[Federal Register Volume 73, Number 7 (Thursday, January 10, 2008)]
[Proposed Rules]
[Pages 1855-1861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0023; 1111 FY07 MO; ABC Code B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
Petition To List the Amargosa River Population of the Mojave Fringe-
Toed Lizard (Uma scoparia) as Threatened or Endangered With Critical 
Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the Amargosa River population of 
the Mojave fringe-toed lizard (Uma scoparia) in the State of California 
as threatened or endangered under the Endangered Species Act of 1973, 
as amended (Act). We find that the petition presents substantial 
scientific or commercial information indicating that listing this 
population may be warranted. Therefore, with the publication of this 
notice, we are initiating a status review of the Amargosa River 
population of the Mojave fringe-toed lizard, and we will issue a 12-
month finding on our determination as to if the petitioned action is 
warranted. To ensure that the status review of the Amargosa River 
population of the Mojave fringe-toed lizard is comprehensive, we are 
soliciting scientific and commercial data regarding this species. We 
will make a determination on critical habitat for this species if, and 
when, we initiate a listing action.

DATES: We made the finding announced in this document on January 10, 
2008. To be considered in the 12-month finding for this petition, 
comments and information must reach us by March 10, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV02; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.

We will not accept e-mail or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Information 
Solicited section below for more information).

FOR FURTHER INFORMATION CONTACT: Diane Noda, Field Supervisor, Ventura 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola 
Road, Suite B, Ventura, CA 93003; telephone 805-644-1766 ext. 319; 
facsimile 805-644-3958. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Information Solicited

    When we make a finding that a petition presents substantial 
information to indicate that listing a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information concerning the status of the Amargosa River population of 
the Mojave fringe-toed lizard. We are seeking information regarding the 
species' historical and current status and distribution, its biology 
and ecology, ongoing conservation measures for the species and its 
habitat, and threats to the species and its habitat. We request any 
additional information, comments, and suggestions from the public, 
other concerned governmental agencies, Native American tribes, the 
scientific community, industry, or any other interested parties.
    Please note that comments merely stating support or opposition to 
the action under consideration without providing supporting 
information, although noted, will not be considered in making a 
determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species shall be made ``solely on the basis of the best scientific and 
commercial data available.'' At the conclusion of the status review, we 
will issue the 12-month finding on the petition, as provided in section 
4(b)(3)(B) of the Act (16 U.S.C. 1533 (b)(3)(B)).
    If we determine that listing the Amargosa River population of the 
Mojave fringe-toed lizard is warranted, it is our intent to propose 
critical habitat to the maximum extent prudent and determinable at the 
time we propose to list the species. Therefore, with regard to areas 
within the geographical area currently occupied by the species, we also 
request data and information on what may constitute physical or 
biological features essential to the conservation of the species, where 
these features are currently found, and whether any of these features 
may require special management considerations or protection. In 
addition, we request data and information regarding whether there are 
areas outside of the geographical area occupied by the species that are 
essential to the conservation of the species. Please provide specific 
comments and information, as to what, if any, critical habitat you 
think we should propose for designation if the species is proposed for 
listing, and why such habitat meets the requirements of the Act.
    You may submit your comments and materials concerning this finding 
by one of the methods listed in the ADDRESSES section. We will not 
accept comments you send by e-mail or fax. Please note that we may not 
consider comments we receive after the date specified in the DATES 
section in our final determination.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that we will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. Such findings are based on 
information contained in the petition, supporting information submitted 
with the petition, and information otherwise readily 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 the finding promptly in the 
Federal Register.
    Our standard for substantial scientific or commercial information, 
as defined by the Code of Federal Regulations (CFR), with regards 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 the 
petition

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presents substantial scientific or commercial information, we are 
required to promptly commence a status review of the species.
    We received a petition dated April 10, 2006, from the Center for 
Biological Diversity and Ms. Sylvia Papadakos-Morafka requesting that 
the Mojave fringe-toed lizard (Uma scoparia) occurring in the Amargosa 
River area of San Bernardino County, California, be listed as a 
threatened or endangered distinct population segment (DPS) under the 
Act. Additionally, the petition requested that critical habitat be 
designated concurrent with listing. The petition clearly identified 
itself as such and included the identification information for the 
petitioners, as required in 50 CFR 424.14(a). In response to the 
petitioners' request, we sent a letter to the petitioners dated June 
21, 2006, explaining that we would not be able to address their 
petition at that time. The reason for this delay was that responding to 
existing court orders and settlement agreements for other listing 
actions required nearly all of our listing funding. We also concluded 
in our June 21, 2006, letter that emergency listing of the Amargosa 
River population of the Mojave fringe-toed lizard was not indicated. 
Delays in responding to the petition continued due to the high priority 
of responding to court orders and settlement agreements, until funding 
recently became available to respond to this petition.
    In making this finding, we based our decision on information 
provided by the petitioners that we determined to be reliable after 
reviewing sources referenced in the petition, as well as information 
readily available in our files at the time of the petition review. We 
evaluated the information in accordance with 50 CFR 424.14(b). Our 
process for making this 90-day finding under section 4(b)(3)(A) of the 
Act and Sec.  424.14(b) of our regulations is limited to a 
determination of whether the information in the petition meets the 
``substantial scientific and commercial information'' threshold (as 
mentioned above).

