Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Two Larkspurs From Coastal Northern California

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: January 26, 2000 (Volume 65, Number 17)]
[Rules and Regulations]
[Page 4156-4162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja00-15]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE23

Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for Two Larkspurs From Coastal Northern California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered status pursuant to the Endangered Species Act (Act) of 1973,
as amended for two plants--Delphinium bakeri (Baker's larkspur) and
Delphinium luteum (yellow larkspur). These species grow in a variety of
habitats including coastal prairie, coastal scrub, or chaparral in
Sonoma and Marin Counties in northern California. Habitat loss and
degradation, sheep grazing, road maintenance activities, and
overcollection imperil the continued existence of these plants. Random
events increase the risk of extinction to the extremely small plant
populations. This rule implements the Federal protection and recovery
provisions afforded by the Act for these two species.

EFFECTIVE DATE: February 25, 2000.

ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800
Cottage Way, Room W2606, Sacramento, California 95825.

FOR FURTHER INFORMATION CONTACT: Kirsten Tarp, Sacramento Fish and
Wildlife Office (see ADDRESSES section) (telephone 916/414-6464;
facsimile 916/414-6486).

SUPPLEMENTARY INFORMATION:

Background

Delphinium bakeri (Baker's larkspur) and D. luteum (yellow
larkspur) were found historically in coastal prairie, coastal scrub, or
chaparral habitats. Urban development, agricultural land conversion,
and livestock grazing have destroyed much of the habitat and extirpated
numerous populations of these two plants in coastal Marin and Sonoma
Counties in northern California. The historical range of Delphinium
bakeri and D. luteum did not extend beyond coastal Marin and Sonoma
Counties.
Ewan (1942) described Delphinium bakeri based on type material
collected by Milo Baker in 1939 from Coleman Valley, Sonoma County,
California. In the most recent treatment, Warnock (1993) retained the
taxon as a full species. Historically, D. bakeri was known from Coleman
Valley in Sonoma County and from a site near Tomales in Marin County.
Delphinium bakeri occurs on decomposed shale within the coastal scrub
plant community from 120 to 150 meters (m) (400 to 500 feet (ft)) in
elevation (California Natural Diversity Database (CNDDB) 1997).
Delphinium bakeri is a perennial herb in the buttercup family
(Ranunculaceae) that grows from a thickened, tuber-like, fleshy cluster
of roots. The stems are hollow, erect, and grow to 65 centimeters (cm)
(26 inches (in)) tall. The shallowly five-parted leaves occur primarily
along the upper third of the stem and are green at the time the plant
flowers. The flowers are irregularly shaped. The five sepals (outer
most whorl or set of floral parts) are conspicuous, bright dark blue or
purplish, with the rear sepal elongated into a spur. The inconspicuous
petals occur in two pairs. The lower pair is oblong and blue-purple;
the upper pair is oblique and white. Seeds are produced in several dry,
many-seeded fruits, which split open at maturity on only one side
(i.e., several follicles). Delphinium bakeri flowers from April through
May (Warnock 1993).
Habitat conversion, grazing, and/or roadside maintenance activities
have extirpated occurrences of Delphinium bakeri in Marin and Sonoma
Counties (California Department of Fish and Game (CDFG) 1994). The CDFG
(1994) also reported the species is declining. The only known remaining
population, with a total of about 35 plants, is found on a steep road
bank on private and county land in Marin County that is threatened by
road work, overcollection, and sheep grazing. Because of its extreme
range restriction and small population size, the plant is also
vulnerable to extinction from random natural events, such as fire or
insect outbreaks (CNDDB 1997).
Heller (1903) described Delphinium luteum based on type material
collected from ``grassy slopes about rocks, near Bodega Bay, along the
road leading to the village of Bodega'' in Sonoma County. Although
Jepson (1970) reduced D. luteum to a variety of D. nudicaule, it is
currently recognized as a full species (Warnock 1993). Delphinium
luteum occurs on rocky areas within coastal scrub plant community,
including areas with active rock slides, from sea level to 100 m (300
ft) in elevation (Guerrant 1976).
Delphinium luteum is a perennial herb in the buttercup family
(Ranunculaceae) that grows from fibrous roots to 56 cm (22 in) tall.
The leaves are mostly basal, fleshy, and green at the time of
flowering. The flowers are cornucopia-shaped. The five conspicuous
sepals are bright yellow, with the posterior sepal elongated into a
spur. The inconspicuous petals occur in two pairs. The upper petals are
narrow and unlobed; the lower petals are oblong to ovate. The fruit is
a follicle. Delphinium luteum flowers from March to May.
Never widely distributed, historical populations of Delphinium
luteum have been partially or entirely extirpated by rock quarrying
activities, overcollecting, residential development, and sheep grazing,
resulting in the species now being even more narrowly distributed
(Guerrant 1976; CNDDB 1998; Betty Guggolz, Milo Baker Chapter,
California Native Plant Society (CNPS), pers. comm. 1995). The CDFG
(1994) reported the species is declining. The two remaining populations
near Bodega, both on private land, total fewer than 50 plants.
Development, overcollection, and sheep grazing threaten the remaining
two populations. Because of its extreme range restriction and small
population size, the plant is also vulnerable to extinction from random
natural events, such as fire or insect outbreaks (CNDDB 1998; B.
Guggolz, pers. comm. 1995).

