95-18811. Endangered and Threatened Wildlife and Plants; Proposed Rule to Determine Five Plants and a Lizard from Monterey County, California, as Endangered or Threatened

[Federal Register Volume 60, Number 148 (Wednesday, August 2, 1995)]
[Proposed Rules]
[Pages 39326-39337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18811]



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DEPARTMENT OF THE INTERIOR
50 CFR Part 17
[RIN 1018-AD09]

Endangered and Threatened Wildlife and Plants; Proposed Rule to 
Determine Five Plants and a Lizard from Monterey County, California, as 
Endangered or Threatened
AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) proposes 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for four plants and a reptile: Astragalus tener var. 
titi (coastal dunes milk-vetch), Piperia yadonii (Yadon's piperia), 
Potentilla hickmanii (Hickmann's potentilla), Trifolium trichocalyx 
(Monterey clover) and the black legless lizard (Anniella pulchra 
nigra); and threatened status for Cupressus goveniana ssp. goveniana 
(Gowen cypress). The six taxa are found primarily along the coast of 
northern Monterey County, California. The five plant taxa and the 
lizard are threatened by one or more of the following: alteration, 
destruction, and fragmentation of habitat resulting from urban and golf 
course development; recreational activities; highway widening; military 
activities; competition with non-native species; and alteration of 
natural fire cycles. All taxa are also threatened with stochastic 
extinction due to the small numbers of populations or individuals. This 
proposed rule, if made final, would extend the Act's protection to 
these taxa.

DATES: Comments from all interested parties must be received by October 
9, 1995. Public hearing requests must be received by September 25, 
1995.

ADDRESSES: Comments and materials concerning this proposal should be 
sent to the Field Supervisor, Ventura Field Office, U.S. Fish and 
Wildlife Service, 2493 Portola Road, Suite B, Ventura, California, 
93003. Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Carl Benz, Assistant Field Supervisor, 
Ventura Field Office (see ADDRESSES section) (telephone number 805/644-
1766; facsimile 805/644-3958).
SUPPLEMENTARY INFORMATION:
Background
    The Monterey Peninsula on the central California coast has been 
noted for a high degree of species endemism (Axelrod 1982, Howitt 1972, 
Raven and Axelrod 1978). Species with more northern affinities reach 
their southern limits on the Peninsula; species with more southern 
affinities reach their northern limits here as well (Howitt and Howell 
1964). The Monterey Peninsula is influenced by a maritime climate that 
is even more pronounced due to the upwelling of cool water from the 
Monterey submarine canyon. Rainfall amounts to only 38 to 51 
centimeters (cm) (15 to 20 inches) per year, but summer fog-drip is a 
primary source of 

[[Page 39327]]
moisture for taxa that would otherwise not be able to persist with such 
low rainfall. Some taxa, such as the coastal closed-cone pines and 
cypresses may represent relicts of species that once had a more 
continuous, widespread distribution in the more mesic climate of the 
late Pleistocene period, then retreated to small pockets of cooler and 
wetter conditions along the coast ranges during the hotter and drier 
xerothermic period between 8,000 and 4,000 years ago (Axelrod 1982).
    In 1602, the Spanish government commissioned Sebastian Viscaino to 
map the coastline; he travelled as far north as the Mendocino coast. In 
his journal, he made note of the ``pine covered headlands'' and the 
``great pine trees, smooth and straight, suitable for the masts and 
yards of ships'' that he saw while anchored in Monterey Bay (F.B. 
Larkey in Howitt 1972). During the early 1900s, Willis L. Jepson 
characterized the forests on the Monterey Peninsula as the ``most 
important silva ever'', and encouraged Samuel F. B. Morse of the Del 
Monte Properties Company to explore the possibilities of preserving the 
unique forest communities (F. B. Larkin in Howitt 1972). Morse believed 
that developing recreational facilities would allow income to be 
derived from the property while maintaining the forest intact.
    In 1941, maps were compiled by the U.S. Forest Service to show 
plant associations that were similar in ``fire-hazard characteristics 
and in uses or qualities of economic importance'' (U.S. Forest Service 
1941). The bulk of the Monterey Peninsula was mapped as Monterey pine 
forest with a discrete stand of Bishop pine in the center of the 
peninsula. The coastline was fringed with either ``barren'' stretches, 
grassland, or ``sagebrush'', and a stretch of ``cypress species'' 
extending east along the coast from what is known as Cypress Point. By 
1930, however, the construction of three golf courses likely resulted 
in the removal of a number of Monterey pines.
    Three native Monterey pine (Pinus radiata) stands remain in 
California: on the Monterey Peninsula; near Ano Nuevo Point in northern 
Santa Cruz County; and near Cambria in San Luis Obispo County. The 
Monterey Peninsula stand is not only the most extensive of the three, 
it is also unique in its association with Pinus muricata (Bishop pine), 
Cupressus goveniana ssp. goveniana (Gowen cypress), and Cupressus 
macrocarpa (Monterey cypress). While P. radiata grows well on a wide 
variety of soils, it does not do well on the acidic, poorly-drained 
soils found on Huckleberry Hill centrally located on Monterey 
Peninsula. Here, the less aggressive C. goveniana ssp. goveniana and P. 
muricata are spared competition from P. radiata. Some of the chaparral 
species associated with these forest stands include Arctostaphylos 
pumila (sandmat manzanita), Arctostaphylos hookeri ssp. hookeri 
(Hooker's manzanita), Ceanothus dentatus (toothleaf lilac), and 
Ericameria fasciculata (Eastwood's ericameria) (Holland 1986, Vogl et 
al. 1988).
    Much of what the Forest Service mapped in 1941 as grassland or 
``barren'' (which most likely included coastal dunes) on the peninsular 
coastline has been subsequently converted to golf courses. Remnant 
dunes support a coastal dune scrub community dominated by Artemisia 
pycnocephala (beach sagewort), Baccharis pilularis (coyote bush), and 
several bush lupines (Lupinus arboreus, L. chamissonis). The 
southernmost occurrences for Erysimum menziesii (Menzies wallflower), 
Layia carnosa (beach layia), Lupinus tidestromii (Tidestrom's lupine), 
and Gilia tenuiflora ssp. arenaria (dune gilia), all federally 
endangered species, occur on these remnant dunes (Holland 1986, U.S. 
Fish and Wildlife Service 1992). It is uncertain what species 
characterized the grasslands mapped by the Forest Service. Aside from 
harboring small populations of several of the species that are 
contained within this proposed rule, these patches of herbaceous 
vegetation support a large number of non-native grasses and succulents, 
as well as opportunistic native herbaceous species (Ferreira 1992a, 
Ferreira 1992b). As for the patches mapped by the Forest Service as 
``sagebrush'', these most likely matched what is currently called 
coastal sage scrub, a community dominated by Artemisia californica 
(California sagebrush). For the most part, these patches occurred 
within what are now urbanized portions of the cities of Monterey and 
Pacific Grove and the Pacific Grove Municipal Golf Course.
    Astragalus tener var. titi (coastal dunes milk-vetch) was first 
collected by Mrs. Joseph Clemens in 1904 along 17-Mile Drive on the 
Monterey Peninsula ``near an old hut composed of abalone shells and 
coal-oil cans.'' Alice Eastwood (1905) later named the plant Astragalus 
titi in honor of Dr. F. H. Titus. Subsequently, John Thomas Howell 
(1938), while comparing a specimen of A. tener that was collected by 
David Douglas near Salinas, Monterey County, remarked that although 
``Astragalus titi Eastwood has generally been regarded as the same as 
Astragalus tener, * * * the two plants are not the same and Astragalus 
titi seems worthy of varietal, if not specific recognition.'' Rupert 
Barneby published the combination A. tener var. titi in 1950, noting 
the difference in flower size, habitat, and geographic range between it 
and A. tener var. tener (Barneby 1950).
    Astragalus tener var. titi is a diminutive annual herb of the pea 
family (Fabaceae). The slender, slightly pubescent stems reach 1 to 1.5 
decimeters (dm) (4 to 6 inches) in height, with leaves that are 7 to 11 
pinnately compound and 2 to 7 cm (0.8 to 2.7 inches) long with slightly 
bilobed tips. The tiny lavender to purple flowers are 5 to 6 
millimeters (mm) (0.25 inches) long and are arranged in subcapitate 
racemes of 2 to 12 flowers. The linear seed pods are straight to 
sickle-shaped and 6 to 14 mm (0.25 to 0.6 inches) long (Bittman 1985).
    Two historical locations from Los Angeles County (Hyde Park in 
Inglewood and Santa Monica) and two from San Diego County (Silver 
Strand and Soledad) were annotated by Barneby as Astragalus tener var. 
titi (Barneby 1950). Numerous unsuccessful searches for the plant have 
been made in these locations over the past decade (Ferreira 1992a, 
Julie Vanderweir, botanical consultant, San Diego County, pers. comm., 
1992). It is unlikely that suitable habitat remains, since the Los 
Angeles County locations have been heavily urbanized. The Silver Strand 
area is owned by the Department of Defense (Miramar Naval Weapons 
Center), and a portion has been subjected to amphibious vehicle 
training exercises. Another portion of Silver Strand has been leased by 
the Navy to the California Department of Parks and Recreation for 
development of a campground and recreational facilities.
    The only known extant population of Astragalus tener var. titi 
occurs along 17-Mile Drive on the western edge of the Monterey 
Peninsula on land owned by the Pebble Beach Company. The milk-vetch 
occurs on a relatively flat coastal terrace within 30 meters (m) (100 
feet (ft)) of the ocean beach and 8 m (25 ft) above sea level. The 
loamy fine sands that comprise a series of shallow swales on the 
terrace surface support standing water during wet winter and spring 
seasons. Individual plants are found on the bottoms or sides of the 
swales growing in association with other low growing grasses and herbs, 
including the non-native Carpobrotus edulis (hottentot fig) and 
Plantago coronopus (cut-leaf plantain). In 1992, only 120 