Species Information

    The Mojave fringe-toed lizard (Uma scoparia) is in the family 
Phrynosomatidae, the family of the North American spiny lizards. 
Fringe-toed lizards are medium-sized lizards and seem to be completely 
restricted to a sand-dwelling existence (Norris 1958, p. 253). The 
Mojave fringe-toed lizard may reach a snout to vent length of 4.5 
inches (112 millimeters), with a dorsoventrally (top to bottom) 
compressed body and tail (Hollingsworth et al. 1999, p. 1). The Mojave 
fringe-toed lizard has smooth skin and a fine pattern of small black 
circles and flecks. Both sides of the belly have a conspicuous black 
spot, and the underside of the tail has black bars. The Mojave fringe-
toed lizard is distinguished from other fringe-toed lizards by the dark 
black spot on each side of the belly and the crescent-shaped markings 
present on the sides of the throat.
    The concealing coloration of fringe-toed lizards is striking, being 
one of the best examples of this phenomenon among North American 
vertebrates. Adults of the species have a yellow-green wash on the 
belly and pink on the sides during breeding periods, but during other 
times of year, the Mojave fringe-toed lizard's color mimics the sand 
dunes on which they dwell (Norris 1958, p. 253).
    The Mojave fringe-toed lizard is omnivorous throughout its life. 
They primarily feed on insects, but will also eat seeds and flowers 
(Stebbins 1944, p. 329). Annual plant species provide important forage 
during the springtime, though the reliance on vegetative plant species 
may diminish during the summer with increased arthropod availability 
(Stebbins 1944, p. 329). The Mojave fringe-toed lizard derives most of 
its water from arthropod and plant food.
    The Mojave fringe-toed lizard generally reaches sexual maturity 
during the second summer following hatching. Reproductive activity in 
both sexes is annually variable, in accordance with seasonal rainfall 
patterns (Mayhew 1966, pp. 119-120). Breeding colors and testis size 
indicate the male breeding period, which occurs between April and late 
June. Female breeding colors are displayed between April and September, 
with maximized colors during May through July (Mayhew 1966, pp. 115-
117). Ovarian egg counts also fluctuate in response to rainfall and 
food availability; reduced egg counts and fewer juveniles were observed 
following dry winters. There is also evidence to suggest that female 
lizards may have more than one brood per year (Mayhew 1966, p. 118).
    Fringe-toed lizards likely select unstabilized areas with 
intermediate grain sand because it eases self-burying and facilitates 
respiration (Pough 1970, p. 154). Self-burial by the fringe-toed lizard 
is presumed to be defensive, as there is no evidence to suggest that it 
is thermoregulatory or used for subsurface hunting as exhibited by 
other genera of sand lizards (Pough 1970, p.153). Fringe-toed lizards 
are highly dependent on desert vegetation as a source of cover, for 
thermoregulation and as habitat for primary prey (Pough 1970, pp. 152-
153). Mojave fringe-toed lizards spend their inactive periods and 
hibernation cycle (November to February) beneath the sand (Mayhew 1966, 
pp. 120-121). It is believed that their flattened body form, skin 
surface scales, and wedge-shaped head with well-developed eye and ear 
flaps are all useful for the burrowing behavior exhibited by this genus 
(Pough 1970, p. 145).
    The Mojave fringe-toed lizard is endemic to the deserts of southern 
California and a small area of western Arizona. The Mojave fringe-toed 
lizard occurs in the lower Sonoran life zones of the Mojave Desert and 
the northwestern reaches of the Sonoran Desert. Fringe-toed lizard 
distribution is discontinuous throughout the range since the animals 
are restricted to deposits of fine, loose sand (Stebbins 1944, p. 313). 
The Amargosa River population of the Mojave fringe-toed lizard consists 
of individuals occurring at Dumont Dunes, Ibex Dunes, and Coyote Holes 
(Murphy et al. 2006, pp. 239-241). Dumont Dunes' main dune area is 
approximately 9,600 acres (ac) (3,885 hectares (ha)). Dumont Dunes 
began to form approximately 18,000 years ago when Lake Manley in Death 
Valley and Lake Dumont in the Silurian Valley began to dry, leaving 
behind sand to be blown and deposited forming the dunes. Ibex Dunes is 
about 1,700 ac (688 ha) and is the northern limit for the Amargosa 
River population of the Mojave fringe-toed lizard. Coyote Holes is a 
50-ac (20-ha) sand blow-out located approximately 12 miles (mi) (20 
kilometers (km)) southeast of the eastern end of Dumont Dunes. The 
nearest population of Mojave fringe-toed lizards is known from Silver 
Lake located approximately 20 mi (32 km) southeast of Dumont Dunes.
    Dispersal of Mojave fringe-toed lizards between populations is 
poorly studied, but based on observed movements and limited ability of 
the species to cross unsuitable habitat, it is unlikely that isolated 
populations interact. No specimen of Uma has been captured more than a 
very short distance 148 feet (ft) (45 meters (m)) from wind-blown sand 
deposits (Norris 1958, p. 257). Population status and relative density 
data for the Mojave fringe-toed lizard is not currently available. To 
estimate the amount of habitat rangewide for the Mojave fringe-toed 
lizard, we used distribution data from Murphy et al. (2006, p. 230), 
Hollingsworth et al. (1999, p. 1), and Norris (1958, pp. 265-266) to 
develop maps showing the amount of potential

