[Federal Register Volume 74, Number 109 (Tuesday, June 9, 2009)]
[Proposed Rules]
[Pages 27266-27271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13313]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2009-0015; MO 922105 0083-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List Oenothera acutissima (Narrowleaf Evening-primrose) 
as Threatened or Endangered

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 list Oenothera acutissima (narrowleaf 
evening-primrose) as threatened or endangered 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 listing O. acutissima may be warranted. Therefore, we will not 
initiate a further status review in response to this petition. We ask 
the public to submit to us any new information that becomes available 
concerning the status of O. acutissima or threats to its habitat at any 
time. This information will help us monitor and encourage the 
conservation of the species.

DATES: The finding announced in this document was made on June 9, 2009. 
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. Supporting documentation we used in preparing this 
finding is available for public inspection, by appointment, during 
normal business hours at the U.S. Fish and Wildlife Service, Western 
Colorado Field Office, 764 Horizon Drive, Building B, Grand Junction, 
CO 81506. Please submit any new information, materials, comments, or 
questions concerning this finding to the above address.

FOR FURTHER INFORMATION CONTACT: Allan R. Pfister, Field Supervisor, 
Western Colorado Field Office (see ADDRESSES section) (telephone 970-
243-2778, extension 29). If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION: 

[[Page 27267]]

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 within the Code of Federal 
Regulations (CFR) 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 review of the status of the 
species.
    We base this finding on information provided by the petitioners 
that we determined to be reliable after reviewing sources referenced in 
the petition and information available in our files at the time of the 
petition review. This finding summarizes the information included in 
the petition and information available to us at the time of the 
petition review. Under section 4(b)(3)(A) of the Act and our 
regulations at 50 CFR 424.14(b), our review of a 90-day finding is 
limited to a determination of whether the information in the petition 
meets the ``substantial [scientific or commercial] information'' 
threshold.
    We received a petition, dated April 12, 2006, from the Center for 
Native Ecosystems and the Colorado Native Plant Society requesting that 
we list Oenothera acutissima as threatened or endangered under the Act. 
Additionally, the petitioners requested that we designate critical 
habitat concurrently with listing. The petition identified itself as 
such and included the requisite identification information for the 
petitioners, as required by 50 CFR 424.14(a). We acknowledged receipt 
of the petition in a letter dated June 15, 2006. In that letter, we 
advised the petitioners that due to prior listing allocations in Fiscal 
Year 2006, we would not be able to begin processing the petition, and 
that following a review of available information, we determined that 
emergency listing of O. acutissima was not warranted. Delays in 
responding to the petition continued due to the high priority of 
responding to court orders and settlement agreements.

Previous Federal Actions

    Oenothera acutissima (known only as Oenothera sp. until Wagner 
provided its full name in 1981) was listed as a Category 2 (C2) 
candidate for listing on December 15, 1980 (45 FR 82480). Category 2 
status included taxa for which information in the Service's possession 
indicated that a proposed listing rule was possibly appropriate, but 
for which sufficient data on biological vulnerability and threats were 
not available to support a proposed rule. In the Candidate Notice of 
Review (CNOR) published on February 28, 1996, we announced a revised 
list of plant and animal taxa that were regarded as candidates for 
possible addition to the Lists of Threatened and Endangered Wildlife 
and Plants (61 FR 7595). The revised candidate list included only 
former Category 1 (C1) species. All former Category 2 species were 
dropped from the list in order to reduce confusion about the 
conservation status of these species, and to clarify that the Service 
no longer regarded these species as candidates for listing. Because the 
species did not meet the threshold of the definition of a C1 species, 
O. acutissima was removed from the candidate list at that time.
    This notice constitutes our 90-day finding on the April 12, 2006, 
petition to list Oenothera acutissima.