Previous Federal Action

Federal Government actions on the two species began as a result of
section 12 of the Act (16 U.S.C. 1531 et seq.), which directed the
Secretary of the Smithsonian Institution to prepare a report on those
plants considered to be endangered, threatened, or extinct in the
United States. This report, designated as House Document No. 94-51, was
presented to Congress on January 9, 1975, and included Delphinium
bakeri and D. luteum as endangered. We published a notice on July 1,
1975 (40 FR 27823) of our 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
our intention to review the status of the plant taxa named in the
report. The above two taxa were included in the

[[Page 4157]]

July 1, 1975, notice. On June 16, 1976, we 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 us in response to House Document No.
94-51 and the July 1, 1975, Federal Register publication. D. bakeri and
D. luteum were included in this Federal Register document.
General comments received in relation to the 1976 proposal were
summarized in an April 26, 1978, notice (43 FR 17909). The Act
Amendments of 1978 required that all proposals over two years old be
withdrawn. A one-year grace period was given to those proposals already
more than two years old. In the December 10, 1979, notice (44 FR
70796), we published a notice of withdrawal of the June 6, 1976,
proposal, along with four other proposals that had expired.
We published a Notice of Review for plants on December 15, 1980 (45
FR 82480). This notice included Delphinium bakeri and D. luteum as
category 1 candidates for Federal listing. Category 1 taxa were those
for which we had on file substantial information on biological
vulnerability and threats to support preparation of listing proposals.
On November 28, 1983, we published a supplement to the Notice of Review
(48 FR 53640). This supplement changed D. bakeri and D. luteum from
category 1 to category 2 candidates. Category 2 taxa were those for
which data in our possession indicated listing was possibly
appropriate, but for which substantial data on biological vulnerability
and threats were not currently known or on file to support proposed
rules.
The plant notice was revised on September 27, 1985 (50 FR 39526).
Delphinium bakeri and D. luteum were again included as category 2
candidates. Another revision of the plant notice was published on
February 21, 1990 (55 FR 6184). In this revision D. bakeri and D.
luteum were included as category 1 candidates. We made no changes to
the status of the two species in the plant notice published on
September 30, 1993 (58 FR 51144). On February 28, 1996, we published a
Notice of Review in the Federal Register (61 FR 7596) that discontinued
the use of candidate categories and considered the former category 1
candidates as simply ``candidates'' for listing purposes. Both species
were included as candidates in the February 28, 1996, Notice of Review.
Section 4(b)(3)(B) of the Act requires the Secretary to make
certain findings on 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 provision applied to Delphinium
bakeri and D. luteum, because the 1975 Smithsonian report had been
accepted as a petition. On October 13, 1982, we 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. The
finding was reviewed annually in October of 1983 through 1994, and we
published a proposed rule on June 19, 1997 (62 FR 33383).
The processing of this final rule conforms with our Listing
Priority Guidance published in the Federal Register on October 22, 1999
(64 FR 57114). The guidance clarifies the order in which we will
process rulemakings. Highest priority is processing emergency listing
rules for any species determined to face a significant and imminent
risk to its well-being (Priority 1). Second priority (Priority 2) is
processing final determinations on proposed additions to the lists of
endangered and threatened wildlife and plants. Third priority is
processing new proposals to add species to the lists. The processing of
administrative petition findings (petitions filed under section 4 of
the Act) is the fourth priority. The processing of critical habitat
determinations (prudency and determinability decisions) and proposed or
final designations of critical habitat will no longer be subject to
prioritization under the Listing Priority Guidance. This final rule is
a Priority 2 action and is being completed in accordance with the
current Listing Priority Guidance.
We have updated this rule to reflect any changes in distribution,
status, and threats since publishing the proposed rule and to
incorporate information obtained through the public comment period.
This additional information did not alter our decision to list these
species.