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Mojave fringe-toed lizard habitat. Based on our habitat analysis, the 
Amargosa population of the Mojave fringe-toed lizard comprises 
approximately 3 to 5 percent of the species' range.

Distinct Population Segment

    We consider a species for listing under the Act if available 
information indicates such an action might be warranted. ``Species'' is 
defined in section 3 of the Act to include any subspecies of fish or 
wildlife or plants, and any distinct vertebrate population segment of 
fish or wildlife that interbreeds when mature (16 U.S.C. 1532 (16)). 
We, along with the National Marine Fisheries Service (now the National 
Oceanic and Atmospheric Administration--Fisheries), developed the 
Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments (DPS Policy) (February 7, 1996; 61 FR 4722) to help us in 
determining what constitutes a DPS. The policy identifies three 
elements that we are to consider in making a DPS determination. These 
elements include: (1) The discreteness of the population segment in 
relation to the remainder of the species to which it belongs; (2) the 
significance of the population segment to the species to which it 
belongs; and (3) the population segment's conservation status in 
relation to the Act's standards for listing. If we determine that a 
population segment meets the discreteness and significance standards, 
then the level of threat to that population segment is evaluated based 
on the five listing factors established by the Act to determine whether 
listing the DPS as either threatened or endangered is warranted.

Discreteness

    Citing the Services' DPS policy (61 FR 4722), the April 2006 
petition asserts that the Amargosa River population of the Mojave 
fringe-toed lizard qualifies as a DPS based on discreteness. The DPS 
policy states that a population may be considered discrete if it 
satisfies either one of the following conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status or regulatory mechanisms exist that are significant 
in light of section 4(a)(1)(D) of the Act.
    The petitioners assert that the Amargosa River population of Mojave 
fringe-toed lizards is restricted to dunes with fine, loose sand. The 
petitioners also assert that the Amargosa River population of Mojave 
fringe-toed lizards of Coyote Holes and Dumont and Ibex Dunes are 
isolated and discrete from other dunes and other populations by the 
presence of intervening, unsuitable habitat, due to the fact that 
Mojave fringe-toed lizards are not known to disperse across long 
distances of unsuitable habitat (Norris 1958, p. 257).
    The petitioners provided the following quote from Murphy et al. 
(2006, p. 241) to support their assertion that the Amargosa River 
population of the Mojave fringe-toed lizard is discrete: ``Natural 
geographic barriers, including the absence of sand and presence of 
mountains, separate populations from one another. Each Dune is a 
discrete entity and it is extremely unlikely that gene flow is 
occurring among the isolated dunes, and especially among dune systems 
not connected by a recent hydrogeologic system. Ecologically, dispersal 
is virtually impossible because of the absence of intervening sand 
dunes.'' The petitioners assert that Dumont Dunes, Ibex Dunes, and 
Coyote Holes are thus isolated from other suitable habitat, making 
dispersal highly improbable. The petitioners also assert that the 
physical isolation of the Amargosa River population of the Mojave 
fringe-toed lizard further indicates genetic differences between this 
population and others of the species. The April 2006 petition cites the 
genetic work of Murphy et al. (2006, pp. 231-238), which determined 
that the Amargosa River population of the Mojave fringe-toed lizard 
contains unique haplotypes [The petitioners are referring to 
differences in mitochondrial DNA sequenced from maternal haplotypes. A 
haplotype is a set of closely linked genetic markers present on one 
chromosome, which tend to be inherited together.] not found elsewhere 
within the range of the species.
    The Services' DPS policy requires that only one of the discreteness 
criteria be satisfied in order for a population of a vertebrate species 
to beconsidered discrete. After reviewing the information provided 
(e.g., Murphy et al. 2006, pp. 226-247) in the petition and in our 
files, we believe that the Amargosa River population may be physically 
isolated from other populations and may also be genetically distinct 
from other populations. We based this on a preliminary review of maps 
of the Mojave Desert in our files, the position of the three dune 
locations, the petitioners' information on the Amargosa River 
population, and the research of Murphy et al. (2006, pp. 242-247) cited 
in the petition on dunes occupied by Mojave fringe-toed lizards and the 
genetics of this species. From our review of this information, we find 
that there is substantial information indicating the Amargosa River 
population of the Mojave fringe-toed lizard may satisfy the 
discreteness element of the DPS policy.

