[Federal Register Volume 73, Number 175 (Tuesday, September 9, 2008)]
[Proposed Rules]
[Pages 52257-52260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20673]



[[Page 52257]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0098; 92220-1113-0000-C5]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist the Lahontan Cutthroat Trout

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the Lahontan cutthroat trout 
(Oncorhynchus clarkii henshawi) from the Federal List of Threatened and 
Endangered Wildlife (List) under the Endangered Species Act of 1973, as 
amended (Act). We find that the petition does not present substantial 
scientific or commercial information indicating that removing Lahontan 
cutthroat trout from the List may be warranted. Therefore, we will not 
initiate a status review in response to this petition. However, we are 
currently conducting a 5-year review of this species under section 
4(c)(2)(A) of the Act. This review was initiated on February 14, 2007, 
and will consider information that has become available since the last 
status review. We ask the public to submit to us any new information 
that becomes available concerning the status of, or threats to, the 
Lahontan cutthroat trout or its habitat at any time.

DATES: The finding announced in this document was made on September 9, 
2008. You may submit new information concerning this species for our 
consideration at any time.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov and http://www.fws.gov/nevada. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the Nevada 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1340 
Financial Boulevard, Suite 234, Reno, NV 89502; telephone (775) 861-
6300; facsimile (775) 861-6301. Please submit any new information, 
materials, comments, or questions concerning this finding to the above 
street address.

FOR FURTHER INFORMATION CONTACT: Bob D. Williams, Field Supervisor, or 
Selena Werdon, Assistant Field Supervisor, U.S. Fish and Wildlife 
Service, Nevada Fish and Wildlife Office (see ADDRESSES). Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at (800) 877-8339, 24 hours a day, 7 
days a week.

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 indicating 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 the 
finding promptly in the Federal Register.
    This finding is based on the information included in and with the 
petition and information available in our files at the time of the 
petition review. Under section 4(b)(3)(A) of the Act and our 
regulations in 50 CFR 424.14(b), our review is limited to a 
determination of whether the information in the petition meets the 
''substantial scientific or commercial information'' threshold. 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)). In making this finding, we consider 
whether the petition: (1) Clearly indicates the administrative action 
recommended; (2) contains a detailed narrative justification for the 
recommended measure, describing, based on available information, past 
and present numbers and distribution of the species and any threats 
faced by the species; (3) provides information regarding the status of 
the species over all or a significant portion of its range; and (4) is 
accompanied by appropriate supporting documentation in the form of 
bibliographic references, reprints of pertinent publications, copies of 
reports or letters from authorities and maps (50 CFR 424.14(b)(2)). If 
we find that substantial information was presented, we are required to 
promptly commence a review of the status of the species and publish the 
results of that status review in a 12-month finding.
    The factors for listing, delisting, or reclassifying species are 
described at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction; (2) recovery; or (3) a determination that 
that the original data used for classification of the species as 
endangered or threatened were in error.
    We received a petition dated December 18, 2006, from Dynamic Action 
on Wells Group, Inc. (DAWG) requesting that the Lahontan cutthroat 
trout be removed from the List. The submission clearly identified 
itself as a petition and included the requisite identification 
information of the petitioners, as required in 50 CFR 424.14(a). This 
notice constitutes our 90-day finding on the petition.

Previous Federal Action

    On October 13, 1970, we listed Lahontan cutthroat trout as 
endangered under the Endangered Species Conservation Act of 1969 (Pub. 
L. 91-135, 83 Stat. 275) (35 FR 16047). The species was subsequently 
listed under the Endangered Species Act (Act) of 1973, as amended (16 
U.S.C. 1531 et seq.). On July 16, 1975, we reclassified Lahontan 
cutthroat trout from endangered to threatened (40 FR 29863). We also 
published findings on two previous petitions to delist populations of 
the Lahontan cutthroat trout, one to delist Lahontan cutthroat trout in 
the Truckee River and Pyramid Lake (51 FR 29671; August 20, 1986) and 
the other to delist Lahontan cutthroat trout in the Humboldt River 
Drainage Basin in Nevada (59 FR 28329; June 1, 1994), neither of which 
resulted in a determination that delisting was warranted.