Species Information and Listable Entity Evaluation

    Oenothera acutissima is a member of the Onagraceae (evening-
primrose) family. Plants are low-growing, herbaceous, perennial 
rosettes with a long, branching taproot that can produce new shoots. 
Leaves are bright green, stiff, 7-14 centimeters (cm) (2.7-5.5 inches 
(in)) long, and 5-10 millimeters (mm) (0.2-0.4 in) wide with short 
pointed teeth along each edge. Flowers are bright yellow fading to deep 
reddish orange, 2.8-5 cm (1-2 in) long, 2.5-4.3 cm (1-1.7 in) wide 
(Wagner 1981, p. 155). Blooming season is in June, and flowers open in 
late afternoon and close at mid-morning.
    Oenothera acutissima was first recognized by William H. Klein, who 
collected it with H. D. Harrington in 1966 in Moffat County, Colorado. 
The species was described in 1981 by Dr. Warren L. Wagner, Curator of 
Pacific Botany, United States National Herbarium at the Smithsonian 
(Wagner 1981, p. 153). Dr. Stanley Welsh of Brigham Young University 
published this species as Oenothera flava var. acutissima (Welsh et al. 
1987, p. 505). However, Wagner asserts that experiments show the two 
species to be genetically incompatible, and therefore they are two 
distinct species (Wagner 2006, p. 1). Wagner's treatment is accepted by 
PLANTS Database (USDA, NRCS 2007), NatureServe (2007), the Integrated 
Taxonomic Information System online database (2007), the Utah Rare 
Plant Guide (UNPS 2006), the Colorado Rare Plant Field Guide (Spackman 
et al. 1997, pp. 1-2), and Weber and Wittmann (2001, p. 232).

Distribution

    Oenothera acutissima plants grow on sandy and gravelly soils 
derived from red quartzite of the Uinta Mountain Group. Occurrences are 
found in seasonally moist areas in open meadows, depressions, arroyos, 
and rock crevices of conifer forests at 2,600 meters (m) (8,530 feet 
(ft)) elevation down to sagebrush scrub communities at 1,190 m (3,904 
ft) elevation (Wagner 1981, p. 157). O. acutissima is similar to many 
other evening-primrose species in its ability to thrive on open, bare 
soil and disturbed ground.
    The species is known from 12 occurrences in northeast Utah in 
Daggett, Duchesne, and Uintah Counties, and 15 occurrences in Colorado 
in Moffat County, for a total of 27 occurrences. The number of plants 
estimated by the Utah Natural Heritage Program in Utah is 184,950 (UCDC 
2006, 12 records), and estimated by the Colorado Natural Heritage 
Program (CNHP) in Colorado is 3,410 plants (CNHP 2007, 15 records). 
Over the total range of 145 by 48 kilometers (km) (90 by 30 miles 
(mi)), an estimated total of 188,360 plants exist. Land ownership 
recorded by the Heritage Programs includes 13 occurrences on Federal 
U.S. Forest Service, Bureau of Land Management (BLM), and National Park 
Service lands; 3 occurrences are entirely on private land; and 11 
occurrences on a combination of Federal and adjacent private lands 
(UCDC 2006 and CNHP 2007, all records).

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) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B)

[[Page 27268]]

overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. Listing actions may be warranted 
based on any of the above threat factors, singly or in combination.
    Under the Act, a threatened species is defined as a species that is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. An endangered 
species is defined as a species that is in danger of extinction 
throughout all or a significant portion of its range. We evaluated each 
of the five listing factors to determine whether the level of threat 
identified by information in the petition or in our files was 
substantial and indicated that listing Oenothera acutissima as 
threatened or endangered may be warranted. Our evaluation is presented 
below.