Summary of Comments and Recommendations

In the June 19, 1997, proposed rule (62 FR 33383) and associated
notifications, we requested all interested parties to submit factual
reports or information that might contribute to development of a final
rule. A 60-day comment period closed on August 18, 1997. We contacted
appropriate Federal and State agencies, county and city governments,
scientific organizations, and other interested parties and requested
comments. We sent copies of the proposed rule and the request for
comments letter to seven local libraries for public display. We
published newspaper notices in the Press Democrat and Marin Independent
Journal on June 25, 1997; Sonoma County Independent on June 26, 1997;
and Petaluma Argus Courier on June 27, 1997, which invited general
public comment.
During the public comment period, we received written comments from
five individuals or agencies. Three commenters expressed support for
the listing proposal, and two commenters opposed the proposal.
Supporting comments were received from the CNPS and two individuals
from Washington State University. The two commenters from Washington
State University sent a letter informing us of their research on the
genetic variation in Delphinium luteum. Opposing comments were received
by the Washington Legal Foundation and the Marin Farm Bureau. Opposing
comments and other comments questioning the proposed rule were
organized into specific issues. These issues and our response to each
are summarized below.
Issue 1: One commenter stated that the Service should not list
Delphinium bakeri and D. luteum because it has no authority to list or
regulate species under the Act that are not involved in interstate
commerce. This commenter further believed that Federal listing for D.
bakeri and D. luteum is unnecessary since it would not confer greater
protection than California State law already provides for these
indigenous plants.
Our Response: The Federal Government has the authority under the
Commerce Clause of the U.S. Constitution to protect these species, for
the reasons given in Judge Wald's opinion and Judge Henderson's
concurring opinion in National Association of Home Builders v. Babbitt,
130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 1185 S.Ct. 2340 (1998).
That case involved a challenge to application of the Act's prohibitions
to protect the listed Delhi Sands flower-loving fly (Rhapimodas
terminatus abdominalis). As with Delphinum bakeri and D. luteum, the
Delhi Sands flower-loving fly is endemic to only one State. Judge Wald
held that application of the Act's prohibition against taking of
endangered species to this fly was a proper exercise of Commerce Clause
power to regulate:

[[Page 4158]]

