warranted.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The petition did not provide any information or list any threats to 
the Sclerocactus glaucus complex that may result from other natural or 
manmade factors. Our final listing rule did not identify any natural or 
manmade factors affecting the species other than those discussed above 
(44 FR 58869, October 11, 1979.

Finding

    We have reviewed the information provided in the National 
Wilderness Institute's petition. The information was very sparse. The 
petition relied solely on a Service budget document from 1993 that 
listed the Uinta Basin hookless cactus as a candidate for delisting. 
After this review and evaluation, we find the petition does not present 
substantial scientific information to indicate that removing the S. 
glaucus complex from the Federal List of Endangered and Threatened 
Plants may be warranted at this time.

5-Year Review

    Although we will not conduct a status review in response to the 
National Wilderness Institute's petition, we acknowledge that a review 
of the Sclerocactus glaucus complex (S. glaucus, S. brevispinus, and S. 
wetlandicus) is necessary at this time to address the taxonomic 
revisions that have occurred since the species was listed. As such, we 
are initiating a 5-year review of the S. glaucus complex under section 
4(c)(2)(A) of the Act. Based on this 5-year review, we will determine 
whether or not any of the species included in the Sclerocactus glaucus 
complex should be removed from the list (i.e., delisted) or otherwise 
reclassified. Delisting or reclassifying a species must be supported by 
the best scientific and commercial data available and we will only 
consider delisting a species if such data substantiate that the species 
is neither endangered nor threatened for one or more of the following 
reasons: (1) The species is considered extinct; (2) the species is 
considered to be recovered; or (3) the original data available when the 
species was listed, or the interpretation of such data, were in error. 
Any change in Federal classification would require a separate 
rulemaking process.
    Our regulations at 50 CFR 424.21 require that we publish a notice 
in the Federal Register announcing those species currently under 
review. This notice announces our intention to prepare a 5-year review 
of the Sclerocactus glaucus complex and opening of a 60-day comment 
period (see DATES). We encourage interested parties to provide comments 
on any or all of the species included in the S. glaucus complex (S. 
glaucus, S. brevispinus, and S. wetlandicus) to the Field Supervisor, 
Utah Ecological Services Office (see ADDRESSES).

Pariette Cactus (Sclerocactus brevispinus)

    The Center for Native Ecosystems' petition provided a summary of 
the distribution, status, and trends of Sclerocactus brevispinus and 
cited limited distribution, minimal monitoring, negative population 
trends, impacts to pollinators, drought, and habitat disturbance as 
examples of threats affecting the species. The petition described S. 
brevispinus as ``a narrow endemic occurring in a series of small 
scattered populations in badlands near Myton, Utah'' (Heil and Porter 
1994, p. 26) occupying an area approximately 16 kilometers (km) (10 
miles (mi)) long and 5 km (3 mi) wide astride the Duchesne and Uintah 
County line. The petition identified a population size of 3,795 
individuals in 1985 (BLM 1985, p. 4; Heil and Porter 1995, p. 45). 
Long-term or recent status or trend data for S. brevispinus was not 
provided.

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

    The petition asserted that ongoing oil and gas development 
threatens the species. According to the petition, over 90 percent of 
the species' habitat occurs in active oil and gas fields, and 
Sclerocactus brevispinus individuals and habitat have been lost to oil 
and gas development. The petition provides examples of habitat and 
individual plant loss by citing the BLM Draft Environmental Impact 
Statement (EIS) for the Castle Peak/Eightmile Flat project (BLM 2004, 
pp. 4.1-4.26), including the complete loss of 172.4 hectares (ha) (462 
acres (ac)) of occupied S. brevispinus habitat (5.6 percent of total 
suitable habitat) and 926 ha (2,288 ac) of unsurveyed potential 
suitable habitat (30 percent of total suitable habitat) to date.
    The Service now has the Final EIS for the Castle Peak/Eightmile 
Flat project in our files (BLM 2005a). The following discussion results 
from our analysis of information in the Final EIS and global 
information system (GIS) data (Service 2006) where it corresponds to 
Draft EIS information identified in the petition.

