[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Proposed Rules]
[Pages 15813-15820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8517]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AE89
Endangered and Threatened Wildlife and Plants; Proposed
Threatened Status for the Plant Rumex Orthoneurus (Chiricahua Dock)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes to list
Rumex orthoneurus (commonly known as Chiricahua or Blumer's dock) as
threatened pursuant to the Endangered Species Act of 1973, as amended
(Act). This plant is a rare Southwest endemic occurring within riparian
and cienega (marshy wetland) habitats. The plant is known from the
Chiricahua, Pinaleno, Huachuca, Sierra Ancha, and White mountains in
Arizona. In New Mexico, the plant is known from the Mogollon and San
Francisco mountains. The plant is also believed to extend into northern
New Mexico in the Pecos Wilderness and to have been extirpated from the
Lincoln National Forest. A site in Mexico in the Sierra de los Ajos has
also been reported. Habitat loss and degradation due to livestock
grazing, recreation, water diversions and
[[Page 15814]]
development, road construction and maintenance, and wildfire imperil
the continued existence of this species. This proposal, if made final,
would extend the Act's protection to this plant. The Service seeks data
and comments from the public on this proposal.
DATES: Comments from all interested parties must be received by July
30, 1998. Public hearing requests must be received by May 18, 1998.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, Arizona Ecological Services Field Office,
U.S. Fish and Wildlife Service, 2321 W. Royal Palm Rd., Suite 103,
Phoenix, Arizona 85021. Comments and materials received will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Field Supervisor at the above address
or at telephone 602/640-2720 or facsimile 602/640-2730.
SUPPLEMENTARY INFORMATION:
Background
Rumex orthoneurus occurs within higher elevation riparian and
wetland habitats in moist, loamy soils or shallowly inundated areas
(cienegas) adjacent to springs and streams. While most of the sites are
in open meadows or along streams with an open canopy, some sites are
shaded. The surrounding habitats are generally mixed conifer (Coronado
National Forest 1993). These adjacent plant communities primarily
include Douglas fir (Pseudotsuga menziesii), ponderosa pine (Pinus
pondersosa), big tooth maple (Acer grandidentatum), and white fir
(Abies concolor) (Van Devender 1980). The dominant species associated
with R. orthoneurus include sneeze weed (Helenium hoopesii), larkspur
(Delphinium andesicola), monkeyflower (Mimulus sp.) and various sedges
(Carex spp.) (Phillips et al. 1980).
Rumex orthoneurus requires a wetland habitat (perennial streams and
springs and cienegas) that is rare in the desert southwest. The Arizona
Game and Fish Department (1993) estimated that riparian vegetation
associated with perennial streams comprises about 0.4 percent of the
total Arizona land area, with present riparian areas being remnants of
what once existed. Riparian and cienega habitats support many species
of limited distribution in the Southwest, and that distribution can
become increasingly restricted due to habitat degradation and loss
(Hendrickson and Minckley 1984).
Habitat areas supporting Rumex orthoneurus are attractive to people
and livestock and, as a result, have been subjected to impacts from
recreation, water development and diversions, and concentrated
livestock grazing (Phillips et al. 1980; Van Devender 1980; Coronado
National Forest 1993; Tonto National Forest 1993; Sue Rutman, botanist,
in litt. 1995; David Hodges, Southwest Center for Biological Diversity
(SCBD), pers. comm. 1995; SCBD, petition, 1996).
Rumex orthoneurus is an herbaceous, robust perennial within the
Polygonaceae (buckwheat family). Plants grow to 1 meter (m) (3.3 feet
(ft)) in height with inflorescence stalks up to 2 m (6.6 ft) in height
on more vigorous specimens. Large basal leaves are up to 50 centimeters
(cm) (19.7 inches (in)) long, 18 cm (7.1 in) wide, and oblong to
oblong-lanceolate in shape. Leaves located along the stem become
shorter and more narrow as they develop upwards. Characteristics
differentiating this plant from other members in its genus with which
it could be confused include rhizomes (creeping underground stems) as
opposed to taproots, lateral leaf veins almost perpendicular to the
middle vein of the leaf, and a lack of swellings on the midribs of the
fruiting capsules (Dawson 1979, Phillips et al. 1980, Coronado National
Forest 1993).