Significance

    If we determine that a population meets the DPS discreteness 
element, we then consider if it also meets the DPS significance 
element. The DPS policy (61 FR 4722) states that if a population 
segment is considered discrete under one or more of the discreteness 
criteria, its biological and ecological significance will be considered 
in light of Congressional guidance that the authority to list DPSs be 
used ``sparingly'' while encouraging the conservation of genetic 
diversity. In making this determination, we consider available 
scientific evidence of the discrete population's importance to the 
taxon to which it belongs. Since precise circumstances are likely to 
vary considerably from case to case, the DPS policy does not describe 
all the classes of information that might be used in determining the 
biological and ecological importance of a discrete population. However, 
the DPS policy does provide four possible reasons why a discrete 
population may be significant. As specified in the DPS policy (61 FR 
4722), this consideration of the significance may include, but is not 
limited to, the following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique to the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    The April 2006 petition asserts that the Amargosa River population 
of the Mojave fringe-toed lizard, being discrete from other 
populations, also meets the significance element of the DPS policy for 
three of the four reasons above: (1) Persistence in an ecological 
setting unusual or unique to the taxon; (2) loss of the population 
would create a significant gap in the range of a taxon; and (3) the 
population differs markedly

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from other populations in its genetic characteristics.
    The April 2006 petition asserts that the loss of the Amargosa River 
population of the Mojave fringe-toed lizard would result in the species 
disappearing from a unique ecological setting. The petitioners state 
that populations at Coyote Holes, Ibex Dunes, and Dumont Dunes 
represent the northernmost extension of the species' range and are the 
only populations in the Amargosa River drainage. The petitioners also 
assert that the loss of the Amargosa River population would result in a 
significant gap in the range of the Mojave fringe-toed lizard. The 
petition further asserts that the Amargosa River population of the 
Mojave fringe-toed lizard differs markedly from other Mojave fringe-
toed lizard populations in genetic characteristics. These populations 
contain unique haplotypes that very likely represent adaptation to 
unique regional characteristics, such as differences in climate, 
vegetation, and substrate. The petition cites the research of Murphy et 
al. (2006, pp. 236-238), which identified the Amargosa River population 
of the Mojave fringe-toed lizard as one of two distinct maternal 
lineages that have been isolated since likely the mid-Pleistocene 
(about 500,000 years ago). The Amargosa River population was found to 
have the greatest amount of DNA sequence divergence (Murphy et al. 
2006, p. 232). This lineage includes individuals from Coyote Holes and 
Ibex and Dumont Dunes, which are closely related and likely had recent 
contact during more mesic (moderately moist) periods of the late 
Pleistocene and Holocene (i.e., <125,000 years ago) (Murphy et al. 
2006, pp. 237-238). In regards to the significance of genetic 
differences observed in the Amargosa River population, Murphy et al. 
(2006, p. 241) concluded: ``The Amargosa River lineage is genetically 
distinct. The presence of unique haplotypes gives credence to the 
possibility of regional adaptations and incipient speciation. The 
Amargosa River lineage represents a significant historical component 
and it deserves recognition as a DPS.''
    The Mojave fringe-toed lizard is widespread geographically across 
the Mojave and northern Sonoran deserts. Although it is true that the 
Amargosa River population is at the northern extent of the species' 
range, this population is separated by only about 20 mi (32 km) from 
another population at Silver Lake. The petitioners do not provide any 
information supporting the view that either the climate or the habitat 
where the Amargosa River population occurs is different from that of 
their nearest neighbor at Silver Lake. Although the genetic differences 
observed in the Amargosa River population may have resulted from 
adaptation to the environment, the differences may also have resulted 
from random genetic drift. Therefore, based on the information provided 
by the petitioners and in our files, we do not agree that the Amargosa 
River population of the Mojave fringe-toed lizard occurs in an 
ecological setting that is unique for the taxon.
    We also do not agree that the loss of the Amargosa River population 
of the Mojave fringe-toed lizard would result in a significant gap in 
the range of the species. We estimated total extant range of the Mojave 
fringe-toed lizard to be approximately 600 sq mi (1540 sq km), and the 
total area that comprises the Amargosa River area is 18 sq mi (46 sq 
km). Therefore, the total area comprised by the Amargosa River 
population represents at most 3 to 5 percent of the total extant range 
of Mojave fringe-toed lizard, and the loss of this population may not 
result in a significant gap in the range of the species. However, we 
will further evaluate the contribution of the Amargosa River population 
to the taxon as a whole during our status review.
    However, based on our preliminary review of the research of Murphy 
et al. (2006, pp. 231-238) cited in the petition, the genetic 
characteristics of the Amargosa River population differ from those of 
other populations of Mojave fringe-toed lizards, thus meeting the 
fourth criteria for significance identified above. Murphy et al. 2006 
analyzed the mitochondrial DNA genes ATPase 6 and cytochrome b. Their 
statistical analysis indicates that the Amargosa River population is 
significantly different (p<0.01) from other populations. Therefore, we 
find that there is substantial information indicating the Amargosa 
River population of the Mojave fringe-toed lizard may satisfy the 
significance element of the DPS policy.