Species Information

Range and Habitat

    Historically, Lahontan cutthroat trout were found in a wide variety 
of cold-water habitats including large, terminal, alkaline lakes (e.g., 
Pyramid and Walker Lakes); alpine lakes (e.g., Lake Tahoe and 
Independence Lake); slow, meandering rivers (e.g., Humboldt River); 
mountain rivers (e.g., Carson, Truckee, Walker, and Marys Rivers); and 
small headwater tributary streams (e.g., Donner and Prosser Creeks). 
Generally, Lahontan cutthroat trout occur in cool flowing water with 
available cover of well-vegetated and stable stream banks, in areas 
where there are stream velocity breaks, and in

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relatively silt-free, rocky riffle-run areas (Service 1995, p. 19).
    The Lahontan cutthroat trout is endemic, or native, to the Lahontan 
Basin of northern Nevada, eastern California, and southern Oregon 
(Service 1995, pp. 3-4). In 1844, there were 11 lake-dwelling 
populations of Lahontan cutthroat trout and 400 to 600 stream-dwelling 
populations in over 5,794 kilometers (km) (3,600 miles) of streams 
within the major basins of Pleistocene Lake Lahontan (Service 1995, p. 
6). Lahontan cutthroat trout currently occupy between 123 and 129 
streams within the Lahontan Basin (Service 1995, p. 7). The species is 
currently found in five historic lakes including Pyramid Lake (Service 
2003a, pp. 41-43), Walker Lake (Service 2003b, pp. 18-21), Fallen Leaf 
Lake (Service 2003a, pp. 41, 58), Independence Lake (Rissler et al. 
2006, pp. 25-27, 34), and Summit Lake (Service 1995, pp. 14-15). 
Lahontan cutthroat trout are also found in numerous lakes and streams 
within the Sierra Nevada and elsewhere outside their historic range 
(Service 1995, pp. 7, 9, 11-13, 18-19, E-9, E-10).

Reproduction

    Lahontan cutthroat trout inhabit lakes and streams but are 
obligatory stream spawners. Small, intermittent, tributary streams and 
headwater reaches are sometimes used as spawning sites (Coffin 1981, p. 
41; Trotter 1987, pp. 129-132). Spawning generally occurs from April 
through July, depending upon stream flow, elevation, and water 
temperature (La Rivers 1962, p. 287; McAfee 1966, p. 227; Lea 1968, pp. 
68-69; Moyle 2002, p. 291). Fecundity of 600-8,000 eggs per female has 
been reported for lacustrine (lake-dwelling) populations (Lea 1968, pp. 
80-83; Cowan 1983, p. 16; Sigler et al. 1983, p. 17; Moyle 2002, p. 
291), while only 100-300 eggs were found in females collected from 
small Nevada streams (Coffin 1981, p. 40). Eggs are deposited in small 
gravels within riffles or pool crests (Service 1995, p. 21). Eggs 
generally hatch within 4-6 weeks, depending on water temperature, and 
fry emerge 13-23 days later (Lea 1968, p. 69; Moyle 2002, p. 291).

Genetics

    The petitioners provided some information about the genetic 
structure of Lahontan cutthroat trout. They state that Lahontan 
cutthroat trout populations in the Lahontan Basin are not genetically 
distinct and that recent studies to identify Lahontan cutthroat trout 
differentiation among Lahontan sub-basins failed to find statistically 
significant variation or asserted sub-basin distinctions without 
adequate evidence (DAWG 2006, p. 5). However, the petition does not 
clearly articulate how this information supports their claim that 
Lahontan cutthroat trout should be delisted (i.e., the genetics 
information does not contribute to a ``detailed narrative justification 
for the recommended measure'' (50 CFR 424.14(b)(2))).

Threats Analysis

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal Lists 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 this 
finding, we evaluated information presented in the petition and its 
supporting information in the context of the above listed five factors 
to determine whether the petition presented substantial information 
indicating that delisting the species under the Act may be warranted. 
Based on information in the petition and other information available in 
our files, our evaluation is presented below.