[[Page 39328]]
individuals were counted from the known population, which over the past 
decade had fluctuated from 15 to 1,000 individuals (Ferreira 1992a).
    The population was bisected by construction of 17-Mile Drive, which 
also likely altered the local hydrology. Half of the remaining habitat 
occurs between the road and the ocean bluff's edge, and the other half 
occurs between the interior side of the road and a horse trail that 
runs parallel to a golfing green. Astragalus tener var. titi is 
currently threatened with alteration of habitat from trampling 
associated with several recreational activities, including hiking, 
picnicking, ocean viewing, wildlife photography, equestrian use, and 
golfing. The species also faces threats from stochastic (i.e., random) 
extinction by virtue of the small size of the remaining population. The 
plant may also be threatened with competition from the non-native 
Carpobrotus edulis and Plantago coronopus, though current management by 
the Pebble Beach Company includes hottentot fig removal from a portion 
of the habitat.
    Cupressus goveniana ssp. goveniana (Gowen cypress) was first 
discovered by Karl Hartweg ``on the pine barrens of Huckleberry Hill 
(Monterey Peninsula)'' in 1846. The plant was described as Cupressus 
goveniana by British horticulturalist George Gordon in 1849 who named 
it after fellow horticulturalist James R. Gowen (Sargent 1896). Charles 
Sargent (1896) described the tree as being widely distributed ``from 
the plains of Mendocino County to the mountains of San Diego County'' 
as he included taxa now recognized as distinct in his definition of C. 
goveniana. John G. Lemmon published the name C. goveniana var. pigmaea 
in 1895 to refer to the stands found on the ``White Plains'' of 
Mendocino County, also referred to as pygmy cypress or Mendocino 
cypress. As a result of this segregation, the material from the 
Monterey area would be treated as C. goveniana var. goveniana. However, 
Bartel (1993), in keeping with the use of subspecies in the treatment 
of Cupressus, used C. goveniana ssp. goveniana for the revision of 
Jepson's Manual. The Service is using Bartel's subspecific treatment 
for this taxon.
    Cupressus goveniana ssp. goveniana (Gowen cypress) is a small 
coniferous tree or shrub in the cypress (Cupressaceae) family. Most of 
the 10 taxa in the genus Cupressus found in California have relatively 
small ranges (Bartel 1993). Of the three coastal cypresses, native 
stands of C. macrocarpa (Monterey cypress) and C. goveniana ssp. 
goveniana are both restricted to the Monterey Peninsula and Point Lobos 
in Monterey County.
    Cupressus goveniana ssp. goveniana generally reaches a height 
between 5 and 7 m (17 to 23 ft) (Munz 1968), though Griffin noted one 
individual that was 10 m (33 ft) high at Huckleberry Hill (Griffin and 
Critchfield 1976). The sparsely branched tree forms a short, broad 
crown with a spread of 2 to 4 m (7 to 13 ft). The bark is smooth brown 
to gray, but becomes rough and fibrous on old trees. The scale-like 
foliage is a light rich green, with leaves 1 to 2 mm long (0.04 to 0.08 
inches). The female cones are subglobose (nearly spherical), 10 to 15 
mm (0.4 to 0.6 inches) long, and produce 90 to 110 seeds (Wolf and 
Wagener 1948). The cones, which typically mature in 2 years, remain 
closed for many years while attached to the cone. Seeds can be released 
upon mechanical removal from the tree, or more typically upon death of 
the tree or supporting branch as by heat generated by a wildfire. 
Cupressus goveniana ssp. goveniana is distinguished from its close 
relative C. goveniana ssp. pigmaea (pygmy or Mendocino cypress) by its 
much taller stature, the lack of a long, whip-like terminal shoot, and 
light to yellow-green rather than dark dull green foliage (Bartel 
1993).
    Only two natural stands of Cupressus goveniana ssp.goveniana are 
known to exist, though individuals can be found locally in cultivation. 
Cupressus goveniana ssp. goveniana is associated with Pinus radiata 
(Monterey pine), Pinus muricata (Bishop pine), and several taxa in the 
heath family (Ericaceae) (e.g. Vaccinium, Gaultheria, (Arctostaphylos) 
on poorly drained, acidic, podsol soils (Griffin and Critchfield 1976). 
The largest stand, referred to here as the Del Monte Forest stand, is 
near Huckleberry Hill on the western side of the Monterey Peninsula. 
This stand covers approximately 40 hectares (100 acres), with 
individuals scattered within a kilometer (\1/2\ mile) of the main 
stand.
    At least three fires have burned portions of the Del Monte Forest 
stand in the last 100 years. A large fire burned most of the stand in 
1901 (Coleman 1905, and Dunning 1906, in Vogl et al. 1988). The 
northern portion of the stand apparently burned in 1959 (California 
Department of Fish and Game (CDFG) 1992). The most recent fire burned 
through the central and eastern portions of the population in 1987. 
Wolf and Wagener (1948) reported that patches of crowded, poorly 
developed individuals, referred to as ``canes'', were cut for posts, 
making it difficult to determine the original extent of the grove.
    The Del Monte Forest stand is on lands owned by the Pebble Beach 
Company and the Del Monte Forest Foundation (DMFF). The purpose of the 
DMFF, originally established as the Del Monte Foundation in 1961 by the 
Pebble Beach Company, is to ``acquire, accept, maintain, and manage 
lands in the Del Monte Forest which are dedicated to open space and 
greenbelt'' (DMFF, in litt., 1992). A large portion of the Del Monte 
Forest stand is within a 34-hectare (84-acre) area designated as a 
botanical reserve (Samuel F.B. Morse Botanical Reserve) in the 1960s 
and donated to DMFF in 1976. In the early 1980s, development of the 
Poppy Hills Golf Course removed 840 Gowen cypress trees and surrounded 
other small patches by fairways. The remaining portion of the stand is 
on lands designated as ``open space'', and a conservation easement for 
this area is currently being acquired by DMFF.
    A second smaller stand of Cupressus goveniana ssp. goveniana 
approximately 16 to 32 hectares (40 to 80 acres) in size occurs 10 km 
(6 miles) to the south near Gibson Creek on a 60-hectare (150-acre) 
parcel acquired by the California Department of Parks and Recreation 
(DPR) (Point Lobos State Reserve) in 1962. The very western edge of the 
stand is on privately owned ranchlands (Jones and Stokes Associates, 
Inc. 1989). In this stand, C. goveniana ssp. goveniana is associated 
with Pinus radiata and chaparral species Griffin and Critchfield 1976, 
Vogl et al. 1988). Due to the physical inaccessibility of the Point 
Lobos stand and the Reserve's mandate to protect sensitive plant taxa, 
the Point Lobos stand exhibits fewer signs of human disturbance than 
the Del Monte Forest stand.
    Despite measures taken to protect the Cupressus goveniana ssp. 
goveniana stand at the Del Monte Forest, such as establishing the Morse 
Reserve, the opportunities for maintaining a viable long-term stand may 
be compromised by the site's close proximity to urbanization. This 
species is threatened by habitat alteration and destruction due to the 
influence of continued urban development in Pebble Beach and to the 
disruption of natural fire cycles as a result of fire suppression 
activities. In addition, the Del Monte Forest stand has been invaded by 
aggressive non-native species, including Cortaderia sellanoa 
(pampasgrass) and Cytisus monspessulanus (French broom). An increase in 
such invasive alien plants will undoubtedly alter the composition of 
the plant community and may adversely affect C. goveniana ssp. 
goveniana. The cypress is also 