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

    The petitioners state that substantial threats to the species' 
habitat include: (1) Livestock trampling; (2) dirt bikes and other off-
road vehicles; (3) noxious weeds and seeding; and (4) roads. Each of 
these topics is discussed below.
Livestock Trampling
    The petitioners state that livestock trampling is the most 
significant potential threat to the species, and follow this assertion 
with several statements:
     Grazing occurs on all lands within Ashley National Forest 
and BLM jurisdiction that support occurrences of the plant, and on most 
private lands that support occurrences. Most sites have been impacted 
by livestock and several have suffered heavy impacts;
     Several occurrences are immediately adjacent to stock 
ponds and other cattle congregation areas;
     Trampling alters the species' microhabitat through the 
effects of soils compaction and changes to water drainage pattern; and
     Actual evidence of impacts from heavy grazing or 
unsustainable concentrations of livestock has been noted at 4 of the 27 
occurrences.
    The petitioners characterize the species as one that appears to 
tolerate moderate levels of habitat disturbance, but may not be able to 
tolerate it in any long-term sense. The petitioners cite Goodrich 
(2001a, p. 1) as indicating that ephemeral surface water and a high 
percentage of bare ground and rock are important elements for the 
species in its habitat, and that ``soil compaction is also a common 
feature to the habitat occupied by the plant at this site [a population 
on the Ashley National Forest].'' Goodrich (2001a, p. 1) predicted that 
as drainage bottoms become more stable and achieve a higher percentage 
of ground cover, Oenothera acutissima could be displaced by grasses. 
The petitioners conclude that the sandy or gravelly microhabitat 
essential for the species may not continue to be available over the 
life of a given meadow or drainage bottom.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    Documentation by Goodrich (2001a, p. 1; 2001b), which is cited in 
the petition, is inconsistent with the petitioners' assumptions about 
the impacts of cattle on Oenothera acutissima. In addition to the 
statement cited above regarding soil compaction, Goodrich (2001a, p. 1) 
indicates that ``ungulate grazing is indicated to be compatible with 
this plant, and at some levels can be expected to increase populations 
of this plant.'' In 1988, 1997, 2001, 2004, 2005, and 2006, Goodrich 
(2006a) revisited several O. acutissima occurrences. In 1988, he 
photographed unusually large plants growing in a highly disturbed 
drainage within a private pasture that had been grazed since the late 
1800s. He again found numerous plants at the same site in 2006 (2006a, 
file  339-1). Goodrich (2006b, p. 1) concluded from these 
examples that livestock grazing is actually compatible with these 
plants.
    Wagner (1981, p. 157) described a site that was heavily grazed in 
1966, where Oenothera acutissima was found growing in rock crevices and 
Oenothera flava was growing 15 m (49 ft) away in clayey soil along the 
shore of a reservoir. Wagner found no plants in the drainage below this 
heavily grazed site from 1973 to 1978, but in 2000, 100 plants were 
found (CNHP 2007, EO ID 3602). This observation supports the conclusion 
that cattle trampling is not a substantial threat to the species, and 
illustrates the resilience of the species in grazed areas. 
Additionally, in Colorado, Culver surveyed seven occurrences where 
plants were present in 2006. She reported some trampling of plants at 
only one occurrence, where she found 500-1,000 plants (CNHP 2007, EO ID 
4727).
    The petitioners' assumptions that Oenothera acutissima, an 
opportunistic species, will not persist long term in conditions of 
continued grazing and trampling, and that stabilization of eroded 
ground will result in too much competition from other plants, are not 
supported by the literature. Goodrich's (2001a, p. 1; 2006b, p. 1) 
field work documented that trampling may help maintain habitat for the 
species. He concludes that persistence of abundant plant populations in 
areas with a long history of grazing indicates compatibility with 
grazing.
    The petition relies on general assumptions about the effects of 
livestock grazing, but does not provide data relevant to this species. 
The petition does not consider the results of field research 
documenting the 100-year co-occurrence of the species with livestock 
grazing, or that trampling by cattle may play a beneficial role in 
maintaining the unique habitat for this particular species, which 
thrives in open areas of bare ground (Goodrich 2001a, p. 1; 2001b; 
2006b, p. 1).
    Based on our evaluation of the information provided in the petition 
and information available to us at the time of petition review, we have 
determined that the petition does not present substantial information 
to indicate that listing of Oenothera acutissima may be warranted due 
to the present or threatened destruction, modification, or curtailment 
of its habitat or range due to livestock trampling.
Dirt Bikes and Other Off-Road Vehicles
    The petition states that off-road vehicles (ORVs) damage and 
destroy Oenothera acutissima plants, change runoff patterns causing 
eroded soils and changed community composition of mesic habitats, and 
cause dust to cover plants. The petitioners indicate that several O. 
acutissima occurrences have been impacted by damage, and that one area 
of habitat supporting plants has been observed with ORV tire tracks 
running through it. They indicate that off-road and cross-country 
travel is allowed in almost all occurrences of O. acutissima, and that 
ORV use is increasing dramatically on public lands of the West.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    The petitioners cite one observation of ORV tracks in plant 
habitat; no information is given to indicate direct impact on plants, 
nor is there any documentation of direct or indirect ORV impacts to 
Oenothera acutissima plants in our files. The petition includes 
generally accepted descriptions of potential threats to plants and 
habitats from ORV use, but does not show that these potential threats 
may result in