[[Page 75218]]

    The total range of Sclerocactus brevispinus comprises approximately 
5,733 ha (14,166 ac) (Service 2006) within which suitable habitat is 
scattered in naturally occurring mosaics (BLM 2005b, pp. 3-30). Of the 
species' total range, 91 percent (5,209 ha/12,871 ac) occurs within the 
approved Castle Peak/Eightmile Flat project area and the pending Gasco 
Uinta Basin Natural Gas Field Development project (Service 2006; 71 FR 
7059, Feburary 10, 2006). The remaining 848 ha (2,095 ac) of S. 
brevispinus' range contains wells drilled in the Sand Wash and Greater 
Boundary Units (Service 2006). The BLM administers 4,649 ha (11,488 ac) 
(81 percent) of the species' range (Service 2006). Expansion of the 
Castle Peak/Eightmile Flat oil and gas field overlaps much of the 
remaining suitable habitat for S. brevispinus by doubling the number of 
wells and the amount of surface disturbance in cactus habitat (BLM 
2005a, pp. 4.2-4.14). The analysis in the BLM Biological Assessment 
(BLM 2005b, pp. 3-31) assumed 6,659 ha (16,454 ac) of potential 
suitable S. brevispinus habitat would be affected.
    For the purpose of evaluating information presented in the 
petition, we reviewed GIS data of known well activity within the range 
of Sclerocactus brevispinus (Utah 2006; Service 2006). That information 
shows that all known S. brevispinus individuals are within 300 m (984 
ft) of a well, and 96 percent of the species' range is within 400 m 
(1,312 ft) of a well. Additional wells and facilities are anticipated 
based on pending oil and gas development projects.
    The petition notes that indirect effects to Sclerocactus 
brevispinus from these development activities include soil compaction, 
increased road access, increased ORV use, increased surface 
disturbance, and habitat fragmentation (BLM 2005b, pp. 3-35; BLM 2005a, 
pp. 5-18). Increased road access can result in increased illegal 
collection of the species, resulting in direct loss of individual 
plants (BLM 2005b, pp. 3-35). Roads also increase sediment deposition 
on cacti, which has been documented to result in the mortality of 
mature plants (BLM 2004, pp. 4.1-4.28; BLM 2005b, pp. 3-36), and 
increase habitat fragmentation (BLM 2005b, pp. 3-34 to 3-35). As well 
field road density increases within cactus habitat areas, cactus 
populations become more physically isolated from each other (BLM 2005b, 
pp. 3-36).
    Increased ORV use would likely result in crushing of cacti, and 
increased erosion, soil compaction, and sedimentation (BLM 2005b, pp. 
3-35). Increased surface disturbance from wells, pipelines, and roads 
would facilitate proliferation of noxious weeds (BLM 2005a, pp. 5-18). 
Noxious weeds can negatively change the ecological characteristics of 
hookless cactus habitat (BLM 2005b, pp. 3-35).
    Rehabilitation of soils and vegetation following surface 
disturbance is expected to be difficult; approximately 73 percent of 
soils in the Castle Peak/Eightmile Flat project area have moderate to 
high re-vegetation constraints (BLM 2005a, pp. 4.2-4.11). The Castle 
Peak/Eightmile Flat project EIS (BLM 2005a, pp. 4.2-4.12, 4.3-4.7) 
estimates that successful re-vegetation would be expected to occur over 
the long term (up to 50 years) in desert shrub and sagebrush 
communities. Drought conditions could further extend the recovery 
period, and noxious weeds would persist regardless of control efforts 
(BLM 2005a, pp. 4.3-4.7).
    Conservation measures are developed and implemented for oil and gas 
projects to minimize effects to Sclerocactus brevispinus by surveying 
for, and avoiding or minimizing the loss of, individual cacti (BLM 