Rumex orthoneurus was first described from a collection of Blumer's
by Rechinger (1936). The collection information noted the following--
Chiricahua Mountains, Barfoot Park in a rolling andesitic pineland that
had been recently lumbered (Dawson 1979). This original type-locality
population was extirpated, possibly as a result of uncontrolled water
diversions in the 1980's (Coronado National Forest 1993). Plants at
this site were introduced from a different population in the Chiricahua
Mountains.
Originally, plants now known from the White, Mogollon, and San
Francisco mountains were believed to be Rumex occidentalis. Several
recent taxonomic studies did not indicate otherwise; however, the
culmination of this work and the most recent research indicates that
plants in the White, Mogollon, and San Francisco mountains are, in
fact, R. orthoneurus (Mount and Logan 1993, Friar et al. 1994, Bellsey
and Mount 1995). Additionally, recent research indicates that R.
orthoneurus extends into northern New Mexico in the Pecos Wilderness
and once occurred on the Lincoln National Forest (Robert Bellsey,
University of Arizona, to Mima Falk, Coronado National Forest, pers.
comm. 1997).
Rumex orthoneurus occurs at 10 sites in Arizona as natural (not
introduced) populations in the Chiricahua, Pinaleno, Huachuca, and
Sierra Ancha mountains. The extent of its occurrence in the White
Mountains of Arizona is being assessed. In the Mogollon and San
Francisco mountains on the Gila National Forest in the Gila Wilderness,
it is reported from the Willow and Silver Creek drainages, tributaries
of the Gila River, and from SA Creek (Bellsey and Mount 1995; Paul
Boucher, Gila National Forest, pers. comm. 1997). It is believed to
have been extirpated from three natural sites in Arizona.
Extensive, poorly documented introductions of Rumex orthoneurus
occurred in the 1980s. Twenty-four introduced populations were
established as a result of this effort. Many are now extirpated or
believed unlikely to persist due to a number of factors, including
management conflicts such as grazing and recreation impacts and poor
site selection for the species' habitat needs (Coronado National Forest
1993, Tonto National Forest 1993). The Tonto National Forest (1993)
identified and designated 15 transplant sites as Priority III
populations expected to be extirpated within the next 50 years as a
result of the factors noted above. The Tonto National Forest now
considers six introduced populations to be extirpated (Stephen Gunzel,
District Ranger, in litt, 1998).
The number of extant individuals in both natural and introduced
populations of Rumex orthoneurus is not known precisely and is
confounded by the species' form of asexual reproduction through
creeping rhizomes. However, overall, numbers have been declining as a
result of impacts from grazing, recreation, road construction and
maintenance, and wildfire (unpublished Service data 1990, Coronado
National Forest 1993, Tonto National Forest 1993). Comparisons over
time of populations occurring on the Tonto National Forest have also
been confounded by different counting and estimating methods (Charles
Bazan, Tonto National Forest, in litt. 1997).
Specific site information for Rumex orthoneurus is limited
primarily to the sites in the Pinaleno, Chiricahua, Huachuca, and
Sierra Ancha mountains. This is the best scientific information
available and is the basis for the Service's knowledge that the species
is declining. An assessment of the other sites by the Forest Service is
presently underway and this information will be valuable in determining
further management needs for the species. For some documented impacts,
such as
[[Page 15815]]
grazing, immediate management actions to remove threats cannot be
implemented until the land management agencies have undertaken
appropriate administrative procedures.
The remaining native Rumex orthoneurus population in the Chiricahua
Mountains occurs at Rustler Park and extends along East Turkey Creek.
The type locality at Barfoot Park was extirpated, and plants there now
were introduced. A site at Upper Cave Creek, not relocated since the
original report by S.B. Bingham in 1976, is presumed extirpated.
In the Pinaleno Mountains, Rumex orthoneurus is known from Mount
Graham at Hospital Flat and Shannon Campground. Both of these natural
populations occur in heavily used public recreation areas (Coronado
National Forest 1993). The Coronado National Forest (1993) notes that
the Hospital Flat site is subject to impacts from regular road
maintenance activities.