(1) use of channels of interstate commerce; and (2) activities
substantially affecting interstate commerce, because it prevented loss
of biodiversity and destructive interstate competition. Judge Henderson
upheld protection of the fly because doing so prevents harm to the
ecosystem upon which interstate commerce depends and because doing so
regulates commercial development that is part of interstate commerce.
Issue 2: One commenter urged us not to list Delphinium bakeri and
D. luteum, stating that ``the listing of the two larkspurs violates the
Principles of Federalism,'' and that ``California has ample resources
to regulate and protect these two larkspur species,'' and (therefore)
``should be able to make its own decisions regarding these plants found
within its own border.'' The commenter further stated that this listing
has significant impacts on the rights of private property owners to
make reasonable use of their property.
Our Response: As we stated in the proposed rule (62 FR 33383),
existing State and local regulations are inadequate to protect these
species. The Act does not prevent the State of California from
protecting and regulating the two larkspur species. Federal and State
regulations complement each other. As discussed further in Factor D of
the ``Summary of Factors Affecting the Species'' section of this final
rule, the California Environmental Quality Act (CEQA) and California
Endangered Species Act (CESA) apply to actions on private and State
lands. For plants, the Federal Endangered Species Act primarily covers
Federal land and Federal actions that may affect proposed and listed
species.
The listing of plants under the Federal Endangered Species Act does
not necessarily restrict any uses of private land unless Federal
funding, authorization, or a permit is involved. For example, such
private land uses as proper livestock grazing, clearing a defensible
space for fire protection around one's personal residence, landscaping
(including irrigation), or fence maintenance are not affected by
Federal listing of plants. If an activity is conducted, authorized, or
funded by a Federal agency, the Federal action agency must consult with
us when the activity may affect listed species.
Issue 3: One commenter was concerned that once an endangered
species is listed, the designation of critical habitat under the Act
would result in a taking of land. This commenter further stated that
the ``take'' provision as applied to the two larkspurs will have a
dramatic and disruptive impact on local land use and planning.
Our Response: As discussed in the ``Critical Habitat'' section of
this final rule, a critical habitat determination is not being made at
this time for these plants. The ``take'' prohibition, as defined in
section 9 of the Act, generally does not apply to plants (except when
such take is prohibited by state law or occurs in the course of a
violation of state criminal trespass law).
Issue 4: One commenter said that we should consider the adverse
economic effect that the listing would have on the local agriculture
industry.
Our Response: Under section 4(b)(1)(A) of the Act, a listing
determination must be based solely on the best scientific and
commercial data available. The legislative history of this provision
clearly states the intent of Congress to ``ensure'' that listing
decisions are ``based solely on biological criteria and to prevent non-
biological considerations from affecting such decisions,'' H.R. Rep.
No. 97-835, 97th Cong., 2nd Sess. 19 (1982). As further stated in the
legislative history, ``applying economic criteria * * * to any phase of
the species listing process is applying economics to the determinations
made under section 4 of the Act and is specifically rejected by the
inclusion of the word `solely' in the legislation,'' H.R. Rep. No. 97-
835, 97th Cong. 2nd Sess. 19 (1982). Because we are precluded from
considering economic impacts in a final decision to list a species, we
cannot examine such impacts.
Issue 5: One commenter stated that the plants are in existence
because of agriculture and not the opposite.
Our Response: As discussed under Factor A of the ``Summary of
Factors Affecting the Species'' section of this final rule, historical
habitat of Delphinium bakeri was eliminated by agricultural conversion.
The discussion under Factor C explains that both species are limited in
their range, have few individuals, and are extremely vulnerable to
trampling.

Peer Review

In accordance with interagency peer review policy published on July
1, 1994 (59 FR 34270), we solicited the expert opinions of three
independent specialists regarding pertinent scientific or commercial
data and assumptions relating to the taxonomy, population status, and
supportive biological and ecological information for the taxon under
consideration for listing. The purpose of such review is to ensure that
listing decisions are based on scientifically sound data, assumptions,
and analyses, including input of appropriate experts and specialists.
The three requested reviewers concurred with the accuracy of the rule
and supported listing these taxa. Information provided was incorporated
and is presented in the final rule.