DPS Conclusion

    We have reviewed the information presented in the petition, and 
have evaluated the information in accordance with 50 CFR 424.14(b). In 
a 90-day finding, the question is whether a petition presents 
substantial information that the petitioned action may be warranted. We 
do not make final determinations regarding DPSs at this stage; rather, 
we determine whether a petition presents substantial information that a 
population may be a DPS. Based on our review, we find that the April 
2006 petition, and the information in our files, do present substantial 
scientific or commercial information to indicate that the Amargosa 
River population of the Mojave fringe-toed lizard may be a DPS based on 
genetic evidence, which may meet both the discreteness and significance 
criteria of the DPS policy, and thus may be a listable entity under the 
Act. To meet the third element of the DPS policy, we evaluate the level 
of threat to the DPS based on the five listing factors established by 
the Act. We thus proceeded with an evaluation of information presented 
in the petition, as well as information in our files, to determine 
whether there is substantial scientific or commercial information 
indicating that listing this population may be warranted. Our threats 
analysis and conclusion follow.

Threats Analysis

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to 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 its 
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 this 90-day finding, we evaluated whether information on 
threats to the Amargosa River population of the Mojave fringe-toed 
lizard in our files and those presented in the April 2006 petition 
constitute substantial scientific or commercial information such that 
listing under the Act may be warranted. The Act identifies the five 
factors to be considered, either singly or in combination, to determine 
whether a species may be threatened or endangered. Our evaluation of 
this information is presented below.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    The petitioners assert that a significant portion of the range of 
this population has suffered severe habitat destruction and 
modification by extensive OHV traffic. The petitioners are concerned 
that extensive Off-Highway Vehicle (OHV) traffic at Dumont Dunes, and 
to a lesser extent

[[Page 1859]]