Only one natural population of Rumex orthoneurus remains in the
Huachuca Mountains; this site in Scheelite Canyon is under the
administration of the Ft. Huachuca Army Post. While this population is
subject to potential recreation impacts, the predominant threat is
wildfire (Jim Hessil, Ft. Huachuca, pers. comm. 1997). In 1882, J.G.
Lemmon collected R. orthoneurus from Ramsey Canyon in the Huachuca
Mountains; however, this population was extirpated at an unknown date,
possibly from activities associated with the Hamburg Mine (Van Devender
1980, unpublished Service data 1990). In 1990, R. orthoneurus was
reported from Pat Scott Canyon in the Huachuca Mountains; however, that
population has not been relocated (unpublished Service data 1990).
Rumex orthoneurus was believed to have been extirpated from Rose
Creek in the Sierra Ancha Mountains; however, the Tonto National Forest
(1993) reports finding a small number of plants near a developed spring
at the campground located there. Previously, extensive road work and
sedimentation had rendered most of the available habitat unsuitable.
The other three natural populations in the Sierra Ancha Mountains are
at Reynolds Creek, Workman Creek, and Cold Springs Canyon.
The success of introductions of populations of Rumex orthoneurus in
the Chiricahua, Huachuca, and Sierra Ancha mountains has been variable.
Some populations, such as those associated with the Cima Cabin in the
Chiricahua Mountains, appear likely to persist over time. Other
populations, in habitats which are marginal or unstable, are
experiencing management impacts, or have been irretrievably altered by
catastrophic wildfire, are already extirpated or believed unlikely to
persist over time. An up-to-date assessment of the introduced
populations on the Coronado and Tonto National Forests is needed to
fully determine the number of extant introductions remaining. Plants
occurring on the Gila National Forest are reportedly not subject to
grazing impacts (Paul Boucher, Gila National Forest, pers. comm. 1997).
The Service seeks information regarding the status of Rumex
orthoneurus populations elsewhere in New Mexico and Mexico. Information
on the assumed extirpated population(s) on the Lincoln National Forest
and on the status of the reported occurrence in the Sierra de los Ajos
in Mexico is needed.
Previous Federal Action
Federal government actions on Rumex orthoneurus began as a result
of section 12 of the original Endangered Species Act of 1973 which
directed the Secretary of the Smithsonian Institution to prepare a
report on those plants considered to be endangered, threatened, or
extinct in the U.S. This report, designated as House Document No. 94-
51, was presented to Congress on January 9, 1975, and included Rumex
orthoneurus as an endangered species. The Service published a notice on
July 1, 1975 (40 FR 27823) of its acceptance of the report of the
Smithsonian Institution as a petition within the context of section
4(c)(2)(petition provisions are now found in section 4(b)(3) of the
Act) and its intention thereby to review the status of the plant taxa
named therein. The July 1, 1975, notice included Rumex orthoneurus. On
June 16, 1976, the Service published a proposal (41 FR 24523) to
determine approximately 1,700 vascular plant species to be endangered
species pursuant to section 4 of the Act. The list of 1,700 plant taxa
was assembled on the basis of comments and data received by the
Smithsonian Institution and the Service in response to House Document
No. 94-51 and the July 1, 1975, Federal Register publication. Rumex
orthoneurus was included in the June 16, 1976, Federal Register
document. The 1978 amendments to the Endangered Species Act required
all proposals over 2 years old to be withdrawn, although a 1-year grace
period was given to those proposals already more than 2 years old. In
the December 10, 1979, Federal Register (44 FR 70796), the Service
published a notice of withdrawal for that portion of the June 16, 1976,
proposal that had not been made final.
The Service published a Notice of Review for plants in the Federal
Register on December 15, 1980 (45 FR 82480). This notice listed the
status of Rumex orthoneurus as a Category 1 candidate. Category 1
candidates were taxa for which the Service had sufficient information
to support preparation of listing proposals. The species remained a
Category 1 candidate in subsequent Notices of Review published on
November 28, 1983 (48 FR 53640), September 27, 1985 (50 FR 39526),
February 21, 1990 (55 FR 6184), and September 30, 1993 (58 FR 51144).