[[Page 27269]]

impacts to more than one occurrence of O. acutissima. Again, the 
petitioners have provided general information on a potential threat, 
but not provided any evidence on actual impacts from ORV use.
    On the basis of a review of the information provided by the 
petitioners and that readily available in our files, we have determined 
that the petition does not provide substantial information, nor does 
the Service have information, to indicate that listing Oenothera 
acutissima may be warranted due to the present or threatened 
destruction, modification, or curtailment of its habitat or range due 
to the use of dirt bikes and other ORVs.
Noxious Weeds and Seeding
    The petitioners state that noxious weeds and seeding may constitute 
a threat to Oenothera acutissima because they could eliminate or alter 
the bare ground microhabitat of the species by changing flow patterns 
of water in ephemeral stream channels or by anchoring more soil within 
stream channels. The petitioners indicate that weed species have been 
seen occupying many of the O. acutissima occurrences, and therefore 
noxious weeds are known to be a problem. They indicate that at least 3 
of the 27 O. acutissima occurrences have been invaded by noxious weeds.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    The petition provides no information to substantiate that noxious 
weeds and seeding are impacting, or are likely to impact, Oenothera 
acutissima occurrences. CNHP records describe weeds growing in and 
around springs at two of the three occurrences cited in the petition 
(CNHP 2007, EO IDs 4727, 502). No impacts to the plants are noted in 
CNHP data, and noxious weed species are not mentioned or identified. 
Occurrence records often mention varieties of grasses and forbs growing 
with O. acutissima, but cheatgrass (Bromus tectorum) is the only weed 
species mentioned (CNHP 2007, all records).
    On the basis of a review of the information provided by the 
petitioners and that readily available in our files, we have determined 
that the petition does not present substantial information to indicate 
that listing Oenothera acutissima may be warranted due to the present 
or threatened destruction, modification, or curtailment of its habitat 
or range by noxious weeds and seeding.
Roads
    The petitioners state that most Oenothera acutissima occurrences 
are near roads, and that many occurrences are bisected by roads. They 
indicate that at least seven O. acutissima sites are immediately 
adjacent to roads or trails that provide recreationists with either 
restricted access across O. acutissima habitat or unrestricted open 
access into the habitat. The petitioners indicate that habitat could be 
impacted by soil compaction, fine particle deposition on the plants, 
alterations in hydrologic flow above the plants, spread of invasive 
plants, increased ORV access and use, and destabilization of the 
drainages where the plants are found.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    Roads near or through Oenothera acutissima habitat exist, but no 
available information indicates that roads result in negative effects 
to O. acutissima or its habitat. Available information indicates that 
this species actually takes advantage of ground disturbance associated 
with roads. Goodrich (2006a, files 3-14A2, 3-14RS) compared photographs 
taken in 1997 and 2006 of a roadside occurrence of O. acutissima on 
open range. Plants were monitored and appeared to be increasing along a 
roadside transect between the hardened surface of the road and the 
adjacent sagebrush community. Another pair of photographs (Goodrich 
2006a, file 339-1) showed unusually large O. acutissima plants in the 
highly disturbed down-drainage side of a road culvert in 1988, and 
numerous plants could still be seen in the 2006 photograph of the same 
drainage.
    On the basis of a review of the information provided by the 
petitioners and that readily available in our files, we have determined 
that the petition does not present substantial information to indicate 
that listing Oenothera acutissima may be warranted due to the present 
or threatened destruction, modification, or curtailment of its habitat 
or range by roads and associated access.
Other Threats
    The petitioners also state that some occurrences are threatened by 
other activities, including water diversions and meadow channeling; 
recreational activities including camping, firewood gathering, and 
hunting; logging; dense housing and infrastructure development; changes 
in habitat due to ecological succession; and flooding. The petitioners 
describe four sites where some of these other potential threats are 
present, and these are the same sites that support the highest number 
of plants.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    The petitioners provided no specific information, nor do we have 
any information in our files, to substantiate the extent of these 
activities and their potential impacts on Oenothera acutissima. Once 
again, the question of speculative, generic potential threats has been 
raised, but no evidence on actual impacts from these potential threats 
has been documented.
    On the basis of a review of the information provided by the 
petitioners and readily available in our files, we determined that the 
petition does not present substantial information to indicate that 
listing Oenothera acutissima may be warranted due to the present or 
threatened destruction, modification, or curtailment of its habitat or 
range by other threats, including water diversions and flooding, 
recreational activities, logging, housing and infrastructure 
development, or ecological succession.