[[Page 39329]]
threatened with stochastic (i.e., random) extinction due to the small 
amount of habitat occupied by the species.
    Piperia yadonii (Yadon's piperia) was first collected by Leroy 
Abrams in 1925 in open pine forest near Pacific Grove. At that time, it 
was identified as Piperia unalascensi (Morgan and Ackerman 1990), a 
polymorphic, wide-ranging species found from Alaska to Colorado, 
southern California, and northwestern Mexico. In the most recent 
treatment of the genus Piperia, James D. Ackerman (1977) segregated out 
several long-spurred taxa from the P. unalascensis complex, but 
attempted no analysis of the short-spurred forms. Subsequently, Morgan 
and Ackerman (1990) segregated out two new taxa from the P. 
unalascensis complex. One of these, P. yadonii, was named after Vernal 
Yadon, previous Director of the Museum of Natural History in Pacific 
Grove, Monterey County.
    Piperia yadonii is a slender perennial herb in the orchid family 
(Orchidaceae). During the first few years of growth, the plant is 
visible only by its one or two lanceolate to oblanceolate basal leaves 
which die back each winter. In mature plants, the leaves are 10 to 15 
cm (4 to 6 inches) long and 2 to 3 cm (0.8 to 1.2 inches) wide. After 
several years of vegetative growth, the plant sends up a single stem to 
80 cm (31 inches) tall with flowers arranged in a dense narrow-
cylindrical raceme. The flowers consist of three petal-like sepals and 
three petals, which together appear as one flower containing six 
tepals. The upper three tepals are basically green and the lower three 
white. The lowermost tepal is specialized into a lip that is narrowly 
triangular and is strongly decurved such that the tip nearly touches 
the spur of the flower (Morgan and Ackerman 1990). Piperia yadonii is 
sympatric with P. elegans, P. elongata, P. michaelii, and P. 
transversa, but is distinguished from them by the shorter spur length, 
the particular pattern of green and white floral markings, and the 
earlier flowering time (R. Morgan, botanical consultant, Soquel, 
California, pers. comm., 1992).
    Piperia yadonii is found within Monterey pine forest and maritime 
chaparral communities in northern coastal Monterey County from the 
Monterey Peninsula northeast to the Elkhorn Slough area. This plant 
occurs primarily on sandstone and sandy soils that are often poorly 
drained, though dry in summer when the plants are flowering (Morgan and 
Ackerman 1990). Six populations are clustered on the Monterey 
Peninsula; two are on Pebble Beach Company lands, two are on DMFF 
lands, and two are in city parks in Pacific Grove and Monterey. Four 
populations are clustered generally between Prunedale and Elkhorn 
Slough; three of these are on privately owned lands, including one 
population on land managed by The Nature Conservancy (TNC) (Blohm 
Ranch), and one is on County property (Manzanita County Park). One 
small population is located at the northernmost corner of Fort Ord near 
Marina.
    Recent surveys by Morgan indicate that the largest population, 
consisting of approximately 500 individuals, is scattered along a 2.1 
km (1.3 mile) stretch of private road in Pebble Beach (Morgan, in 
litt., 1992). One population, located in Long Valley between Prunedale 
and Elkhorn Slough, comprises approximately 150 individuals; the 
remaining populations range in size from a few individuals to fewer 
than 100 individuals (Morgan, in litt., 1992).
    Piperia yadonii was once more abundant on the Monterey Peninsula. 
Many historic collections were made from the Pacific Grove area, which 
has since been urbanized. It is also likely that the plant was 
previously more abundant in the Prunedale-Elkhorn Slough area; a lack 
of historical collections from this area is probably a reflection of 
the lower intensity of botanical collecting compared to the Monterey 
Peninsula area. Continued alteration and destruction of habitat due to 
urban and golf course development is currently the greatest threat to 
P. yadonii. Other threats include competition with non-native species, 
roadside mowing, and a proposed realignment of Highway 101 known as the 
Prunedale bypass. The small numbers of individuals and populations also 
make P. yadonii vulnerable to stochastic extinction.
    Potentilla hickmanii (Hickmann's potentilla) was originally 
collected by Alice E. Eastwood in 1900 ``near the reservoir which 
supplies Pacific Grove, [Monterey County] California, along the road to 
Cypress Point''. The reference to a reservoir could refer to Forest 
Lake in Pebble Beach but more likely refers to the Pacific Grove 
reservoir (Ferreira 1992b). Eastwood (1902) described the species 2 
years later, naming it after J. B. Hickman who was her guide on that 
collecting trip.
    Potentilla hickmanii is a small perennial herb in the rose family 
(Rosaceae) that annually dies back to a woody taproot. The leaves are 
pinnately compound into generally six paired, palmately cleft leaflets 
each 2 to 8 mm (0.08 to 0.3 inches) long and 1 to 3 mm (0.04 to 0.1 
inches) wide. Several reclining stems 8 to 15 cm (3 to 6 inches) long 
support two to four branched cymes (flowering stems) each of which is 
one- to two-flowered. The flowers consist of 5 ovate to obtuse sepals 6 
mm (0.23 inches) long; yellow obcordate petals 6 mm (0.23 inches) long 
and 5 mm (0.19 inches) wide; and 20 stamens (Abrams 1944, CNPS 1987). 
Potentilla hickmanii is separated from two other potentillas that occur 
on the Monterey Peninsula (P. egedii var. grandis and P. glandulosa) by 
a combination of its small stature, leaflet size and shape, and color 
of the petals.
    Only three historical locations for the plant are known (CDFG 
1992). A collection was made by Ethel K. Crum in 1932, apparently in 
the vicinity of Eastwood's original collection. Ferreira (1992b) 
surveyed the area surrounding the Pacific Grove reservoir in 1992, but 
found no Potentilla hickmanii plants or suitable habitat for the 
species. A second location was observed by E.C. Suttliffe at Moss Beach 
near Half Moon Bay, San Mateo County, in 1933. This occurrence is 
presumed to be extirpated by urban development in the Half Moon Bay 
area.
    Potentilla hickmanii is currently known from only one location, on 
the western Monterey Peninsula, in a meadow opening within Monterey 
pine forest. Loamy fine sandy soils support a meadow community of non-
native grasses and several introduced and native herbs. A total of 24 
individuals of P. hickmanii were located during 1992 surveys, 9 of 
which are within a small exclosure constructed by the Pebble Beach 
Company to protect the plants; the other 15 are located within 30 m 
(100 ft) of the exclosure (Ferreira 1992b). The Pebble Beach Company 
has maintained management responsibilities for the meadow, though 
ownership of the land has been transferred to the Del Monte Forest 
Foundation. Potentilla hickmanii is currently threatened with 
alteration of habitat resulting from recreational activities. The 
meadow, called Indian Village, is available for use by residents of 
Pacific Grove and has been developed as an outdoor recreational park. 
The extremely small numbers of individual plants and populations also 
make P. hickmanii vulnerable to stochastic extinction.
    Trifolium trichocalyx (Monterey clover) is a member of the pea 
family (Fabaceae). The genus Trifolium is well-represented in North 
America, with approximately 50 species recognized in California (Munz 
1959). Members of this herbaceous genus are characterized by the 
palmately three-foliate leaves (hence the name Trifolium) and flowers 
in spheroid or oblong heads. 