Summary of Factors Affecting the Species

Section 4 of the Act and regulations (50 CFR part 424) that
implement the listing provisions of the Act established 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 Delphinium bakeri Ewan (Baker's larkspur) and Delphinium
luteum Heller (yellow larkspur) are as follows:
A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range. Of the two remaining populations
of Delphinium luteum, one located at an old rock quarry site near
Bodega has been partially destroyed and fragmented by historical quarry
activities. The number of plants remaining at this site continues to
decline. Population numbers were between 100 to 200 plants in 1978 (Ed
Guerrant, Berry Botanic Garden, pers. comm. 1995), but recent counts
indicate that only 30 to 40 individuals remain (B. Guggolz, pers. comm.
1995). The other extant site has fewer than 10 remaining individuals. A
historical site near the town of Graton was converted to residential
uses by 1987 (CNDDB 1997).
Historically, habitat of Delphinium bakeri was eliminated by
agricultural conversion to grainfields (Ewan 1942). Remaining habitat
may be threatened by sheep grazing (CNDDB 1997). One extirpated
population was subjected to sheep grazing, but it is unknown if grazing
was the primary cause of its demise. The few remaining individuals
(approximately 35) are extremely vulnerable to impacts that otherwise
might not be significant. Threats to the lone remaining site of D.
bakeri are discussed under factors B through E. At the rock quarry site
near Bodega Bay, the Bodega Harbor landowners association is proposing
to build an equipment storage shed and a public trail that would be
close to the remaining plants. Although the proposed storage equipment
shed would be located on degraded habitat and would have no direct
impact on the extant population of D. luteum, the public trail would be
located adjacent to

[[Page 4159]]