2005a, pp. 2-23). These measures include preconstruction cactus surveys 
and application of avoidance buffers. For example, BLM administers the 
4,719 ha (11,660 ac) Pariette Wetlands Area of Critical Environmental 
Concern (ACEC), which emphasizes protection of S. brevispinus. 
Approximately 1,450 ha (3,584 ac) of the ACEC occur within the range of 
S. brevispinus. The EIS Record of Decision defers approval of new wells 
and ancillary facilities located on BLM-administered land within the 
Pariette Wetlands ACEC until a comprehensive population survey has been 
completed for S. brevispinus; however, it does not preclude long-term 
development (70 FR 61301, October 21, 2005). Citing valid existing 
lease rights, and current management prescriptions included in the 
Diamond Mountain Resource Management Plan, the EIS Record of Decision 
did not stipulate a blanket ``no surface occupancy'' requirement for 
oil and gas development within the Pariette Wetlands ACEC or within the 
range of S. brevispinus (BLM 2005a, p. 5). Following cactus surveys, 
development could occur within the ACEC. Regardless of conservation 
efforts, adverse indirect effects are still expected due to the loss 
and fragmentation of suitable habitat (BLM 2005a, pp. 5-18; BLM 2005b, 
pp. 3-35).
    The petition questioned the adequacy of available monitoring to 
evaluate population status or threats. Information in Service files 
indicates that BLM has initiated monitoring of Sclerocactus brevispinus 
populations, including monitoring of impacts associated with oil and 
gas development. Results are preliminary, given that the study was 
initiated in 2005. However, initial results show potential impacts from 
oil and gas development (e.g., roads, well pads) to the survival and 
reproduction success of S. brevispinus (Ulloa 2006). For example, in 
2005 monitoring, survival of S. brevispinus in plots impacted by roads 
associated with energy development was 17 percent compared to 47 
percent survival for plots not associated with roads. Twenty-two 
percent of cacti successfully reproduced on plots not impacted by roads 
while 13.8 percent reproduced at plots adjacent to roads. More 
information is needed to determine if these effects are the result of 
energy development or other environmental factors (Ulloa 2006).
    The petition states that continued infilling of additional oil and 
gas wells and supporting road and pipeline facilities will further 
impact the species' population. We have documented the direct loss of 
S. brevispinus individuals to oil field development activities 
including mechanical disturbance of occupied habitat with the loss of 
individual plants and sedimentation from roads and well pads burying 
other individuals. These losses have occurred despite conservation 
efforts implemented by BLM and the oil field operator (Newfield, Inc.). 
The proximity of the species occupied habitat and oil field development 
features to each other requires an ongoing vigilant effort by the BLM 
and the oilfield operators to conserve this species.
    We have no information in our files that contradicts the assertions 
made in the petition for this factor; information supports the 
petitioner's claims. As the petition demonstrates, energy development 
is occurring in Sclerocactus brevispinus habitat at a rate much greater 
than existed at the time of the original S. glaucus complex listing in 
1979. Therefore, we find that the petition, supporting information, and 
information readily available in our files for this factor, presents 
substantial information indicating that the petitioned action may be 
warranted.