[[Page 39330]]

    Trifolium trichocalyx was first collected by Amos A. Heller ``in 
sandy pine woods about Pacific Grove'' in 1903, and described by him 
the following year (Heller 1904). Laura F. McDermott (1910) considered 
the taxon a variety of T. oliganthum in her treatment of the genus, but 
this was not recognized in subsequent floras. Axelrod (1982) deferred 
to Gillett's suggestion that T. trichocalyx is a sporadic hybrid 
between T. microcephalum and T. variegatum and recommended removing it 
from the list of taxa considered Monterey endemics. This view was 
challenged by Vernal Yadon (in litt., 1983) who had grown T. 
trichocalyx and observed that it consistently produces up to seven 
seeds per pod, while both purported parents were two-seeded taxa. 
Trifolium trichocalyx has continued to be recognized as a distinct 
taxon by Abrams (1944), Munz (1959), Howitt and Howell (1964) and Isely 
(1993) and is accepted as such by the Service.
    Trifolium trichocalyx is a much-branched prostrate annual herb with 
leaflets that are obovate-cuneate, 0.4 to 1.2 cm (0.2 to 0.5 inches) 
long, truncate or shallowly notched at the apex, and spinulose-
denticulate along the margins. The numerous flowers are clustered into 
heads subtended by a laciniate-toothed involucre. The calyces are 7 mm 
(0.3 inches) long, toothed, and conspicuously pilose; the purple 
corollas scarcely equal the length of the calyx; the deciduous seed 
pods enclose up to seven seeds. The plant can be quite inconspicuous, 
as the prostrate branches may be only 3 to 4 cm (1.2 to 1.6 inches) 
long. With favorable conditions, however, branches may reach a length 
of 20 to 30 cm (8 to 12 inches) (Abrams 1944, Yadon, in litt., 1983). 
Branches from one large plant may spread through the forest litter and 
give the appearance of many plants. Of the four species of Trifolium 
growing on Huckleberry Hill, all except T. trichocalyx contain two 
seeds per pod. Trifolium trichocalyx is currently known from only one 
area, Huckleberry Hill, covering approximately 16 hectares (40 acres) 
(Ferreira 1992c) on the Monterey Peninsula. The plant occurs in 
openings within Monterey pine forest on poorly drained soils consisting 
of coarse loamy sands. Trifolium trichocalyx appears to be a fire-
follower, taking advantage of the reduced forest cover for the first 
few years after a fire, and then becoming more scarce as it is shaded 
out or outcompeted as the forest community recovers. Heller's 
collection in 1903 was made 2 years after a fire in the area. Only 
scattered individuals were reported by Theodore Niehaus in 1973 and 
1979 and by Yadon in 1980 in forest openings or edges (CDFG 1992). One 
of these sites is presumed to have been extirpated when Poppy Hills 
Golf Course was developed in 1980; the other two are within the 
boundaries of the Morse Botanical Reserve.
    Surveys for Trifolium trichocalyx were conducted in 1988. No plants 
were found at the locations previously reported by Niehaus and Yadon. 
However, several hundred to 1,000 plants were scattered throughout the 
1987, 80-ha (200-acre) burn near Huckleberry Hill, just to the east of 
the historical locations (CDFG 1992). No T. trichocalyx were found 
during a 1992 survey of this area, probably because the dense cover of 
Pinus radiata (Monterey pine) seedlings and resprouting chaparral 
species did not allow the clover to persist. While no living plants of 
T. trichocalyx currently exist in native habitat, it is expected that a 
seedbank will persist in the soil until they are ``released'' again by 
a fire event. Major threats to the continued existence of Trifolium 
trichocalyx include alteration of natural fire cycles, a proposed 
development that overlaps with the southern portion of the habitat for 
the clover (as mapped in 1988), and stochastic extinction due to the 
small amount of remaining habitat and the ephemeral nature of the 
plant's reappearance after fires.
    The black legless lizard was originally described by Fischer in 
1885 as Anniella nigra (Fischer 1885 in Murphy and Smith 1991). It 
differs from the silvery legless lizard, A. pulchra, in having a darker 
dorsum, shorter tail, and longer preanal scales. Currently, the black 
legless lizard is considered a subspecies of A. pulchra (Bezy et al. 
1977), a species with a range extending from the San Francisco Bay area 
south through western California to northern Baja California, Mexico. 
Hunt (1983) revised the taxonomy, changing the name of the black 
legless lizard to A. nigra nigra and the silvery legless lizard to A. 
nigra argenteum. However, this nomenclature was not widely accepted. 
The International Commission on Zoological Nomenclature has been 
petitioned to conserve the name Anniella pulchra nigra (Murphy and 
Smith 1985, 1991); the Commission has not yet responded with an 
official position on the subject. The Service accepts the more widely 
accepted treatment of the black legless lizard as A. pulchra nigra.
    Anniella pulchra nigra has been collected primarily from coastal 
areas of the Monterey Peninsula and Monterey Bay between the Salinas 
and Carmel Rivers (Bury 1985, Miller 1943). Anniella with dark dorsums, 
possibly intergrades with the silvery legless lizard, have been 
collected north of the Salinas River and more than 160 km (100 miles) 
to the south in the Morro Bay and Pismo Beach areas (Miller 1943); the 
taxonomy of Anniella in these intergrade areas is unclear. Miller 
(1943) and Bury (1985) considered the black legless lizard to be 
restricted to the coastal area between the Salinas and Carmel Rivers. 
Bezy and others (1977) showed the black legless lizard as occurring in 
the Monterey area and somewhat south, while Stebbins (1985) considered 
the distribution of this taxon to be the Monterey Peninsula, Monterey 
Bay, and Morro Bay. All of these authors agree that coastal specimens 
of Anniella from between the Salinas and Carmel Rivers are black 
legless lizards. As a result, this proposal applies only to A. p. nigra 
from this area and, specifically, the range of this taxon as described 
by Miller (1943) and Bury (1985).
    Based on electrophoretic analyses of Anniella pulchra nigra 
individuals collected from the vicinity of Asilomar on the Monterey 
Peninsula and Fort Ord on Monterey Bay, Bezy and others (1977) 
demonstrated that genetic distance between A. p. nigra and A. p. 
pulchra was consistent with subspecific classification. Further 
electrophoretic work has demonstrated genetic differences between dark 
morphs of A. p. pulchra from Morro Bay and the A. p. nigra from the 
Monterey Peninsula (Rainey 1984). This latter work also revealed 
considerable differences in allele frequencies among sites on the 
Monterey Peninsula, indicating genetic subdivisions even within that 
limited area. The emergence of a distinct form of Anniella on the 
Monterey Peninsula probably occurred when the Peninsula was isolated 
from the mainland as an island. Also, the Peninsula at one time 
extended farther to the north, providing greater geographic isolation 
than at present. In post-Pleistocene times there were also large rivers 
and bays in lowland areas which may have further isolated populations 
of Anniella (Bury 1985).
    The black legless lizard (Anniella pulchra nigra) is a burrowing, 
limbless lizard about the diameter of a pencil and reaches a maximum 
length of about 23 cm (9 inches). It has a black or dark brown dorsum 
(hatchlings are light colored) and is yellow ventrally (Fisher 1934, 
Gans et al. 1992, Hunt in prep., Stebbins 1985). This species is 
distinguished from the silvery legless lizard (A. p. pulchra) by dark 
dorsal coloration, lower dorsal caudal scale count, and a relatively 
short tail (Bezy 

[[Page 39331]]
et al. 1977, Bury and Corn 1984, Hunt 1983, Miller 1943).
    Bury (1985) surveyed most potential habitat for the black legless 
lizard, as well as sites as far south as Morro Bay and north to Ano 
Nuevo State Reserve in San Mateo County where intergrades might occur. 
Black legless lizards were found at 17 sites, all of which lie on or 
near approximately 45 km (28 miles) of coastline between the Salinas 
and Carmel Rivers. Key sites included City of Monterey lands south of 
Salinas River National Wildlife Refuge, Marina State Beach, and Fort 
Ord, all on Monterey Bay; and several smaller areas on the Monterey 
Peninsula, including dunes or sandy areas at the U.S. Navy Post-
graduate School, Monterey State Beach, Point Pinos, Asilomar State 
Beach, Spanish Bay, and Carmel State Beach. The largest population of 
the black legless lizard on federal land is on the Fort Ord property. 
This military base is undergoing closure; much of the land will be 
transferred to State and University ownership, and habitat management 
plans that call for the protection of the lizard will be developed.
    Within the very limited range of the black legless lizard, habitat 
destruction due to urbanization, particularly on the Monterey 
Peninsula, has severely reduced the distribution of this lizard. About 
60 percent of all localities that historically supported black legless 
lizards no longer contain suitable habitat (Lawrence E. Hunt, 
University of California, Santa Barbara, pers. comm., 1993). Remaining 
habitat is degraded by human trampling, sand mining, vehicular use, and 
introduction of exotic plants, particularly Carpobrotus edulis 
(hottentot fig) and related species and Ammophila arenaria (Marram 
grass). Remaining habitat has also been fragmented by highways and 
other forms of development (Bury 1985).