Ibex Dunes and Coyote Holes, poses a substantial threat to the 
continued existence of the Amargosa River population of the Mojave 
fringe-toed lizard. Dumont Dunes and Ibex Dunes represent more than 98 
percent of the known range of the Amargosa River population of the 
Mojave fringe-toed lizard. The petitioners assert that OHV use at 
Dumont Dunes and elsewhere in the range of the Amargosa River 
population results in compression fatalities, destruction of habitat by 
compaction of soils, and elimination of native vegetation and prey 
sources critical to the Mojave fringe-toed lizard's survival.
    The petitioners cite a 2002 study at Dumont Dunes that found low 
densities of Mojave fringe-toed lizards and significant habitat 
destruction by OHV use at Dumont Dunes. Stratified sampling studies at 
Dumont Dunes found Mojave fringe-toed lizard frequencies per 3281-ft 
(1000-m) transect were 0.583 (SD: 0.900), 0.250 (SD: 0.463), 0.500 (SD: 
0.674) at low, moderate, and high OHV use areas, respectively. Similar 
studies were conducted under the same protocols at Bitter Springs and 
Red Pass dunes in 1998, where anthropomorphic impacts were low to 
absent. Mojave fringe-toed lizard frequencies per 3281-ft (1000-m) 
transect were 6.714 (SD: 2.059) at Bitter Springs Dune and 6.156 (SD: 
2.825) at Red Pass Dune (Morafka 2002, p. 4).
    Petitioners assert that the significant increase in OHV use at 
Dumont Dunes fuels an increase of illegal OHV use at both Ibex Dunes 
and Coyote Holes. Petitioners cite the following statement by Murphy et 
al. (2006, pp. 242); ``Disruption of dune ecosystems by off-road 
vehicles poses a major threat.'' Habitat photographs of Dumont Dunes 
included in the petition show areas heavily affected by OHV use.
    A comprehensive study cited by the petitioners demonstrated that 
OHV activities at nearby Algodones Dunes were detrimental to dune biota 
(Luckenbach and Bury 1983, p. 280). At Algodones Dunes, herbaceous and 
shrubby perennial vegetation is greatly reduced in habitats where OHVs 
operate. The same study showed that the closely-related fringe-toed 
lizard (Uma notata) abundance is lower in areas frequently used by 
OHVs. Control areas had nearly 5 times more lizards than OHV areas. 
Control areas had 2.4 times more plant species, 10 times greater plant 
density, and 9.4 times greater cover than OHV areas. The Mojave fringe-
toed lizard is dependent on native vegetation for forage, prey forage, 
cover, thermoregulation, and predator avoidance. The petitioners assert 
that, given the similar vegetation and OHV use between the Algodones 
Dunes and Dumont Dunes, similar impacts can be expected.
    The Service acknowledges that OHV use poses a threat to dune 
habitat. However, a preliminary study conducted by Morafka (2002) at 
Dumont Dunes does not show a statistically significant correlation 
between intensity of OHV use in an area and fewer numbers of Mojave 
fringe-toed lizards in that area. Yet, study results may have been 
inconclusive for the following reasons: The studies were conducted in a 
year of extreme drought, performed late in the species activity season, 
and used an inadequate system to quantify stratification in OHV use 
areas.
    The study at nearby Algodones Dunes supports the petitioners' 
assertion that OHV use decreases fringe-toed lizard numbers, prey 
insects, forage vegetation, and critical cover sites (Luckenbach and 
Bury 1983, pp. 271-273). Evidence does exist to indicate that the 
compaction of soils near the base of vegetation can result in the 
destruction of many desert plants by destroying shallow root systems 
(Luckenbach and Bury 1983, p. 275). Dumont Dunes is a designated open 
area; Ibex Dunes and Coyote Holes are not open to OHV use. No specific 
data were provided showing OHV use at Ibex Dunes. However, the 
petitioners cited a recent National Park Service (NPS) environmental 
assessment report, in which the NPS acknowledges that some OHV 
visitation occasionally spills over from Dumont Dunes into Death 
Valley's Ibex Dunes, increasing unauthorized OHV vehicular visitations 
to mines in the area (NPS 2004, p. 3). Mojave fringe-toed lizard 
densities at Ibex dunes are low despite the low incidence of trespass 
OHV use. Possibly Mojave fringe-toed lizard densities are low because 
this is the northern range limit for the species.
    Studies provided by the petitioners indicate OHV use may cause 
direct harm to Mojave fringe-toed lizards. Hearing loss associated with 
OHV use may compromise prey acquisition and predator avoidance 
(Brattstrom 1979, p. 22). The shallow-buried Mojave fringe-toed lizard 
is susceptible to tail loss, maiming, and crushing by OHV (Luckenbach 
and Bury 1983, p. 277). Intense OHV activities of the spring and summer 
months coincide with the reproductive season of the Mojave fringe-toed 
lizard. During the most critical phase of their life cycle, the 
breeding season, their habitat is subjected to the most intense degree 
of OHV impact (Brattstrom 1979, p. 22). Petitioners cited Luckenbach 
and Bury (1983, p. 277) stating that there is no doubt OHVs contribute 
to the maiming and crushing death of shallow-buried Mojave fringe-toed 
lizards.
    We acknowledge that the petitioners present information indicating 
that tail loss, maiming, and hearing loss may compromise prey 
acquisition, predator avoidance, and reproduction. Natural predators of 
the Mojave fringe-toed lizard may be responsible for a significant 
percentage of maiming and tail loss occurrences. The petitioners 
present substantial information to indicate that a significant segment 
of the Amargosa River population of the Mojave fringe-toed lizard may 
be threatened by OHV-related compression fatalities.
    In summary, we find that the information provided in the petition, 
as well as other information in our files present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted due to the present or threatened destruction, 
modification, or curtailment of the habitat or range of the Amargosa 
River population of the Mojave fringe-toed lizard. We base this finding 
in part by extrapolating from studies at Algodones Dunes, which found 
that OHV use resulted in lower numbers of fringe-toed lizard (Uma 
notata). The Service concurs with the parallel drawn in the petition 
comparing Dumont Dunes with Algodones Dunes (Luckenbach and Bury 1983, 
pp. 265-272).

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

    The petition and our files provided no information to document 
current or future threats from overutilization for commercial, 
recreational, scientific, or educational purposes to Mojave fringe-toed 
lizards in the Amargosa River area. Therefore, we conclude that there 
is not substantial scientific or commercial information to indicate 
that listing of the Amargosa River population of the Mojave fringe-toed 
lizard may be warranted due to overutilization for commercial, 
recreational, scientific, or educational purposes.

C. Disease or Predation

    The petitioners omitted this section in the discussion of factors 
affecting the species. The petition and our files provided no 
information to document the extent or magnitude of the present or 
future threat of disease or predation to Mojave fringe-toed lizards in 
the Amargosa River area. Therefore, we conclude that there is not 
substantial scientific or commercial information to indicate that 
listing of the Amargosa

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River population of the Mojave fringe-toed lizard may be warranted due 
to disease or predation.