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

    The petitioners claim that two conditions necessary to delist 
Lahontan cutthroat trout have been met, one being habitat conditions in 
the Pyramid Lake-Truckee River Basin (the other condition necessary to 
delist asserted by the petitioners is discussed under other natural or 
manmade factors affecting its continued existence (Factor E)). The 
petitioners state that most diversions from the lower Truckee River 
have ended, obstructions to Lahontan cutthroat trout spawning in the 
Truckee River have been removed, and Pyramid Lake has increased in 
volume and elevation. The petitioners also state that the Truckee River 
has generated sufficient flows to maintain a viable Lahontan cutthroat 
trout population in Pyramid Lake, and that the Truckee-Pyramid Basin 
could form a potential, naturally reproducing, self-sustaining Lahontan 
cutthroat trout fishery. However, the petition provides no discussion, 
citations, or other sources of more detailed information to support 
their claim that the threat has been eliminated.
    In addition to the lack of supporting information in the petition, 
the petitioners misstate information in the final rule reclassifying 
the species from endangered to threatened (40 FR 29863). The 
petitioners assert that in the final rule we determined that Lahontan 
cutthroat trout is a threatened species because ``water diversions from 
the Truckee River had lowered the water level of Pyramid Lake, silted 
up the mouth of the Truckee River at its entry into the lake, and 
eliminated much of the Lahontan cutthroat trout annual spawn up the 
River from Pyramid Lake'' (DAWG 2006, pp. 3-4). The petitioners also 
state that Walker Lake ``was not mentioned as evidence `pertinent to 
the determination' '' (DAWG 2006, p. 4). However, the petition 
misinterprets the final rule. The final rule stated that ``water 
diversions within its native range continue to be a threat'' and noted 
that this was ``especially evident'' in Pyramid Lake (40 FR 29864). 
While the final rule did not specifically mention Walker Lake, our 
reference to water diversions within the native range of Lahontan 
cutthroat trout encompassed the Walker River drainage and Walker Lake, 
as well as the other streams and lakes discussed above in the Habitat 
and Range section. While improved habitat conditions in the Truckee 
River and Pyramid Lake would contribute to recovery of Lahontan 
cutthroat trout, amelioration of the threat from water diversion also 
would involve areas within the native range of Lahontan cutthroat trout 
in addition to the Truckee River and Pyramid Lake. Thus, the 
petitioners' second assertion that conditions necessary to delist 
Lahontan cutthroat trout have been met is also based on a 
misinterpretation of the final rule.
    To summarize, the petition lacks information to support its 
assertion that threats from diversions in the Truckee River have been 
eliminated, and is incorrect in its assumptions and interpretations of 
the final downlisting rule. Therefore, we find the petition does not 
present substantial information demonstrating that delisting Lahontan 
cutthroat trout across all or a significant portion of its range may be 
warranted at this time due to a lack of threats from any present or 
threatened destruction, modification, or curtailment of the species' 
habitat or range.

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

    The petition did not provide information regarding the effects of 
overutilization for commercial, recreational, scientific, or 
educational purposes on Lahontan cutthroat trout. A review of 
information in our files does not suggest that overutilization for 
commercial, recreational, scientific or educational purposes currently 
threatens Lahontan cutthroat trout. However, we will analyze all 
available information with respect to this factor in our 5-year review 
under section 4(c)(2) of the Act, which was initiated on February 14, 
2007 (72 FR 7064).

C. Disease or Predation

    The petition did not provide information regarding the effects of 
disease or predation on Lahontan cutthroat trout. However, information 
in our files suggests that there may be threats to Lahontan cutthroat 
trout from disease or predation. We will analyze all available 
information with respect to this factor in our 5-year review under 
section 4(c)(2) of the Act, which was initiated on February 14, 2007 
(72 FR 7064). Therefore, we conclude that there is no substantial 
scientific or commercial information to indicate that delisting 
Lahontan cutthroat trout may be warranted due to lack of threats from 
disease or predation.

D. The Inadequacy of Existing Regulatory Mechanisms

    The petition does not present any information pertaining to the 
inadequacy of existing regulatory mechanisms. However, a review of 
information in our files suggests that inadequacy of existing 
regulatory mechanisms may be a concern as it relates to maintenance of 
habitat conditions for Lahontan cutthroat trout. We will analyze all 
available information with respect to this factor in our 5-year review 
under section 4(c)(2) of the Act, which was initiated on February 14, 
2007 (72 FR 7064).