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

    The petition references our original listing rule for the 
Sclerocactus glaucus complex, which stated that ``the cactus * * * has 
been and will continue to be a particular prize among collectors and 
therefore is very threatened by unregulated commercial trade'' (44 FR 
58868, October 11, 1979). The petition

[[Page 75219]]

further supports this claim by providing information regarding illegal 
collecting from Welsh (2004), Heil and Porter (1999), and BLM (2004). 
In addition, the Castle Peak/Eightmile Flat EIS, as noted in the 
petition, recognizes that additional energy development and ensuing 
road development would result in increased potential for illegal 
collecting (BLM 2005a, pp. 4.1-4.26).
    We have information in our files that verifies the assertions made 
in the petition for this factor. As the petition demonstrates, illegal 
collecting continues to occur and may increase as new roads are 
developed to support energy projects. Therefore, we find that the 
petition, supporting information, and information readily available in 
our files for this factor, presents substantial information indicating 
that the petitioned action may be warranted.

C. Disease or Predation

    The petition identifies parasitism by what appeared to be a grub 
infestation in one study plot of a larger monitoring effort and 
referenced a 1990 Service report that stated that ``termite and beetle 
larvae have been observed to parasitize the roots and stems of 
Sclerocactus glaucus.'' However, information provided in the petition 
is not conclusive, and the significance of parasitism on the species' 
survival is not known.
    The petition also suggests that predation may affect Sclerocactus 
brevispinus, but it also recognizes that there is no information to 
indicate the extent of the possible effects. Based on the information 
presented in the petition and available in our files for this factor, 
we find that the petition does not present substantial information 
indicating that the petitioned action may be warranted based on this 
factor alone.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition states that Sclerocactus brevispinus is not adequately 
protected by the S. glaucus complex listing, that BLM regulations do 
not adequately protect the species, and that there are no State 
regulations that apply. Regarding protections provided by the S. 
glaucus complex listing, the petition states that S. brevispinus is not 
adequately protected because evaluation of effects to S. brevispinus, 
developed through interagency consultations under section 7 of the Act, 
are muted by the fact that this species is listed as part of a much 
larger taxonomic entity. The petition concludes that if S. brevispinus 
were listed as its own species, in accordance with current taxonomic 
understanding, then effects of proposed actions would be evaluated at a 
more appropriate scale. For example, if a project impacts 3,500 plants 
(last population count for S. brevispinus; Nitschke-Sinclair 1985, p. 
3) out of a total 10,000 plants (i.e., the S. glaucus complex as 
currently listed; 44 FR 58869, October 11, 1979), that project impacts 
30 percent of the total population. However, if the same project occurs 
entirely within S. brevispinus habitat, it would impact almost 100 
percent of the total population. Absent successful implementation of 
appropriate conservation measures, a project with 100 percent overlay 
of a species' distribution would have more severe effects to the long-
term existence of that population than a project with more limited 
impacts to a smaller portion of a species' range.
    However, according to information in our files Sclerocactus 
brevispinus conservation is being addressed, to the extent possible 
under section 7 of the Act, through its current status under the 
umbrella of the S. glaucus complex. Although the jeopardy threshold may 
be different, we have no information indicating whether a new threshold 
would provide greater protections to the species. In any case, 
appropriate conservation measures would be the same, and given 
additional regulations available to BLM now, which were not available 
at the time of listing, there is no indication or information available 
to suggest these provisions are not sufficient to protect the species.
    BLM also maintains Sclerocactus brevispinus as a sensitive species. 
Information from Service files indicates that the recently completed 
formal interagency consultation and Final EIS (BLM 2005) for the Castle 
Peak/Eightmile Flat project provided specific conservation measures to 
protect S. brevispinus and its habitat (Service 2005, pp. 4-7, 42-44). 
For example, BLM and Newfield, Inc., have agreed to a moratorium on new 
oil field developments within the Pariette Wetlands ACEC (which 
contains approximately 1,249 ha (3,086 ac) of the S. brevispinus range, 
or 22 percent) until a complete reinventory of S. brevispinus is 
completed. This inventory is tentatively scheduled for the species' 
flowering period in spring 2007 (Gerbig 2006).
    BLM policy (BLM 2001, p. 6) regarding federally listed species 
includes measures to implement management plans and programs that will 
conserve listed species and their habitats and implement conservation 
recommendations included in biological opinions. Information in our 
files indicates that the Pariette Wetlands ACEC includes a goal to 
``enhance and protect the wetlands community and associated habitat 
adjacent to Pariette and Castle Peak Washes * * * while meeting the 
management objectives of the final recovery plans for the special 
status species associated with the area'' (BLM 1994, pp. 3-20). The 
ACEC management prescriptions also state that BLM will authorize no 
action in suitable habitat for threatened and endangered species if it 
jeopardizes the continued existence of the species or result in severe 
modification of the habitat. Of the 4,719 ha (11,660 ac) of federally 
managed lands in the ACEC, about 8 ha (20 acres) are open with standard 
lease terms and conditions for leasable minerals, 3,189 ha (7,880 ac) 
are leased with stipulations, and 1,497 ha (3,700 ac) are leased with 
highly restricted measures, but do not include a ``no surface 
occupancy'' stipulation.
    Information in Service files indicates there are sufficient Federal 
regulations that offer protections to S. brevispinus, even though there 
are no State regulations addressing plant resources. Therefore, based 
on the information presented in the petition and available in our files 
for this factor, we find that the petition does not present substantial 
information indicating that the threats identified under this factor 
are significant, and the petitioned action is not warranted based on 
this factor alone.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The petitioners identified drought, genetic swamping of 
Sclerocactus brevispinus by S. wetlandicus, small population size, 
pollination problems, and climate change as additional threats facing 
S. brevispinus. Potential threats from severe drought are well 
documented (Service 1990, p. 11; BLM 2005). However, the threat to S. 
brevispinus by genetic swamping from S. wetlandicus is a natural 
evolutionary process postulated by Heil and Porter (2004, p. 199) and 
as such may take numerous generations and perhaps thousands of years to 
fully manifest itself.
    Information in our files indicates that the species' inherent 
vulnerability due to its small population size may be a significant 
concern (Ellestrand and Ellam 1993, p. 228). However, there is no 
information to indicate that the species' range and population numbers 
have been significantly larger than at present, although recent losses 
from oil and gas development and illegal collection are known. The 
specifics of the species' pollination biology are not

[[Page 75220]]

known, and the specific impacts of climate change on Sclerocactus 
brevispinus are not known. Small population size and fragmentation, in 
combination with other natural factors such as limitations of the 
cacti's pollinator's range, may be impacting reproductive success. 
While the petition raises some interesting issues with respect to this 
factor, there is insufficient information to conclude that listing may 
be warranted based on this factor alone.