Beginning with the combined animal and plant Notice of Review
published on February 28, 1996 (61 FR 7596), the Service discontinued
the designation of multiple categories of candidates, and only species
for which the Service has sufficient information to warrant listing
proposals are now recognized as candidates. Rumex orthoneurus was
identified as a candidate in the February 28, 1996, notice and in the
next combined animal and plant notice published on September 19, 1997
(62 FR 49398). Development of a proposed rule to list R. orthoneurus
has been precluded by work on rules for species with a higher listing
priority.
On May 7, 1996, the Service received a petition from
representatives of the Southwest Forest Alliance and the Southwest
Center for Biological Diversity requesting the Service to add Rumex
orthoneurus to the List of Threatened and Endangered Wildlife and
Plants. The petition also requested that critical habitat be designated
concurrent with the listing. A civil action was filed in the District
Court of Arizona on October 2, 1997, alleging the Service's failure to
make a 90-day finding. Under section 4(b)(3) of the Act, the addition
of a species to the candidate list and its maintenance on that list
constitute both a positive 90-day petition finding and a warranted but
precluded 12-month petition finding for that species. Because R.
orthoneurus was already a candidate species when the May 7, 1996,
petition was received, no additional petition findings were required,
except for annual findings pursuant to section 4(b)(3)(C) of the Act.
The need for further annual findings is obviated by this proposed rule.
Processing of this proposed rule conforms with the Service's
Extension of Listing Priority Guidance for Fiscal Year 1997, published
on October 23, 1997 (62 FR 55268). The guidance clarifies the order in
which the Service will process rulemakings following two related
events--the lifting of the
[[Page 15816]]
moratorium on final listings imposed on April 10, 1995 (Public Law 104-
6), and the restoration of significant funding for listing through
passage of the Omnibus Budget Reconciliation Law on April 26, 1996,
following severe funding constraints imposed by a number of continuing
resolutions between November 1995 and April 1996. The guidance calls
for giving highest priority to handling emergency situations (Tier 1);
second priority (Tier 2) to resolving the listing status of outstanding
proposed listings; third priority (Tier 3) to resolving the
conservation status of candidate species and processing 90-day or 12-
month administrative findings on listing or reclassification petitions;
and fourth priority (Tier 4) to proposed or final critical habitat
designations and processing of reclassifications, which provide little
or no additional conservation benefit to listed species. This proposed
rule falls under Tier 3.
Summary of Factors Affecting the Species
Section 4 of the Endangered Species Act and regulations (50 CFR
part 424) promulgated to implement the listing provisions of the Act
set forth the procedures for adding species to the Federal lists. 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). These
factors and their application to Rumex orthoneurus Rechinger
(Chiricahua dock) are as follows.
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Riparian and cienega habitat degradation and loss has been ongoing
as a result of livestock grazing, recreation, water development and
diversion, road construction and maintenance, logging, mining and
associated activities, and wildfire. These activities have all
negatively affected habitat supporting Rumex orthoneurus populations.
Some populations have been extirpated as a result of the activities.
Some of the natural populations in the Chiricahua and Huachuca
mountains have been extirpated, possibly as a result of water
development and diversion, grazing, and mining activities. The site at
Rose Creek in the Sierra Ancha Mountains was believed to have been
extirpated by road construction; a small number of plants were later
found near a spring at the campground located there. One population in
the Pinalenos Mountains is regularly impacted by frequent road
maintenance.
These activities which alter habitat supporting Rumex orthoneurus
continue to pose a threat. Much of this habitat modification is caused
by soil compaction due to recreational and grazing activities with the
result being a loss of suitable niches for seedling establishment, thus
threatening the range of this plant in the future. Many populations
occur in wetland areas subject to heavy public recreation. The Tonto
National Forest (1993) noted evidence of soil compaction and unstable
banks at the Workman Creek sites caused by recreational activities.
The Coronado National Forest (1993) discussed the possible
extirpation of the type locality as a result of water diversions.