the population. The proximity of the trail to the plants would increase
the threat from collection (see factor B). Urban development, and its
associated recreational activities, continue to threaten the remaining
population of D. luteum (B. Guggolz, pers. comm. 1995). Although the
project proponents have been notified that construction of the shed and
trail may be detrimental to D. luteum, we understand that the project
remains proposed as is.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes. Overutilization is a threat for both species. In
1992, all the follicles (a single-celled cavity that acts like a many-
seeded fruit, which upon drying splits open to release seeds) were
collected from the plants at the only known site of Delphinium bakeri
(CDFG 1993). Because these follicles contained the plants' seeds, all
sexual reproduction for 1992 was lost. Were this collection to occur
regularly or in conjunction with unrelated natural events (e.g., fire),
the species may be lost. Due to its distinctive yellow flowers, which
is uncommon for larkspurs, D. luteum is of considerable horticultural
interest. Collecting is thought to have extirpated at least one
occurrence of D. luteum located southwest of Tomales (CNDDB 1997).
Additionally, some of the historical decline to D. luteum can be
attributed to collecting. Delphinium luteum was offered for purchase in
horticultural trade journals during the 1940's and 1950's (Michael
Warnock, Sam Houston University, pers. comm. 1994). Plants can still be
procured from a local nursery, although their seed source is not from
the wild. Garden-grown seed is also available through an international
garden society (NARGS 1998). Both populations of D. luteum are near
residential areas, about 30 m (100 ft) from the nearest house, and are
subject to collecting. Unrestricted collecting for scientific or
horticultural purposes or excessive visits by individuals interested in
seeing rare plants could result from increased publicity as a result of
this rulemaking.
C. Disease or Predation. Most Delphinium species are toxic to
cattle but not sheep. Ewan (1942) noted that Delphinium bakeri did not
appear to be poisonous to livestock. However, its toxicity has not been
tested. Sheep grazing may threaten the plant (CNDDB 1997). One
extirpated population was subjected to grazing, but it is unknown if
grazing was the primary cause of its demise. The few remaining
individuals (approximately 35) are extremely vulnerable to impacts that
otherwise might not be significant. Although D. luteum has persisted at
two sites with sheep grazing for many decades, because of the very low
number of individuals in the population, any loss of flowers and/or
seeds could significantly reduce chances for the long-term survival of
this species (see Factor E).
D. The Inadequacy of Existing Regulatory Mechanisms. The California
Fish and Game Commission (CFGC) listed Delphinium bakeri and Delphinium
luteum as rare species in 1979 under the California Native Plant
Protection Act (CNPPA) (Div. 2 Ch. 10, Section 1900 et seq. of the Fish
and Game Code). Although the ``take'' of State-listed plants is
generally prohibited under CNPPA (See Sec. 1908), the extent of
protection for State-listed plants has been a matter of some
uncertainty. CNPPA limits the State's ability to regulate or prohibit
the take of plants during agricultural operations, timber harvesting,
or mining assessment work, or removal of plants from certain facilities
and right-of-way [see Sec. 1913 (a) and (b)]. Under another provision
of CNPPA, landowners in some circumstances can remove plants after
providing CDFG at least 10 days advance notice [see Sec. 1913(c)]. The
scope of these exceptions to CNPPA take prohibition, and consequently
to the protection for plants, are unsettled and suspect. State
designation as a rare, threatened, or endangered species under the
CNPPA does provide for consideration of impacts by State agencies under
CEQA, described below.
The CEQA (chapter 2 section 21050 et seq. of the California Public
Resources Code) requires a full disclosure of the potential
environmental impacts of proposed projects. The public agency with
primary authority or jurisdiction over the project is designated as the
lead agency and is responsible for conducting a review of the project
and consulting with the other agencies concerned with the resources
affected by the project. Section 15065 of the CEQA Guidelines requires
a mandatory finding of significance if a project has the potential to
``reduce the number or restrict the range of a rare, threatened, or
endangered plant or animal.'' Species that can be shown to meet the
criteria for State listing and have been designated as rare,
threatened, or endangered, such as D. bakeri and D. luteum, must be
considered under CEQA guidelines (CEQA Section 15380). Once significant
effects are identified, the lead agency has the option to require
mitigation for effects through changes in the project or to decide that
overriding considerations make mitigation infeasible. In a case that
the lead agency decides that overriding considerations make mitigation
infeasible, projects may be approved that cause significant
environmental damage, such as destruction of State-listed species.
Protection of listed species through CEQA is therefore dependent upon
the discretion of the agency involved. In addition, revisions to CEQA
guidelines have been proposed which, if implemented, may weaken
protections for State-listed, rare, threatened, and endangered species.
E. Other Natural or Manmade Factors Affecting Its Continued
Existence. The remaining population of Delphinium luteum at the rock
quarry may be threatened by users of a trail associated with the
extension of an existing golf course into the current county scenic
easement that exists on the site (B. Guggolz, pers. comm. 1995). This
easement is not a conservation easement with us but may offer some
limited, incidental protection to the species in terms of controlling
development to protect the viewshed. However, the trail's close
proximity to the remaining populations of D. luteum may increase the
amount of collection of the species by people using the trail.
The remaining population of Delphinium bakeri occurs on a steep
road bank that is adjacent to a county road in Marin County. Some
potential exists for herbicide spraying and road maintenance activities
that could be detrimental to this species due to the extremely low
number of individuals that remain. The degree of threat that these
activities pose to the remaining population of D. bakeri is uncertain
at this time.
Because few populations and/or individuals remain, both Delphinium
bakeri and D. luteum are likely threatened by genetic drift (random
change in particular gene frequency that may lead to preservation or
extinction of certain genes and an overall reduction of genetic
variability). D. bakeri has 1 population consisting of 35 plants.
Delphinium luteum has 2 populations, totaling fewer than 50 plants.
Small populations often are subject to increased genetic drift and
inbreeding as consequences of their small populations (Ellstrand and
Elam 1993). A loss of genetic variability, and consequent reduction in
genetic fitness, provides less opportunity for a species to
successfully adapt to environmental change (Ellstrand and Elam 1993).
The combination of few populations, small number of individuals
found within each population, narrow range, and restricted habitat make
these two plant species susceptible to destruction