Previous Federal Action

    Federal government action on the five plants began as a result of 
section 12 of the 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. This 
report, designated as House Document No. 94-51, was presented to 
Congress on January 9, 1975. In that report, Astragalus tener var. 
titi, Potentilla hickmanii, and Trifolium trichocalyx were recommended 
for endangered status. On July 1, 1975, the Service published a notice 
in the Federal Register (40 FR 27823) of its acceptance of the report 
as a petition within the context of section 4(c)(2) (now section 
4(b)(3)(A)) of the Act, and of the Service's intention thereby to 
review the status of the plant taxa named therein. The above three taxa 
were included in the July 1, 1975 notice. On June 16, 1976, the Service 
published a proposal in the Federal Register (42 FR 24523) to determine 
approximately 1,700 vascular plant species to be endangered species 
pursuant to section 4 of the Act. Astragalus tener var. titi, 
Potentilla hickmanii, and Trifolium trichocalyx were included in the 
June 16, 1976, Federal Register proposal.
    General comments received in relation to the 1976 proposal were 
summarized in an April 26, 1978, Federal Register publication (43 FR 
17909). The Endangered Species Act Amendments of 1978 required that all 
proposals over 2 years old be withdrawn. 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 of the portion of the June 6, 1976, proposal that 
had not been made final, along with four other proposals that had 
expired.
    The Service published an updated notice of review for plants on 
December 15, 1980 (45 FR 82480). This notice included Astragalus tener 
var. titi, Potentilla hickmanii, and Trifolium trichocalyx as category-
1 species. Category-1 species are taxa for which data in the Service's 
possession are sufficient to support proposals for listing. On November 
28, 1983, the Service published in the Federal Register a supplement to 
the Notice of Review (48 FR 53640); the plant notice was again revised 
September 27, 1985 (50 FR 39526). In both of these notices, Astragalus 
tener var. titi, Potentilla hickmanii, and Trifolium trichocalyx were 
included as category-2 species. Category-2 species are taxa for which 
data in the Service's possession indicate listing may be appropriate, 
but for which additional data on biological vulnerability and threats 
are needed to support a proposed rule. In the 1985 notice, Cupressus 
goveniana ssp. goveniana (as Cupressus goveniana) was also included for 
the first time as a category-2 species. On February 21, 1990 (55 FR 
6184), the plant notice was again revised, and Astragalus tener var. 
titi, Potentilla hickmanii, and Trifolium trichocalyx were included as 
category-1 species, primarily because of additional survey information 
supplied by the California Natural Diversity Data Base, which indicated 
that the extremely limited populations of these taxa made them 
particularly vulnerable to impacts from a number of human activities 
and naturally caused stochastic events. Those three species also 
appeared as category 1 species in the current plant notice of review 
(September 30, 1993; 58 FR 51144). Cupressus goveniana ssp. goveniana 
was retained as a category-2 species in the 1990 and 1993 notices of 
review.
    Section 4(b)(3)(B) of the Act requires the Secretary to make 
findings on certain pending petitions within 12 months of their 
receipt. Section 2(b)(1) of the 1982 amendments further requires that 
all petitions pending on October 13, 1982, be treated as having been 
newly submitted on that date. This was the case for Astragalus tener 
var. titi, Potentilla hickmanii, and Trifolium trichocalyx because the 
1975 Smithsonian report was accepted as a petition. On October 13, 
1983, the Service found that the petitioned listing of these species 
was warranted but precluded by other pending listing actions, in 
accordance with section 4(b)(3)(B)(iii) of the Act; notification of 
this finding was published on January 20, 1984 (49 FR 2485). Such a 
finding requires the petition to be recycled, pursuant to section 
4(b)(3)(C)(i) of the Act. In October 1984, 1985, 1986, 1987, 1988, 
1989, 1990, 1991 and 1992, the Service found that the petitioned 
listing of Astragalus tener var. titi, Potentilla hickmanii, and 
Trifolium trichocalyx was warranted, but that the listing of these 
species was precluded by other pending proposals of higher priority. 
Publication of this proposal constitutes the final finding for the 
petitioned actions on these three species.
    The portion of this proposal to list Piperia yadonii is largely 
based on scientific and commercial information on the species, 
unpublished reports from the California Department of Fish and Game, 
and information submitted by Randall Morgan, which provides sufficient 
information to support a proposed rule to list this species as 
endangered. Piperia yadonii first appeared as a candidate in the 1993 
notice of review (58 FR 51144) in category 1.
    A reevaluation of the existing data on the status of Cupressus 
goveniana ssp. goveniana and threats to its continued existence 
provides sufficient information to support a proposal to list this 
species as threatened.
    In its original Review of Vertebrate Wildlife, published in the 
Federal Register on December 30, 1982 (47 FR 58454), the Service 
included the black legless lizard as a category-2 candidate for 
listing. Subsequent revised candidate lists published September 18, 
1985 (50 FR 37958); January 6, 1989 (54 FR 554); and November 21, 1991 
(56 FR 

[[Page 39332]]
58804), also included this taxa as a category-2 candidate. New 
information on the extent of habitat loss and the effects of 
Carpobrotus edulis (hottentot fig) on habitat quality now support a 
proposed rule to list this species as endangered.

Summary of Factors Affecting the Species

    Section 4 of the Endangered Species Act (16 U.S.C. 1533) 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 Astragalus 
tener Gray var. titi (Eastw.) Barneby (coastal dunes milk-vetch), 
Cupressus goveniana Gord. ssp. goveniana (Gowen cypress), Piperia 
yadonii Morgan & Ackerman (Yadon's piperia), Potentilla hickmanii 
Eastw. (Hickman's potentilla), Trifolium trichocalyx Heller (Monterey 
clover), and the black legless lizard (Anniella pulchra nigra Fischer) 
are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment 
of its Habitat or Range

    Three of the plant taxa-- Astragalus tener var. titi, Potentilla 
hickmanii, and Trifolium trichocalyx--occur solely on the Monterey 
Peninsula. The largest of two Cupressus goveniana ssp. goveniana stands 
occurs on the Monterey Peninsula, as does the largest population of 
Piperia yadonii. Habitat for all five plant taxa has been altered, 
destroyed, and fragmented by the subdivision of residential lots and 
conversion to golf courses and other recreational facilities.
    Of the approximately 4,000 hectares (ha) (10,000 acres) of Monterey 
Pine forest mapped on the Peninsula by the U.S. Forest Service in the 
1930s, less than 10 percent remains. This remaining 10 percent is 
comprised of scattered islands of forest, the largest of which are a 
few hundred hectares (several hundred acres) in size. The Pebble Beach 
Company is currently developing a proposal to convert 277 ha (685 
acres) into 17 residential subdivisions, another golf course, and 
associated recreational facilities (Pebble Beach Company 1992). Several 
of these subdivisions could remove individuals or clumps of Cupressus 
goveniana ssp. goveniana that currently survive as islands of native 
vegetation within the golf course landscape. A planned subdivision is 
adjacent to occurrences of T. trichocalyx and Astragalus tener var. 
titi at the Indian Village site. Several of the planned subdivisions 
may adversely affect Piperia yadonii.
    Additional development in Pebble Beach is currently being planned 
that may affect habitat for C. goveniana ssp. goveniana, P. yadonii, 
and T. trichocalyx (Pebble Beach Company 1992). A hospice facility, to 
be built on lands donated by the Pebble Beach Company and recently 
approved by the City of Monterey, will remove a portion of a population 
of P. yadonii (Earth Metrics Inc. 1992). Maintenance of facilities, 
including mowing of golf courses and roadsides can indirectly affect A. 
tener var. titi, P. hickmanii, and P. yadonii.
    The black legless lizard was never widely distributed. It is still 
extant within its range between the Salinas and Carmel Rivers; however, 
much of the coastal sandy plains and dunes that were historic habitat 
for this lizard have been converted to urban or other uses, 
particularly on the Monterey Peninsula. Although precise estimates are 
unavailable, in 1984 Bury found fewer than 35 hectares (86 acres) of 
suitable habitat for this species on the Monterey Peninsula (Bury 
1985). Another 10 to 14 ha (25 to 35 acres) of potentially suitable 
habitat existed near Fan Shell Beach on the Monterey Peninsula but was 
not surveyed at the time (R.B. Bury, National Biological Survey, Ft. 
Collins, Colorado, pers. comm., 1993). This habitat is still intact, 
but remains to be surveyed (T. Moss, Asilomar State Beach, California, 
pers. comm., 1993). In reference to the Monterey Peninsula, Bury (1985) 
states that ``prior habitat was much more extensive but has been 
obliterated by urbanization, roadways, sand mining, and other surface-
modifying activities.''
    On Monterey Bay, south of the Salinas River, Bury (1985) identified 
about 374 hectares (925 acres) of potential Anniella pulchra nigra 
habitat, but nearly all areas examined were impacted by one or more 
human uses suspected of negatively impacting legless lizard habitat and 
populations, including sand mining, human trampling, military 
activities, and off-road vehicle activities. The largest contiguous 
tract of black legless lizard habitat exists at Ford Ord, although 
estimates on the extent of habitat differ. Estimates of suitable 
habitat at Fort Ord vary from 190 hectares (470 acres) (Bury 1985) to 
1,206 hectares (2,980 acres) (U.S. Army Corps of Engineers 1993). The 
latter figure is based primarily on potentially suitable habitat in 
which the presence of the black legless lizard has not been confirmed. 
Additional suitable habitat existed in 1984 on unsurveyed private lands 
on Monterey Bay, but this habitat was of limited distribution, in very 
small parcels, and subject to development (R.B. Bury, pers. comm., 
1992).
    Exact amount of habitat loss throughout the range since 1984 has 
not been quantified (R.B. Bury, pers. comm., 1993; T. Moss, pers. 
comm., 1993). Of 27 localities from which legless lizards have been 
collected between the Salinas and Carmel Rivers, only 10 or 11 still 
contain suitable habitat (L. E. Hunt, pers. comm., 1993).
    Although heavily impacted by military activities, the largest 
acreage of remaining suitable habitat for the black legless lizard 
identified by Bury (1985) occurs at Fort Ord. This U.S. Army base is 
scheduled to be closed, with the closure process occurring over a 
period of several years. Activities associated with the closure 
process, such as disposal (sale of the land) and clean-up, could 
adversely affect the species. The future disposition of the land is 
unknown at this time, however, it is likely that some portion of the 
base will be acquired by the private sector for development. Planned 
development at Sand City, adjacent to Fort Ord, would result in a loss 
of black legless lizard habitat, although restoration and long-term 
conservation of lands set aside for Smith's blue butterfly (Ephilotes 
enoptes smithi), a federally listed endangered species, would enhance 
the value of remaining habitat within Sand City for this lizard.