Trampling impacts to the population at Hospital Flat and impacts caused
by damming the creek where Rumex orthoneurus occurs have been observed
(David Hodges, Southwest Center for Biological Diversity, pers. comm.
1995). The Coronado National Forest (1993) has stated that recreational
impacts, such as trampling, are difficult to prevent in habitats used
by campers, hikers, and birdwatchers. The Tonto National Forest
receives the highest amount of recreational use of any National Forest
in the U.S. (Eddie Alford, Tonto National Forest, pers. comm. 1997).
Grazing impacts Rumex orthoneurus at the system, population, and
individual plant levels. Rumex orthoneurus occurs in wetland habitats
attractive to livestock for forage, water, and shelter and is highly
palatable to livestock. Populations being grazed often do not produce
seeds. Continued grazing could eventually preclude the population's
continued existence due to a lack of seed production, compacted soils
discouraging seedling establishment, severe trampling of plants and
their creeping underground rhizomes, and destabilization of streambanks
resulting in habitat loss.
Prior to a change in permittees which eliminated trespass grazing,
the Rumex orthoneurus population at Rustler Park in the Chiricahua
Mountains was adversely affected by grazing, with plants appearing
chlorotic, weak, and producing few inflorescences (Falk, Coronado
National Forest, pers. comm. 1997). Activities, including grazing,
which took place in the early 1900s in the vicinity of the historic
Hamburg Mine are believed to be factors causing the extirpation of the
population at Ramsey Canyon in the Huachuca Mountains (Van Devender
1980). Virtually all reported occurrences of R. orthoneurus on the
Apache-Sitgreaves National Forests are being adversely affected by
grazing activities (Apache-Sitgreaves National Forests, unpublished
data, 1997).
Phillips et al. (1980) reported a proposed uranium mining and
milling operation as a threat to the Workman Creek population of Rumex
orthoneurus in the Sierra Ancha Mountains. A campsite was proposed to
be developed, and the bowl area of Carr Mountain (the watershed for the
site) was to be developed into a uranium mill. The Tonto National
Forest Assessment for R. orthoneurus (1993) calls for the removal of
mineral entry for this site; however, it is unknown if this has been
implemented for Workman Creek. The Tonto National Forest is presently
checking into the status of this mining operation and the potential for
future mining.
Wildfire is also a threat to Rumex orthoneurus. The Dude Fire on
the Tonto National Forest, which resulted in increased stream
sedimentation and scouring, destroyed one introduced population and
rendered the habitat no longer suitable, and significantly reduced
available habitat at two other sites. The Bray Creek Fire on the Tonto
National Forest similarly reduced suitable habitat along Bray Creek
(Tonto National Forest 1993). The Bray Creek site is now considered
extirpated. The Rattlesnake Fire on the Coronado National Forest
resulted in a significant decline in the size and extent of one
population; recovery has been slow and limited to areas containing some
remaining suitable substrate. Much of the original creek is now filled
with huge boulders as a result of the catastrophic soil loss following
this fire.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
No use of this species for these purposes is known.
C. Disease or Predation
The primary predation threat to Rumex orthoneurus is from livestock
grazing due to its high palatability and occurrence in wetland habitats
attractive to livestock. It has been speculated that grazing impacts at
some sites have also been caused by deer (Phillips et al. 1980).
Separation of impacts caused by native wildlife versus livestock, or
the wildlife management changes in these wetland habitats has not been
assessed. Grazing by trespass cattle and horses has been a problem in
the recent past even in those sites protected by exclosures.
While the trespass situation in the Chiricahua Mountains appears to
have been resolved within the last year after 8 years of problems,
permitted grazing
[[Page 15817]]
occurs at Rumex orthoneurus sites in the White Mountains on the Apache-
Sitgreaves National Forests and at sites on the Tonto National Forest.
Grazing impacts on the site in the Pecos Wilderness are unknown. The
Gila Wilderness has not had permitted grazing since 1952 (Paul Boucher,
Gila National Forest, pers. comm. 1997). Grazing by cattle has not
occurred since 1947 on the R. orthoneurus sites in the Pinaleno
Mountains (Coronado National Forest 1993). Grazing impacts from horses
used by outfitter guides and recreationists has not been fully
evaluated for most sites.