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

    The petitioners provide no information, nor do we have any 
information in our files, pertaining to Factor B. Therefore, we have 
determined that the petition does not present substantial information 
to indicate that listing Oenothera acutissima may be warranted due to 
overutilization for commercial, recreational, scientific, or 
educational purposes.

C. Disease or Predation

    The petitioners cite a conversation with Goodrich indicating that 
herbivory is not a serious threat to Oenothera acutissima, because no 
species seems to seek it out for foraging. They note one occurrence 
record of heavily grazed plants.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    One observation of herbivory by cattle and horses is noted in 
occurrence records, where the tips of the plants were grazed along with 
comingled grasses and forbs (CNHP 2007, EO ID 4727). However, one 
observation at one plant occurrence (out of 27) does not present 
substantial information to

[[Page 27270]]

indicate that herbivory is a threat to the species. Therefore, we have 
determined that the petition does not provide substantial information 
to indicate that listing Oenothera acutissima may be warranted due to 
herbivory or other forms of predation.

D. Inadequacy of Existing Regulatory Mechanisms

    The petitioners allege that no Federal, State, or other regulatory 
mechanisms adequately protect Oenothera acutissima, and that BLM fails 
to manage with sensitive species in mind. The petitioners could find no 
record of O. acutissima being considered in management decisions that 
would affect its habitat or occurrences. The petitioners assert that 
few restrictions regarding ORV use exist within the range of O. 
acutissima. They indicate that BLM has failed to designate six Areas of 
Critical Environmental Concern proposed in a working draft of a revised 
Resource Management Plan (RMP), and that BLM is highly unlikely to 
designate these areas given the typical patterns of RMP adoption. The 
petitioners state that the current condition of the plant's habitat is 
evidence that regulatory mechanisms at every level are inadequate.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    Oenothera acutissima is, in fact, managed as a Sensitive Species by 
BLM in Colorado, as designated by the BLM State Director, with special 
management consideration. The BLM Manual 6840 provides policy direction 
that BLM sensitive plant species are to be managed as if they were 
candidate species for Federal listing, in order to preclude listing, 
while also fulfilling other Federal law mandates. BLM manages about 30 
percent of the O. acutissima occurrences (UCDC 2006 and CNHP 2007, all 
records).
    About 24 percent of the species' occurrences are located within 
Ashley National Forest in Utah, managed by the U.S. Forest Service 
(UCDC 2006, all records). The USFS decided in 1996 that O. acutissima 
did not meet its criteria for sensitive status due to: (1) A number of 
surveys that resulted in discovery of several populations and several 
hundreds of individuals, and (2) lack of threats, specifically little 
if any negative impacts due to cattle grazing (Goodrich 2006b, p. 1). 
The USFS continues to monitor the status of the species within its 
grazing allotments (Goodrich 2001a, 2001b, and 2006a, all pages).
    Colorado and Utah do not have State regulatory mechanisms for 
protecting rare plant species; however, the information in the petition 
and currently available in our files does not indicate that the species 
requires additional regulatory mechanisms to sustain it or that it is 
threatened by the lack of regulatory mechanisms necessary to address 
threats. All but 3 of the 27 Oenothera acutissima occurrences are 
completely or partially on Federal land, and are therefore protected 
from some forms of permanent habitat loss, such as residential 
development.
    Further, as indicated in other portions of this finding, the 
petition has failed to present substantial information indicating that 
grazing and ORV use are a threat to Oenothera acutissima throughout the 
species' range. We find that the petitioners' claim that there are few 
restrictions regarding ORV use within the range of O. acutissima does 
not constitute an argument for inadequacy of existing regulations, 
because we do not find substantial evidence that ORV use is a threat.
    Based on our evaluation of the information presented in the 
petition and readily available in our files, we have determined that 
the petition does not present substantial information to indicate that 
listing Oenothera acutissima may be warranted due to the inadequacy of 
existing regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    The petitioners indicate that its extremely narrow range and 
limited habitat type, small number of plants, and small number of 
populations make Oenothera acutissima vulnerable to anthropogenic 
impacts, environmental and genetic stochasticity, and climate change. 
They state that climate change is likely to affect the species because 
a warmer and drier trend has been recorded in the region.
Evaluation of Information in the Petition and Information Available to 
Us at the Time of Petition Review
    No specific information was provided nor is available in our files 
to indicate that population size, range, and number of populations are 
so limited that other natural or manmade factors would substantially 
impact Oenothera acutissima. The petitioners' claims are not supported 
by data or by references that apply to the species or its habitat. The 
total number of plants estimated in Colorado (CNHP 2007, all records) 
and Utah (UCDC 2006, all records) is 188,360 plants scattered over a 
range of 145 by 48 km (90 by 30 mi). No recounts are available to 
precisely compare population sizes and determine whether there has been 
a downward trend in the number of plants. Additionally, no data are 
available to show that a warmer and drier weather trend has negatively 
affected the water supply, habitat, or population sizes of O. 
acutissima.
    In the absence of any data or other information, the petitioners' 
generalized statements regarding other factors that potentially 
threaten Oenothera acutissima are unsubstantiated. Based on our 
evaluation of the information presented in the petition and readily 
available in our files, we have determined that the petition does not 
present substantial information to indicate that listing O. acutissima 
may be warranted due to other natural or manmade factors affecting the 
species' continued existence.