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

    Overutilization is not currently known to be a factor for the five 
plant taxa, but unrestricted collecting for scientific or horticultural 
purposes or excessive visits by individuals interested in seeing rare 
plants could result from increased publicity following publication of 
this proposal. Piperia yadonii, like many other orchids and showy-
flowered monocots, may be particularly vulnerable to collecting by 
amateur and professional horticulturalists due to the plant's 
attractive flower and the ease with which it can be transplanted.
    Vandalism is a potential threat for these plant species. The sites 
that these plants inhabit could be easily vandalized, resulting in the 
destruction of the plants. Many of the sites where these plants exist 
are small and easily accessible, increasing their susceptibility to 
destruction.
    Although the black legless lizard is of interest to many people 
because it is an unusual reptile, overutilization does not 

[[Page 39333]]
appear to be a factor threatening the species (Bury 1985). The State of 
California prohibits taking or possession of black legless lizards 
without a special permit (see Factor D). Federal listing could raise 
the interest in this animal among reptilian trade markets and increase 
the threat of collection. Interest in the species among reptile 
collectors could pose a serious threat to populations that contain few 
individuals.

C. Disease or Predation

    Disease and predation are not known to be factors affecting the 
five plant taxa being proposed as endangered. Several references 
discuss diseases that affect cypresses (Peterson 1967, Wagener 1948). 
However, diseases, such as the oak root fungus (Armillariella mellea) 
and the canker-producing strain of Cornyeum, primarily seem to attack 
cypresses planted outside of their native range and in nursery settings 
(Wagener 1948). No signs of disease or predation have been noted by 
biologists familiar with the two Cupressus goveniana ssp. goveniana 
stands (Jim Griffin, Research Botanist, Hastings Natural History 
Reservation, Carmel Valley, CA, pers. comm., 1992, Yadon, pers. comm., 
1992).
    The black legless lizard has no known diseases, and, although it 
harbors some internal parasites (Hunt and vanLobenSels in press in Bury 
1985), populations of this lizard do not seem to be negatively affected 
by either disease or parasites. Many lizards have broken or scarred 
tails, indicating possible attempted predation (Bury 1985). Miller 
(1944) indicated predation by feral house cats may affect some 
populations.

D. The Inadequacy of Existing Regulatory Mechanisms

    Under the Native Plant Protection Act (California Fish and Game 
Code section 1900 et seq.) and the California Endangered Species Act 
(California Fish and Game Code section 2050 et seq.), the California 
Fish and Game Commission has listed Astragalus tener var. titi, 
Potentilla hickmanii, and Trifolium trichocalyx as endangered. Piperia 
yadonii and Cupressus goveniana ssp. goveniana are on List 1B of the 
California Native Plant Society's (CNPS) Inventory (CNPS 1992), 
indicating that, in accordance with section 1901, of the California 
Department of Fish and Game Code, it is eligible for State listing. 
Though both the Native Plant Protection Act and the California 
Endangered Species Act prohibit the ``take'' of State-listed plants 
(section 1908 and section 2080), State law appears to exempt the taking 
of such plants via habitat modification or land use change by the 
landowner. After the California Department of Fish and Game notifies a 
landowner that a State-listed plant grows on his or her property, State 
law requires only that the landowner notify the agency ``at least 10 
days in advance of changing the land use to allow salvage of such 
plant'' (section 1913).
    The Pebble Beach Company, the primary landowner on the Monterey 
Peninsula, has developed policy to protect sensitive species and 
habitats for current management activities, as well as planning of 
future development (Fryberger, in litt., 1992). While portions of the 
Astragalus tener var. titi population and the Potentilla hickmanii 
population have been fenced off, the remaining portions remain 
vulnerable to disturbance. No specific protection currently exists for 
Piperia yadonii. Cupressus goveniana ssp. goveniana and habitat for T. 
trichocalyx are partially protected by the restriction on development 
within the Morse Reserve. However, development of a golf course in the 
early 1980s removed a significant number of C. goveniana ssp. goveniana 
trees and fragmented the remaining habitat. Development is currently 
being planned within historical habitat for both of these taxa adjacent 
to the Reserve.
    A management plan for Point Lobos State Park (California Department 
of Parks and Recreation 1979) states that the major management effort 
within the preserve will be ``management toward the pristine state, 
that is, the state the ecosystem(s) would have achieved if European man 
had not interfered,'' but also to provide limited public access to the 
Cupressus goveniana ssp. goveniana area. The stand is currently 
protected from human disturbance by virtue of its isolation and lack of 
public access, but the acquisition of key parcels now in private 
ownership may allow for development of limited public access. Any 
future development on adjacent private parcels may increase the 
vulnerability of C. goveniana ssp. goveniana to human disturbance.
    The black legless lizard is listed as a protected reptile under 
Section 650 of the California Sport Fishing regulations. Except under 
special permit from the California Department of Fish and Game, 
collection of black legless lizards is prohibited by the State of 
California. The habitat of this species, however, is not specifically 
protected by any State or Federal regulation. Land use on black legless 
lizard habitat is controlled by local zoning, California State Park 
regulations on State parks such as Marina and Monterey State Beaches, 
and land management practices on Federal lands, including the Salinas 
River National Wildlife Refuge, Fort Ord, and the Naval Post-graduate 
School. The black legless lizard is often given special consideration 
in land use planning and National Environmental Policy Act and 
California Environmental Quality Act compliance documents. The 
California Coastal Act regulates approval of developments within the 
coastal zone and has slowed the loss of coastal habitats such as the 
dunes and sand habitats used by black legless lizards. This species has 
also been afforded some protection indirectly through special 
management for Federal candidate plant species that occur in coastal 
areas. Where the black legless lizard is sympatric with the endangered 
Smith's blue butterfly, protection of habitat for the butterfly has 
also benefitted the legless lizard.
    These regulatory mechanisms have slowed the loss, degradation, and 
fragmentation of black legless lizard habitat, but additional 
protection is needed to address regional habitat conservation and long-
term survival and recovery of this species.
    Sand City is in the process of developing a habitat conservation 
plan for a 13 acre area known as East Dunes. This area supports Smith's 
blue butterfly (Euphilotes enoptes smithi), Gilia tenuiflora var. 
arenaria (sand gilia), Chorizanthe pungens var. pungens (Monterey 
spineflower), species that are federally listed as endangered, and the 
black legless lizard. Sand City is including the black legless lizard 
in this planning process, and it is likely that the plan would 
adequately provide for the conservation needs of the lizard on this one 
site.
E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Two of the five plant taxa occur in small patches of meadow habitat 
containing a high percentage of non-native taxa. Along 17-Mile Drive, 
Astragalus tener var. titi occurs with the non-native Plantago 
coronopus (cut-leaf plantain) and Carpobrotus edulis. These non-native 
species spread rapidly and compete aggressively with native species for 
space. The Pebble Beach Company has an active C. edulis eradication 
program in and adjacent to the exclosure on the ocean side of 17-Mile 
Drive. However, C. edulis has been planted and is being maintained 
within a few feet of the unfenced portion of the milk-vetch habitat on 
the inland side of 17-Mile Drive, and P. coronopus, a prolific seeder, 
is physically crowding 