D. The Inadequacy of Existing Regulatory Mechanisms
Many Federal and State laws and regulations can protect Rumex
orthoneurus and its habitat. However, Federal and State agency
discretion allowed under these laws still permits adverse effects on
listed and rare species. Adding R. orthoneurus to the list of
threatened species will help reduce adverse effects and will direct
Federal agencies to work towards its recovery.
Rumex orthoneurus is not included in either of the Appendices of
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES). It is unlikely it would require the trade
protections of CITES.
The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701
et seq.) and National Forest Management Act of 1976 (16 U.S.C. 1600 et
seq.) direct Federal agencies to prepare programmatic-level management
plans to guide long-term resource management decisions. Forest plans
generally include a commitment to maintain viable populations of all
native wildlife, fish and plant species within the Forest's
jurisdiction (e.g. Coronado National Forest 1986). However, such
general commitments do not preclude adverse effects to rare species by
any National Forest.
The Coronado and Tonto National Forests developed assessments with
management strategies for Rumex orthoneurus in 1993. To date, these
plans have not successfully eliminated adverse effects from grazing and
recreation. More successful implementation is now underway, although
some sites still need recreation management to more fully eliminate
threats. Assessment and management strategies have not been developed
for the sites at the other National Forests or the Ft. Huachuca Army
Post. All land management agencies with lands supporting this species
must address this plant in their fire management planning as wildfire,
with a resulting catastrophic loss of soil and habitat modification,
poses a threat to many populations.
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
Sec. 4321-4370a) requires Federal agencies to consider the
environmental impacts of their actions. The NEPA requires Federal
agencies to describe a proposed action, consider alternatives, identify
and disclose potential environmental impacts of each alternative, and
involve the public in the decision-making process. It does not require
Federal agencies to select the alternative having the least significant
environmental impact. A Federal action agency may choose an action that
will adversely affect listed or candidate species provided these
effects were known and identified in a NEPA document.
The wetland habitats supporting Rumex orthoneurus have a degree of
protection under section 404 of the Clean Water Act and under Federal
Executive Orders 11988 (Floodplain Management) and 11990 (Protection of
Wetlands). These laws and orders have not halted population decline,
extirpation, or habitat losses for R. orthoneurus.
Under the Lacey Act (16 U.S.C. 3371 et seq.), as amended in 1982,
it is prohibited to import, export, sell, receive, acquire, purchase,
or engage in interstate or foreign commerce in any species taken,
possessed, or sold in violation of any law, treaty, or regulation of
the United States, any Tribal law, or any law or regulation of any
State. The Lacey Act can provide a degree of protection to Rumex
orthoneurus to the extent that the species is protected by Arizona
State law (described below) and to the extent the Lacey Act can be
enforced.
The Arizona Native Plant Law (A.R.S. Chapter 7, Article 1) protects
Rumex orthoneurus as ``highly safeguarded.'' A permit from the Arizona
Department of Agriculture (ADA) must be obtained to legally collect
this species from public or private lands in Arizona. Permits may be
issued for scientific and educational purposes only. It is unlawful to
destroy, dig up, mutilate, collect, cut, harvest, or take any living
``highly safeguarded'' native plant from private, State, or Federal
land without a permit. However, private landowners and Federal and
State public agencies may clear land and destroy habitat after giving
the ADA sufficient notice to allow plant salvage. Despite the
protections of the Arizona Native Plant Law, legal and illegal damage
and destruction of plants and habitat continue to occur.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Many of the populations of Rumex orthoneurus occur as small sites
in isolated mountain ranges. The loss of any of these populations
represents a significant curtailment of the species' range, and may
have negative effects on the species' ability to sustain itself over
time. As discussed previously, wildfire can pose a significant threat
to this species. Because of overgrazing and fire suppression, wildfire
can be catastrophic.
The generally low numbers of individuals in mostly scattered,
isolated populations renders Rumex orthoneurus vulnerable to chance
extirpations and potential extinction. Small isolated populations have
an increased probability of extirpation (Wilcox and Murphy 1985). Once
populations are extirpated, natural recolonization of these isolated
habitats may not occur (Frankel and Soule 1981).