Finding

    We have reviewed the petition and literature cited in the petition 
and evaluated that information in relation to other pertinent 
literature and information available in our files. After this review 
and evaluation, we find that the petition presents substantial 
information indicating that listing Sclerocactus brevispinus may be 
warranted. The petition provides substantial information supporting the 
present and threatened destruction of the species' habitat from direct 
and indirect effects associated with energy development across more 
than 90 percent of the species' range. Illegal and unauthorized 
overcollection of the species for horticultural purposes also was 
identified in the petition and is verified by information in our files. 
As such, we are initiating a further status review of S. brevispinus to 
determine whether listing the species under the Act may be warranted.
    We also have reviewed the available information to determine if the 
existing and foreseeable threats pose an emergency to this species. We 
have determined that an emergency listing is not warranted at this time 
because the species receives current protection under the Act by its 
inclusion within the currently listed Sclerocactus glaucus complex.
    The petitioners also request that we designate critical habitat for 
this species. We always consider the need for critical habitat 
designation when listing species. If we determine in our 12-month 
finding that listing Sclerocactus brevispinus is warranted, we will 
address the designation of critical habitat at the time of the proposed 
rulemaking.

Public Comments Solicited

    Section 4(b)(3)(B) of the Act requires that we make a 12-month 
finding as to whether a petitioned action is (a) not warranted, (b) 
warranted, or (c) warranted but precluded by other pending proposals to 
determine whether other species are threatened or endangered, and we 
are making expeditious progress to list or delist qualified species. 
The 12-month finding is based on a status review that is initiated by a 
positive 90-day finding.
    At this time, we are opening a 60-day comment period (see DATES) to 
allow all interested parties an opportunity to provide information on 
the status of S. brevispinus and on the 5-year review for the entire 
Sclerocactus glaucus complex (including S. glaucus, S. wetlandicus, and 
S. brevispinus), including potential threats to these cacti. We will 
base our 12-month finding, and our 5-year review (as discussed 
previously), on a review of the best scientific and commercial 
information available, including the studies cited in this notice and 
all such information received during the public comment period. 
Information regarding the following topics would be particularly 
useful: (1) Species biology, including but not limited to population 
trends, distribution, abundance, demographics, genetics, and taxonomy, 
including any evaluations or reviews of the studies cited in this 
notice; (2) habitat conditions, including but not limited to amount, 
distribution, and suitability; (3) conservation measures that have been 
implemented that benefit the species; (4) threat status and trends; and 
(5) other new information or data.
    When our 12-month status review, and 5-year review, processes have 
been completed, our practice is to make comments, including names and 
home addresses of respondents, available for public review during 
regular business hours. Individual respondents may request that we 
withhold their names, home addresses, or other personal information, 
but if you wish us to consider withholding this information, you must 
state this prominently at the beginning of your comments. In addition, 
you must present a rationale for withholding this information. This 
rationale must demonstrate that disclosure would constitute a clearly 
unwarranted invasion of privacy. Unsupported assertions will not meet 
this burden. In the absence of exceptional, documentable circumstances, 
this information will be released. We will always make 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.
    Please submit electronic comments in an ASCII or Microsoft Word 
file and avoid the use of any special characters or any form of 
encryption. Also, please include ``Attn: Uinta Basin Hookless Cactus'' 
or ``Attn: Pariette Cactus'' along with your name and return address in 
your e-mail message. If you do not receive a confirmation from the 
system that we have received your e-mail message, please submit your 
comments in writing using one of the alternate methods provided in the 
ADDRESSES section.

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Utah Fish and Wildlife Service Office (see 
ADDRESSES).

Author

    The primary author of this document is Larry England, Botanist, 
Utah Ecological Services Office, U.S. Fish and Wildlife Service (see 
ADDRESSES).

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: December 7, 2006.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service
 [FR Doc. E6-21259 Filed 12-13-06; 8:45 am]
BILLING CODE 4310-55-P