[[Page 39334]]
out native species on both sides of 17-Mile Drive (Ferreira 1992a).
    The only population of Potentilla hickmanii occurs at Indian 
Village, where Ferreira (1992b) noted four non-native grass taxa 
associated with the potentilla at this site: Aira caryophylla, Bromus 
mollis, Festuca arundinacea, and Lolium multiflorum. The Festuca may 
have been introduced in a ``meadow mix'' used on adjacent fairways; its 
stature and invasiveness appear to offer competition to the potentilla. 
Plantago coronopus is also present at this site.
    Cortaderia atacamensis (pampasgrass) and Cytisus sp. (genesta) are 
two other alien plant taxa that compete with native species on the 
Monterey Peninsula. The Pebble Beach Company has an on-going 
eradication program for these two taxa in the Huckleberry Hill area 
adjacent to the Cupressus goveniana ssp. goveniana. However, numerous 
fire roads provide open habitat for these invasive taxa and it is 
unlikely that they will ever be completely eradicated from the area.
    Nearly all occupied or potentially occupied black legless lizard 
localities have substantial populations of exotic plants, particularly 
Carpobrotus edulis (hottentot fig). Legless lizards are primarily 
associated with moist soil and leaf litter under native vegetation such 
as Lupinus albifrons (bush lupine), Haplopappus ericoides (mock 
heather), and Artemisia sp. (sagewort), and are less abundant in areas 
dominated by C. edulis (Bury 1985, City of Sand City 1992, Miller 1944, 
Morey 1988, Stebbins 1954). As part of habitat restoration efforts at 
Asilomar State Beach, over 12 hectares (30 acres) of C. edulis were 
removed by hand. During this effort, black legless lizards were not 
found in pure stands of C. edulis, but were encountered where native 
shrubs were mixed with the hottentot fig (T. Moss, pers. comm., 1993). 
Hottentot fig may negatively affect insect populations, the prey base 
for the black legless lizard (Miller 1944, Stebbins 1954), and thus, 
adversely affect Anniella populations (Bury 1985).
    Fire plays an important role in the regeneration of all cypress 
taxa. Alteration of the natural fire cycle may negatively affect 
Cupressus goveniana ssp. goveniana regeneration. Fire is essential 
since it opens cones that otherwise remain unopened on the trees, and 
it creates conditions appropriate for seedling establishment (Vogl et 
al. 1988).
    Griffin (pers. comm., 1992) and Ferreira (1992c) have noted that 
establishment of Pinus radiata (Monterey pine) seedlings after the 1987 
fire has been so vigorous that the pine may be expanding its range at 
the expense of Cupressus goveniana ssp. goveniana. Yadon (retired 
Director, Pacific Grove Museum of Natural History, pers. comm., 1992) 
believes that the pine's preference for richer soils than those that 
support C. goveniana ssp. goveniana would prevent long-term 
establishment of pines in C. goveniana ssp. goveniana habitat.
    Alteration of habitat due to continuing recreational use of 
portions of Pebble Beach threaten the precipitously small populations 
of Astragalus tener var. titi, and Potentilla hickmanii. Trampling by 
humans and horses can affect these taxa directly, as well as alter soil 
compaction and erodability such that non-native taxa increase at the 
expense of native taxa.
    At least three, and possibly all, of the five plant taxa are 
threatened with stochastic extinction by virtue of the limited number 
of individuals and/or range of the existing populations. Inbreeding may 
affect small populations, making local extirpations more likely from 
the inability to produce viable offspring in sufficient numbers. Small 
populations are also vulnerable to extinction by a single human-caused 
or natural event. While annual plant taxa, such as Astragalus tener 
var. titi, will undergo radical fluctuations in population size, the 
long-term perpetuation of this taxa depends on maintaining seed 
production at some critical level, and maintaining appropriate habitat 
for population expansion. While short-lived perennial taxa like Piperia 
yadonii and Potentilla hickmanii may be able to persist through a few 
climatically unfavorable years, it is still essential to maintain 
critical seed production levels and to maintain appropriate habitat. 
Trifolium trichocalyx exemplifies a taxon that may persist only as a 
seedbank for years until released by a fire event. Maintaining habitat 
and certain fire management prescriptions may be required to prevent 
the extinction of this species.
    The range occupied by Cupressus goveniana ssp. goveniana is 
considered extremely small; only Cupressus abramsiana (Santa Cruz 
cypress) and C. macrocarpa (Monterey cypress) have stands that occupy 
as few hectares (acres) as C. goveniana ssp. goveniana (Griffin and 
Critchfield 1976). Apparently the 1901 fire on Huckleberry Hill reduced 
C. goveniana ssp. goveniana to only a few hectares. Though later 
observers commented on the extent of recolonization after the fire 
(Dunning 1906 in Vogl et al. 1988, Wolf 1948), the reduction in genetic 
variability from such events may leave species unable to adapt to 
changing environmental conditions (Brussard 1985, Menges 1990, Shaffer 
1981).
    Existing black legless lizard habitat is severely fragmented due to 
construction of roads, golf courses, and other urban development that 
creates barriers to movement and isolates populations. Some extant 
populations are restricted to extremely small habitat patches, such as 
at Monterey State Beach and the U.S. Navy Post-Graduate School, where a 
population persists on a remnant 0.5-hectare (1.2-acre) habitat patch 
(Bury 1985). Because of small size, these fragmented populations have 
an increased probability of extinction from stochastic (i.e., random) 
events (Wilcox and Murphy 1985). Once extirpated, isolation can prevent 
recolonization of these habitat patches (Frankel and Soule 1981).
    The black legless lizard exhibits relatively low fecundity and it 
is suspected that not all adult females breed each year (Goldberg and 
Miller 1985, Miller 1944). The related silvery legless lizard has a 4 
month gestation period, and produces only 1 or 2 eggs per adult female 
per year (Goldberg and Miller 1985). Similarly, an average of 1.7 eggs 
were found in the oviducts of black legless lizards (Miller 1944). This 
low reproductive potential implies relatively long population recovery 
times and a heightened sensitivity to habitat impacts such as off-road 
vehicles, trampling, and other disturbances.
    Strong storms and extreme high tides periodically occur at Monterey 
Bay. These high tides can result in erosion of coastal dunes and 
shorelines, causing destruction of habitat and mortality of black 
legless lizards. Without adjacent refugia, such habitats can become 
devoid of lizards with little chance of recolonization. Because of the 
fragmented distribution and relatively low reproductive potential of 
the black legless lizard, these natural events may increase the chance 
of local extirpations.
    As mentioned in Factor A, the alien plant Carpobrotus edulis may 
negatively impact native insect populations that provide prey for 
Anniella species (Miller 1944) and that could conceivably affect 
Anniella populations (Bury 1985).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these species in determining to propose this 
rule. Based on this evaluation, the Service finds that Astragalus tener 
var. titi, Piperia yadonii, Potentilla 