D. Inadequacy of Existing Regulatory Mechanisms

    The petition asserts that no management plan has been drafted to 
include adequate regulatory mechanisms to prevent declines of the 
Amargosa River population of the Mojave fringe-toed lizard and avoid 
listing the species as threatened or endangered. The petitioners 
contend that Federal laws such as the National Environmental Policy Act 
of 1969 (42 U.S.C. 4321 et seq.) (NEPA), as amended, and others do not 
provide for Mojave fringe-toed lizard conservation.
    The petitioners reviewed management plans of Dumont Dunes and 
Coyote Holes, both of which are managed by BLM, concluding that NEPA 
and BLM regulations have provided few protections for the Mojave 
fringe-toed lizard. The petitioners noted that NEPA ``governs 
management of BLM lands'', including those occupied by the Mojave 
fringe-toed lizard. While NEPA does require BLM to analyze the impacts 
its action will have on the environment, NEPA does not require BLM to 
choose the alternative action that would best conserve the species. BLM 
lists the Mojave fringe-toed lizard as a sensitive species. The 
petitioners cite relevant sections of the BLM manual. The BLM manual 
section 6840.06E states: ``The protection provided by the policy for 
candidate species shall be used as the minimum level of protection for 
BLM sensitive species.'' The BLM manual section 6840.06C states: 
``Consistent with existing laws, the BLM shall implement management 
plans that conserve candidate species and their habitats and shall 
ensure that actions authorized, funded, or carried out by BLM do not 
contribute to the need for the species to become listed.'' However, the 
petition points out that the BLM has no management plan for the lizard 
and no areas have been closed to OHV traffic or other uses in order to 
protect the lizard's habitat.
    The National Park Service (NPS) manages Ibex Dunes. The petitioners 
note that the NPS prohibits OHV use at Ibex Dunes, which does provide 
some protection to the Amargosa River population of the Mojave fringe-
toed lizard. However, the petitioners cite a report by the NPS that 
acknowledges OHV visitation occasionally spills over from Dumont Dunes 
into Ibex Dunes (NPS 2004, p. 3). The petitioners further assert that 
field studies by a former Death Valley National Park ecologist show low 
densities of the Mojave fringe-toed lizard at Ibex Dunes, suggesting 
that small amounts of mortality may be sufficient to decimate the 
population (CBD 2006, p. 13).
    We acknowledge that BLM has designated Dumont Dunes as an area open 
to OHV use (Seehafer 2007, p. 1). The OHV area management plan for 
Dumont Dunes does not identify any actions to manage OHV impacts to the 
Mojave fringe-toed lizard within its boundaries (BLM 1990). BLM has not 
developed a management plan to prevent declines or listing of the 
Amargosa River population of the Mojave fringe-toed lizard. BLM does 
not include specific actions to manage the Mojave fringe-toed lizard in 
the Northern and Eastern Mojave Management Plan. Consequently, we 
acknowledge that the lack of BLM regulatory mechanisms to protect the 
Mojave fringe-toed lizard at Dumont Dunes may reduce the likelihood of 
conserving the species at this site.
    Coyote Holes is designated wilderness and closed to OHV use. A BLM 
staff biologist asserts that vehicle access to Coyote Holes is 
effectively prohibited by a bluff and remains in near pristine 
condition (LaPre 2007, p. 1). Due to the wilderness restrictions in 
place at this location and the topographic barriers to human use, the 
lack of regulatory protection does not likely reduce the potential for 
conserving Mojave fringe-toed lizards at this location in the near 
future.
    The National Environmental Policy Act (NEPA) requires all Federal 
agencies to formally document and publicly disclose the environmental 
impacts of their actions and management decisions. However, NEPA does 
not require Federal agencies to take particular actions in response to 
environmental documentation. NEPA documentation is provided in an 
environmental impact statement (EIS), an environmental assessment, or a 
categorical exclusion, and may be subject to administrative or judicial 
appeal.
    The California Department of Fish and Game (CDFG) designated the 
Mojave fringe-toed lizard as a Species of Special Concern. A Species of 
Special Concern is broadly defined as wildlife species that are of 
concern to CDFG because of population declines and restricted 
distributions, and/or they are associated with habitats that are 
declining in California (CDFG 2007). CDFG staff should consider Species 
of Special Concern during: (1) The environmental review process; (2) 
the conservation planning process; (3) the preparation of management 
plans for Department lands; and (4) inventories, surveys, and 
monitoring. Impacts to Species of Special Concern are considered 
significant in the California Environmental Quality Act documents. 
However, compared to listing under the Act, the designation of the 
Mojave fringe-toed lizard as a Species of Special Concern designation 
provides minimal protection for the species or its habitat.
    We acknowledge that illegal OHV trespass onto Ibex Dunes could pose 
a threat to that population of the Mojave fringe-toed lizard. However, 
regulations do exist to prohibit OHV use at Ibex Dunes. The NPS report 
cited by the petitioners also notes that the former OHV access road to 
Ibex Dunes is designated as wilderness and was closed off by the Desert 
Protection Act of 1994 (NPS 2004, p.3). The Desert Protection Act of 
1994 designated approximately 95 percent of Death Valley National Park 
as wilderness. The access road closure should deter illegal OHV 
trespass.
    In summary, we acknowledge that the petitioners have presented 
information that State and Federal regulations listed above may be 
inadequate to conserve the Dumont Dunes population of the Mojave 
fringe-toed lizard. BLM has designated Dumont Dunes as open to OHV use. 
BLM does not have an OHV area management plan for Coyote Holes; 
however, unless future access to Coyote Holes is made available, the 
current regulations should be sufficient for this area. However, we 
believe that current regulations are sufficient to protect fringe-toed 
lizards at Ibex Dunes. We find that the petition, supporting 
information, and information readily available to us does present 
substantial information for this factor indicating that the petitioned 
action may be warranted.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petitioners cite other natural or manmade factors that could 
affect the continued existence of the Amargosa River population of the 
Mojave fringe-toed lizard. The listed threats include population 
isolation, small population size, air pollution, invasive non-native 
vegetation, global climate change, residual pesticides, blocking of 
sand sources, and effects of environmental toxins from nearby military 
operations.
    The Amargosa River population of Mojave fringe-toed lizard occupies 
the following fine sand habitats: Dumont Dunes, Ibex Dunes, and the 
small sand blow-out of Coyote Holes. Dumont Dunes contains the largest 
area of habitat, approximately 9,600 ac (3,885 ha), and is open to OHV 
use. The