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

    The petitioners referred to the final rule downlisting the Lahontan 
cutthroat trout from endangered to threatened, stating that the final 
rule indicated ``introduced Brook trout were strong competitors for 
food and space, and Rainbow trout were hybridizing with the Lahontan 
cutthroat trout throughout the Lahontan Basin'' (DAWG 2006, p. 4). This 
is an accurate representation of the information presented in the final 
rule (40 FR 29864).
    The petitioners also stated that the final rule listing Lahontan 
cutthroat trout as threatened indicated that ``the explicit resolution 
of the competition/hybridization problem was `regulated taking by 
sport-fishing' and that `sport-fishing was explicitly mentioned as the 
method for reducing competition, hybridization, and overcrowding in 
streams' '' (DAWG 2006, p. 4). With respect to the idea that sport-
fishing will reduce competition from and hybridization with nonnative 
trout, the petitioners misinterpret the information presented in the 
final rule. The final rule indicates that (1) Lahontan cutthroat trout 
would benefit from regulated taking by sport-fishing because stocking 
had led to most suitable streams reaching carrying capacity, and (2) 
sport-fishing ``is an acceptable method of preventing overpopulation 
which could injure a species by taxing the species' habitat'' (40 FR 
29864). Therefore, the final rule acknowledges the role of sport-
fishing in reducing overpopulation in stocked areas, but it does not 
indicate that sport-fishing for Lahontan cutthroat trout ameliorates 
the threat of competition from and hybridization with nonnative trout. 
The petitioners do not present any information to indicate that threats 
posed by the presence of these nonnative species have been ameliorated. 
In addition, the petitioners provide no data or other information 
indicating that sport-fishing will have the effect of ameliorating 
those threats. They state that ``the competition and hybridization 
experienced by the Lahontan cutthroat trout throughout the Lahontan 
Basin has been attenuated by the Nevada Department of Wildlife through 
regulated taking by sport-fishing'' (DAWG 2006, p. 6), without 
providing substantive support for the statement. Therefore, without any 
additional information to evaluate the validity of this statement, we 
find that the petition does not present substantial information 
indicating that delisting of the Lahontan cutthroat trout across all or 
a significant portion of its range may be warranted due to a lack of 
threats from other natural or manmade factors affecting the species' 
continued existence.

Finding

    We have reviewed the petition and supporting information provided 
with the petition under 50 CFR 424.14(b)(2) and the Act, including 
information in the final rule listing Lahontan cutthroat trout as 
threatened. First, our review indicates that the fundamental argument 
for delisting presented in the petition was largely based on 
misinterpretation of information in the final rule downlisting Lahontan 
cutthroat trout from endangered to threatened (40 FR 29863), 
specifically with respect to the extent of the threat from water 
diversions, and with respect to any role sport-fishing for Lahontan 
cutthroat trout may play in ameliorating the threat of competition and 
hybridization with nonnative trout. This resulted in incorrect 
information being presented by the petitioners to support their claims. 
Second, the petitioners did not provide substantive discussion, data, 
citations, or other information supporting their statements suggesting 
that the threats identified in the final listing rule have been 
ameliorated. Specifically, the petition did not discuss or cite 
substantive data or other information supporting the notion that water 
diversions are no longer a threat to Lahontan cutthroat trout in the 
Truckee River and Pyramid Lake and that competition and hybridization 
with nonnative trout have been controlled by sport-fishing. The 
petition also discussed genetic differentiation of Lahontan cutthroat 
trout within the Lahontan Basin, but it did not clearly articulate the 
relevance of the information to delisting of the subspecies.
    Considering the information in the petition under the Act and our 
regulations as stated above, we find that the petition (1) did not 
contain a detailed narrative justification for the recommended measure, 
describing, based on available information, past and present numbers 
and distribution of the species and any threats faced by the species; 
(2) did not provide information regarding the status of the species 
over all or a significant portion of its range; and (3) was not 
accompanied by appropriate supporting documentation in the form of 
bibliographic references, reprints of pertinent publications, copies of 
reports or letters from authorities, and maps (50 CFR 424.14(b)(2)). 
Specifically, the supporting documentation that was provided was not 
appropriate to support the fundamental rationale for the petitioned 
action. Therefore, we find that the petition does not present 
substantial information demonstrating that delisting Lahontan cutthroat 
trout across all or a significant portion of its range may be warranted 
at this time. We encourage interested parties to continue to gather and 
provide data that will assist with the conservation of Lahontan 
cutthroat trout.

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References Cited

    A complete list of all references cited in this document is 
available, upon request, from the Nevada Fish and Wildlife Office (see 
ADDRESSES).

Author

    The primary authors of this notice are staff of Nevada Fish and 
Wildlife Office (see ADDRESSES).

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

    Dated: August 19, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-20673 Filed 9-8-08; 8:45 am]
BILLING CODE 4310-55-P