Finding

    We have reviewed the petition, literature cited in the petition, 
and information available in our files. After careful evaluation, we 
find that neither the petition nor information in our files presents 
substantial scientific or commercial information to indicate that 
listing Oenothera acutissima (narrowleaf evening-primrose) as 
endangered or threatened under the Act may be warranted.
    The petitioners state that nearly all Oenothera acutissima 
occurrences are on active grazing allotments, open to ORVs, and near 
roads, and cite generalized information about potential impacts that 
can occur due to these situations. However, few negative impacts to the 
plants have resulted or been documented from the potential threats 
cited in the petition. Little information is presented in the petition 
regarding the magnitude of potential impacts, or whether they may have 
population-level effects. The petitioners state that, when little 
information is available about population trends and impacts of threats 
to specific occurrences, the presence of alleged threats such as 
grazing, combined with scientific information available about the 
typical effects of grazing on such habitat, lead to the conclusion that 
plant occurrences are likely to be negatively affected. However, we 
find that speculation about potential threats and hypothetical impacts, 
without data supporting these claims, does not meet the criteria 
described in the Act on making a finding as to whether a petition 
presents substantial scientific or commercial information indicating 
that a petitioned action may be warranted.
    Our regulations define ``endangered species'' as ``a species that 
is in danger

[[Page 27271]]

of extinction throughout all or a significant portion of its range'' 
(50 CFR 424.02(e)). Similarly, our regulations define a ``threatened 
species'' as ``any species that is likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range (50 CFR 424.02(m)). Our review of the available 
information indicates that the species appears to be maintaining its 
presence in known locations throughout its range from 1966 to the 
present. Despite several potential threat factors, the petition and the 
information in our files do not present substantial information 
indicating that any factor, or combination of factors, suggests that 
the petitioned action, listing as threatened or endangered with 
critical habitat, may be warranted for Oenothera acutissima.
    Although we will not commence a status review in response to this 
petition, we will continue to monitor Oenothera acutissima's population 
status and trends, potential threats, and ongoing management actions 
that might be important with regard to the conservation of the species 
across its range. We encourage interested parties to continue to gather 
data that will assist with the conservation of the species. If you wish 
to provide information regarding O. acutissima, you may submit your 
information or materials to the Field Supervisor, Western Colorado 
Field Office, U.S. Fish and Wildlife Service (see ADDRESSES section).

References Cited

    A complete list of all references cited in this document is 
available upon request from the Western Colorado Field Office (see 
ADDRESSES section).

Author

    The primary authors of this document are the staff members of the 
U.S. Fish and Wildlife Service, Western Colorado Field Office (see 
ADDRESSES section).

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: May 29, 2009.
Stephen Guertin,
Acting Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. E9-13313 Filed 6-8-09; 8:45 am]
BILLING CODE 4310-55-P