[[Page 39335]]
hickmanii, Trifolium trichocalyx, and the black legless lizard are in 
imminent danger of extinction throughout all or a significant portion 
of their ranges. Threats to these four taxa include one or more of the 
following: habitat destruction, residential development, road 
maintenance activities, competition from alien plants, alteration of 
natural fire cycles, military activities, and extinction from 
stochastic events.
    For the reasons discussed above, the Service finds that Cupressus 
goveniana ssp. goveniana is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
due to habitat alteration and destruction, urban development, 
disruption of natural fire cycles, competition from alien plants, and 
stochastic events. The Service has determined that threatened rather 
than endangered status is appropriate for C. goveniana ssp. goveniana 
primarily because one of two populations (the Gibson Creek stand 
managed by the California Department of Parks and Recreation) has not 
been significantly affected by human activities. Also, since it is 
long-lived, C. goveniana ssp. goveniana may be able to withstand a 
certain level of habitat disturbance as long as sufficient habitat is 
maintained. Other alternatives to this action were considered but not 
preferred because not listing this species at all would not provide 
adequate protection and not be in keeping with the purposes of the Act, 
and listing it as endangered would not be appropriate, as the 
California Department of Parks and Recreation has decreased the danger 
of extinction at the present time. Therefore, the preferred action is 
to propose Astragalus tener var. titi, Piperia yadonii, Potentilla 
hickmanii, Trifolium trichocalyx, and the black legless lizard as 
endangered; and Cupressus goveniana ssp. goveniana as threatened.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that, to the 
maximum extent prudent and determinable, the Secretary designate 
critical habitat at the time the taxa are determined to be endangered 
or threatened. Critical habitat results in additional protection to a 
species' habitat with respect to projects that are federally 
authorized, funded, or carried out, through the consultation 
requirements described in section 7 of the Act. The Service finds that 
designation of critical habitat is not presently prudent for these 
taxa. The Service's 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 imperiled by taking or 
other human activity, and identification of critical habitat can be 
expected to increase the degree of such threat to the species; or (2) 
such designation of critical habitat would not be beneficial to the 
species.
    In the case of Astragalus tener var. titi, Potentilla hickmanii, 
Piperia yadonii, Cupressus goveniana ssp. goveniana, Trifolium 
trichocalyx, and the black legless lizard both criteria are met. The 
publication of critical habitat descriptions and maps required in a 
proposal for critical habitat could increase the degree of threat to 
these six taxa from possible take or vandalism and, therefore, could 
contribute to their decline and increase enforcement problems. These 
six taxa occur within small areas at few locations and are vulnerable 
to stochastic extinction. The listing of these plants and the lizard as 
either endangered or threatened publicizes the rarity of the taxa and 
thus can make them attractive to researchers, curiosity seekers, or 
collectors of rare plants or animals.
    A determination of critical habitat would result in no known 
benefit to these taxa. The closure of Fort Ord is resulting in the 
transfer of lands to State Parks and the University of California at 
Santa Cruz ownership. These lands will be designated as protected 
habitats for which habitat management plans are under development. 
Other than the Fort Ord property, most of the known populations of 
these species are found on state or private lands where Federal 
involvement in land-use activities does not generally occur. Additional 
protection resulting from critical habitat designation is achieved 
through the section 7 consultation process. Since section 7 would not 
apply to land-use activities occurring on State and private lands and 
Fort Ord will designate protected habitats for these species, critical 
habitat designation would not appreciably benefit these species.
    All Federal and State agencies involved and local major land owners 
and planning agencies have been notified of the general location and 
importance of protecting these species' habitat. Protection of these 
species' habitat will be addressed through the recovery process and 
through the section 7 consultation process. Therefore, the Service 
finds that designation of critical habitat for these species is not 
prudent at this time.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing encourages and 
results in conservation actions by Federal, State, and private 
agencies, groups, and individuals. The Endangered Species Act provides 
for possible land acquisition and cooperation with the States and 
requires that recovery actions be carried out for all listed species. 
Such actions are initiated by the Service following a listing. 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) of the Act 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 insure 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.
    Two of the taxa, Piperia yadonii (Yadon's piperia) and the black 
legless lizard, occur within the boundaries of Fort Ord. Military 
training activities may affect these taxa and their habitat as could 
the Federal decision for the ultimate disposition of this property. The 
Department of Defense would be required to consult with the Service on 
actions that may affect these two species. Other Federal lands that 
support habitat for the black legless lizard include the Salinas 
National Wildlife Refuge and the Naval Post-graduate School in 
Monterey; however, there are no currently proposed activities on those 
lands that would affect the lizard. Urban development projects that are 
occurring on private lands may require permits from Federal agencies, 
such as section 404 permits from the Army Corps of Engineers.
    The Act and its implementing regulations found at 50 CFR 17.61, 
17.62, and 17.63 for endangered plants, 

[[Page 39336]]
and at 50 CFR 17.71 and 17.72 for threatened plants set forth a series 
of general prohibitions and exceptions that apply to all endangered or 
threatened plants. With respect to the four plant taxa proposed to be 
listed as endangered, all trade prohibitions of section 9(a)(2) of the 
Act, implemented by 50 CFR 17.61 and 17.71, would apply. These 
prohibitions, in part, make it illegal with respect to any endangered 
plant for any person subject to the jurisdiction of the United States 
to import or export; transport in interstate or foreign commerce in the 
course of a commercial activity; sell or offer for sale these species 
in interstate or foreign commerce; remove and reduce to possession the 
species from areas under Federal jurisdiction; maliciously damage or 
destroy any such species on any area under Federal jurisdiction; or 
remove, cut, dig up, damage, or destroy any such endangered plant 
species on any other area in knowing violation of any State law or 
regulation or in the course of any violation of a State criminal 
trespass law. Cupressus goveniana ssp. goveniana (Gowen cypress), 
proposed to be listed as threatened, would be subject to similar 
prohibitions (16 U.S.C. 1538(a)(2)(E); 50 CFR 17.61, 17.71).
    Seeds from cultivated specimens of threatened plant species are 
exempt from these prohibitions provided that a statement of 
``cultivated origin'' appears on their containers. Certain exceptions 
apply to agents of the Service and State conservation agencies. The Act 
and 50 CFR 17.62, 17.63, and 17.72 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered or threatened plant species under certain circumstances. 
Several central coast nurseries have cultivated Cupressus goveniana 
ssp. goveniana on occasion, but it apparently is not popular enough to 
be kept in stock on a regular basis. The Pebble Beach Company is 
actively cultivating this plant to be used in efforts to restore 
disturbed habitat (Fryberger, in litt., 1992).
    The Act and implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. With respect to the black legless lizard, these 
prohibitions, in part, would make it illegal for any person subject to 
the jurisdiction of the United States to take (including harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt 
any such conduct), import or export, transport in interstate or foreign 
commerce in the course of commercial activity, or sell or offer for 
sale in interstate or foreign commerce any listed wildlife species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken illegally. Certain exceptions 
apply to agents of the Service and State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such 
permits are available for scientific purposes, to enhance the 
propagation or survival of the species, and for incidental take in 
connection with otherwise lawful activities.
    Requests for copies of the regulations on listed plants and 
wildlife and inquiries regarding them may be addressed to the U.S. Fish 
and Wildlife Service, Permits Branch, 911 N.E. 11th Avenue, Portland, 
OR 97232-4181 (telephone [phone], facsimile 503/231-6243).

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 these species;
    (2) The location of any additional populations of these 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 these species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on these species.
    The final decision on this proposal 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 Endangered Species Act provides for a public hearing on this 
proposal, if requested. Requests must be received by September 25, 
1995. Such requests must be made in writing and addressed to the Field 
Supervisor of the Ventura Field Office (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).

References Cited

    A complete list of all references cited herein is available upon 
request from the Ventura Field Office (see ADDRESSES section).

Authors

    The primary authors of this notice are Constance Rutherford and 
James Rorabaugh, Ventura Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Proposed Regulations Promulgation

PART 17--[AMENDED]

    Accordingly, it is hereby proposed to amend part 17, subchapter B 
of chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:
    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. It is proposed to amend Sec. 17.11(h) by adding the following, 
in alphabetical order under REPTILES, to the List of Endangered and 
Threatened Wildlife:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                                                                                                                                                        

[[Page 39337]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                         Vertebrate                                                     
----------------------------------------------------------                               population                                                     
                                                                                            where                                 Critical     Special  
                                                                  Historic range         endangered   When listed     Status      habitat       rules   
         Common name                Scientific name                                          or                                                         
                                                                                         threatened                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
          Reptiles                                                                                                                                      
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Lizard, black legless.......  Anniella pulchra nigra.....  U.S.A. (CA)................  Entire        ...........            E           NA           NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Section 17.12(h) is amended by adding the following, in 
alphabetical order under FLOWERING PLANTS to the List of Endangered and 
Threatened Plants to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species                                                                                                                            
--------------------------------------------------      Historic range               Family             Status     When listed    Critical     Special  
     Scientific name            Common name                                                                                       habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
    Flowering Plants                                                                                                                                    
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Astragalus tener var.     Coastal dunes milk-      U.S.A. (CA)............  Fabaceae...............  E             ...........           NA           NA
 titi.                     vetch.                                                                                                                       
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Cupressus goveniana ssp.  Gowen cypress..........  U.S.A. (CA)............  Cupressaceae...........  T             ...........           NA           NA
 goveniana.                                                                                                                                             
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Piperia yadonii.........  Yadon's piperia........  U.S.A. (CA)............  Orchidaceae............  E             ...........           NA           NA
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Potentilla hickmanii....  Hickman's potentilla...  U.S.A. (CA)............  Rosaceae...............  E             ...........           NA           NA
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
Trifolium trichocalyx...  Monterey clover........  U.S.A. (CA)............  Fabaceae...............  E             ...........           NA           NA
                                                                                                                                                        
                *                   *                   *                   *                   *                   *                   *               
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: December 30, 1994.
Mollie H. Beattie,
Director, U.S. Fish and Wildlife Service.
    Editorial note: This document was received at the Office of the 
Federal Register on July 27, 1995.

[FR Doc. 95-18811 Filed 8-1-95; 8:45 am]
BILLING CODE 4310-55-P