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in determining to propose this
rule. Based on this evaluation, the preferred action is to list Rumex
orthoneurus as threatened. This plant is threatened by habitat
degradation and loss caused by livestock grazing, water diversions and
development, recreation, wildfire, road construction and maintenance,
and direct predation by livestock. The species is also subject to an
increased risk of extinction due to the small number and sizes of
populations. While not in immediate danger of extinction, R.
orthoneurus is likely to become an endangered species in the
foreseeable future if the present threats and declines continue.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
consideration or protection and; (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for conservation of the
species. ``Conservation'' means the use of all methods and procedures
needed to bring the species to the point at which listing under the Act
is no longer necessary.
[[Page 15818]]
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Service
regulations (50 CFR 424.12(a)(1)) state that designation of critical
habitat is not prudent when one or both of the following situations
exist--(1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species. The Service finds that
designation of critical habitat is not prudent for Rumex orthoneurus
for the following reasons.
All known populations of Rumex orthoneurus occur on Federal lands.
Some of these sites are small and discrete thus rendering them
vulnerable to vandalism of habitat and plants. Publication of precise
maps and descriptions of critical habitat in the Federal Register, as
required in a proposal of critical habitat, may make this plant
vulnerable to incidents of vandalism. Because designation of critical
habitat may increase the degree of threat to the species, such
designation is not prudent.
In addition, critical habitat designation for Rumex orthoneurus is
not prudent due to lack of benefit. In the U.S., the species occurs
entirely on Federal lands; the U.S. Forest Service and Department of
the Army are aware of the locations of R. orthoneurus populations on
their lands and are either implementing conservation strategies or
developing them at this time. Therefore, informing these Federal
agencies of the locations of the species through designation of
critical habitat is unnecessary.
Furthermore, because it is likely that an activity that would cause
adverse modification of critical habitat would also cause jeopardy to
Rumex orthoneurus, the designation of critical habitat would not likely
provide greater protection for this species or its habitat than that
provided by listing. Critical habitat receives consideration under
section 7 of the Act with regard to actions carried out, authorized, or
funded by a Federal agency (see Available Conservation Measures
section). As such, designation of critical habitat may affect
activities where such a Federal nexus exists. Under section 7 of the
Act, Federal agencies are required to ensure that their actions do not
jeopardize the continued existence of a species or result in
destruction or adverse modification of critical habitat. However, both
jeopardizing the continued existence of a species and adverse
modification of critical habitat have similar standards and thus
similar thresholds for violation of section 7 of the Act. In fact,
biological opinions that conclude that a Federal agency action is
likely to adversely modify critical habitat but not jeopardize the
species for which the critical habitat has been designated are
extremely rare. Because, in the U.S., R. orthoneurus occurs entirely on
Federal lands and because locations of populations of the species are
well known to the managers of these Federal lands, no adverse
modification of this habitat is likely to occur without consultation
under section 7 of the Act. Because of the small size of the species'
current range, any adverse modification of the species' critical
habitat would also likely jeopardize the species' continued existence.
Designation of critical habitat for R. orthoneurus, therefore, would
provide no additional benefit to the species beyond that conferred by
listing.
Protection of the habitat of Rumex orthoneurus will be addressed
through the section 4 recovery process and the section 7 consultation
process. For the reasons discussed above, the Service finds that the
designation of critical habitat for R. orthoneurus is not prudent.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against certain activities involving
listed plants are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in destruction
or adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Rumex orthoneurus is known from the Coronado, Tonto, Apache-
Sitgreaves, Gila, and Santa Fe National Forests and from the Ft.
Huachuca Army Post managed by the Department of Defense.