[[Page 1861]]

smaller fine sand habitats of Ibex Dunes and Coyote Holes are not open 
to OHV use. Studies provided by the petitioners indicate that low 
densities of Mojave fringe-toed lizards occur over the majority of the 
Amargosa River population's range. We agree with the petitioners that 
species such as the Mojave fringe-toed lizard, that are restricted to 
fine sand habitats, are vulnerable to extinction. However, we do not 
base the decision to list a species as endangered or threatened on its 
restriction to an area or on its rarity, but rather on whether its 
existence is currently or in the future, threatened by one or more of 
the five listing factors.
    The petition cited sources to support the contentions that residual 
pesticides, air pollution, invasive non-native vegetation, global 
climate change, blocking of sand sources, and environmental toxins pose 
threats to the Amargosa River population of the Mojave fringe-toed 
lizard. We found the information cited to be generic in nature and not 
specific to the Amargosa River population of the Mojave fringe-toed 
lizard. These threats cited by the petition are speculative in nature. 
The petition does not provide information that documents the extent, 
magnitude, or immediacy of these other threats to the Amargosa River 
population of the Mojave fringe-toed lizard.
    In summary, we find the other natural or manmade factors cited in 
the petition to be generic in nature and not specific to the Amargosa 
River population of the Mojave fringe-toed lizard. We reviewed the 
petition, supporting information, and the information readily available 
to the Service and find the petition does not present substantial 
information for this factor indicating that the petitioned action may 
be warranted.

Finding

    We reviewed the petition, supporting information provided by the 
petitioners, and information in our files and evaluated that 
information to determine whether the sources cited support the claims 
made in the petition. The petitioners presented substantial information 
indicating that the Mojave fringe-toed lizard may be threatened by 
Factor A and D at Dumont Dunes; as much as 85 percent of the Amargosa 
River population of the Mojave fringe-toed lizard may be at Dumont 
Dunes. The petitioners did not assert that Factors B and C are 
currently, or in the future, considered a threat to this species in any 
area of the Amargosa River population's range, nor did the petitioners 
present substantial information to indicate that Factor E is currently, 
or in the future considered a threat to this species. Based on this 
review and evaluation, we find that the petition presents substantial 
scientific or commercial information such that listing the Amargosa 
River population of the Mojave fringe-toed lizard as threatened or 
endangered may be warranted due to current and future threats under 
Factor A. As part of our status review of the Amargosa River population 
of the Mojave fringe-toed lizard, we will examine the available genetic 
information for the species in greater detail, and make a final 
determination as to whether or not the Amargosa River population is a 
DPS under the Service's DPS policy. Our status review will also include 
an evaluation as to whether significant portions of the Amargosa River 
population warrant listing as threatened or endangered; the petitioners 
assert that a significant portion of the range of the Amargosa River 
population has suffered severe habitat destruction and modification by 
extensive OHV traffic. We will issue a 12-month finding as to whether 
the petitioned action is warranted.
    We encourage interested parties to continue gathering data that 
will assist with the conservation and monitoring of the Mojave fringe-
toed lizard in the Amargosa River area. You may submit information 
regarding the Amargosa River population of the Mojave fringe-toed 
lizard by one of the methods listed in the ADDRESSES section, at any 
time.
    The petitioners requested that critical habitat be designated 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 the Amargosa River population of the Mojave 
fringe-toed lizard is warranted, we will address the designation of 
critical habitat at the time of the proposed rulemaking.

References Cited

    A complete list of all references cited herein is available upon 
request from the Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section).

Author

    The primary author of this notice is the staff of the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section).

Authority

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

    Dated: December 13, 2007.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
 [FR Doc. E8-28 Filed 1-9-08; 8:45 am]
BILLING CODE 4310-55-P