Examples of Federal actions that may affect this plant include
recreation management, road construction, livestock grazing, water
diversions and developments, granting rights-of-way, and military
activities. These and other Federal actions would require section 7
consultation if the agency determines that the proposed action may
affect listed species.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all threatened
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.71, apply. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the U.S. to import or export,
transport in interstate or foreign commerce in the course of a
commercial activity, sell or offer for sale this species in interstate
or foreign commerce, or remove and reduce the species to possession
from areas under Federal jurisdiction. In addition, for endangered
plants, the 1988 amendments (Pub. L. 100-478) to the Act prohibit the
malicious damage or destruction on Federal lands and the removal,
cutting, digging up, or damaging or destroying such plants in knowing
violation of any State law or regulation, including State criminal
trespass law. Section 4(d) of the Act allows for the provision of such
protection to threatened species through regulation. This protection
may apply to this species in the future if regulations are promulgated.
Seeds from cultivated specimens of threatened plants are exempt from
these prohibitions provided that their containers are marked ``Of
Cultivated Origin.'' Certain exceptions apply to agents of the Service
and State conservation agencies.
The Act and 50 CFR 17.72 also provide for the issuance of permits
to carry out otherwise prohibited activities involving threatened
species under
[[Page 15819]]
certain circumstances. Such permits are available for scientific
purposes and to enhance the propagation or survival of the species. For
threatened plants, permits are also available for botanical or
horticultural exhibition, educational purposes, or special purposes
consistent with the purposes of the Act. It is anticipated that few
permits for trade of Rumex orthoneurus would ever be sought or issued
because the species is not in cultivation or common in the wild.
Information collections associated with these permits are approved
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned
Office of Management and Budget clearance number 1018-0094. For
additional information concerning these permits and associated
requirements, see 50 CFR 17.72 or contact the Office of Management
Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive,
Room 420C, Arlington, Virginia 22203-3507 (phone 703/358-2104,
facsimile 703/358-2281).
It is the policy of the Service published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the maximum extent
practicable those activities that would or would not constitute a
violation of section 9 of the Act if the species is listed. The intent
of this policy is to increase public awareness of the effect of a
species' listing on proposed and ongoing activities within the species'
range. Collection of listed species on Federal lands is prohibited,
although in appropriate cases a Federal endangered species permit may
be issued to allow collection. Actions funded, authorized, or
implemented by a Federal agency that could result in the removal and
reduction to possession of the species on Federal lands would not be a
violation of section 9 of the Act, provided they are conducted in
accordance with any reasonable and prudent measures required by the
Service under section 7 of the Act. The Service is not aware of any
otherwise lawful activities being conducted or proposed by the public
that would affect Rumex orthoneurus and result in a violation of
section 9. Questions regarding whether specific activities would
constitute a violation of section 9 should be directed to the Field
Supervisor of the Service's Arizona Ecological Services Field Office
(see ADDRESSES section).
Public Comments Solicited
The Service intends that any final action resulting from this
proposal will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule are hereby solicited. Comments
particularly are sought concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to this species;
(2) The location of any additional populations of this species and
the reasons why any habitat should or should not be determined to be
critical habitat as provided by section 4 of the Act;
(3) Additional information concerning the range, distribution, and
population size of this species; and
(4) Current or planned activities in the subject area and their
possible impacts on this species.
Final promulgation of the regulation on this species will take into
consideration the comments and any additional information received by
the Service, and such communications may lead to a final regulation
that differs from this proposal.
The Act provides for a public hearing on this proposal, if
requested. Requests must be received within 45 days of the date of
publication of the proposal. Such requests must be made in writing and
addressed to the Field Supervisor (see ADDRESSES section).
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
Required Determinations
This rule does not contain collections of information that require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
References Cited
A complete list of all references cited herein is available upon
request from the U.S. Fish and Wildlife Service, Arizona Ecological
Services Field Office (see ADDRESSES section).
Author
The primary author of this proposed rule is Angela Brooks, Arizona
Ecological Services Field Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, the Service hereby proposes to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend section 17.12(h) by adding the following, in alphabetical
order under Flowering Plants, to the List of Endangered and Threatened
Plants:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family name Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Rumex orthoneurus................ Chiricahua dock..... U.S.A. (AZ, NM), Polygonaceae....... T NA NA
Mexico.
* * * * * * *
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[[Page 15820]]
Dated: March 17, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-8517 Filed 3-31-98; 8:45 am]
BILLING CODE 4310-55-P