[[Page 4160]]

of all or a significant part of any population from random natural
events, such as fire, drought, disease, or other natural occurrences
(Shaffer 1981; Primack 1993). Random events causing population
fluctuations or even population extirpations are not usually a concern
until the number of individuals or geographic distribution become as
limited as they have for both Delphinium bakeri and D. luteum (Primack
1993). Once a plant population becomes significantly reduced due to
habitat destruction and fragmentation, the remnant population has a
greater probability of extinction from random events.
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by these species in determining this final rule. Habitat loss and
degradation, sheep grazing, inadequate regulatory mechanisms, naturally
occurring events, small plant populations, road maintenance activities,
and overcollection imperil the continued existence of these plants.
Delphinium bakeri has 1 population with a total of 35 plants.
Delphinium luteum has 2 small populations with a total of fewer than 50
plants. Both plant species are in danger of extinction throughout all
of their range, and the preferred action is therefore to list D. bakeri
and D. luteum as endangered. Other alternatives to this action were
considered but not preferred because not listing or listing as
threatened would not be consistent with the Act.

Critical Habitat

Critical habitat is defined in section 3, paragraph (5)(A) of the
Act as 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 essential to the
conservation of the species and which may require special management
considerations or protection; and specific areas outside the
geographical area occupied by the species at the time it is listed in
accordance with the provisions of section 4 of the Act, upon a
determination by the Secretary that such areas are essential for the
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.
In the proposed rule, we indicated that designation of critical
habitat was not prudent for Delphinium bakeri and D. luteum because of
a concern that publication of precise maps and descriptions of critical
habitat in the Federal Register could increase the vulnerability of
this species to incidents of collection and vandalism. We also
indicated that designation of critical habitat was not prudent because
we believed it would not provide any additional benefit beyond that
provided through listing as endangered.
In the last few years, a series of court decisions have overturned
Service determinations regarding a variety of species that designation
of critical habitat would not be prudent (e.g., Natural Resources
Defense Council v. U.S. Department of the Interior 113 F. 3d 1121 (9th
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d
1280 (D. Hawaii 1998)). Based on the standards applied in those
judicial opinions, we have reexamined the question of whether critical
habitat for Delphinium bakeri and D. luteum would be prudent.
Due to the small number of populations both Delphinium bakeri and
D. luteum are vulnerable to unrestricted collection, vandalism, or
other disturbance. We remain concerned that these threats might be
exacerbated by the publication of critical habitat maps and further
dissemination of locational information. However, we have examined the
evidence available for Delphinium bakeri and D. luteum and have not
found specific evidence of taking, vandalism, collection, or trade of
either species or any similarly situated species. Consequently,
consistent with applicable regulations (50 CFR 424.12(a)(1)(i)) and
recent case law, we do not expect that the identification of critical
habitat will increase the degree of threat to this species of taking or
other human activity.
In the absence of a finding that critical habitat would increase
threats to a species, if there are any benefits to critical habitat
designation, then a prudent finding is warranted. In the case of this
species, there may be some benefits to designation of critical habitat.
The primary regulatory effect of critical habitat is the section 7
requirement that Federal agencies refrain from taking any action that
destroys or adversely modifies critical habitat. While a critical
habitat designation for habitat currently occupied by this species
would not be likely to change the section 7 consultation outcome
because an action that destroys or adversely modifies such critical
habitat would also be likely to result in jeopardy to the species,
there may be instances where section 7 consultation would be triggered
only if critical habitat is designated. Examples could include
unoccupied habitat or occupied habitat that may become unoccupied in
the future. There may also be some educational or informational
benefits to designating critical habitat. Therefore, we find that
critical habitat is prudent for both Delphinium bakeri and D. luteum.
The Final Listing Priority Guidance for FY 2000 (64 FR 57114)
states, ``The processing of critical habitat determinations (prudency
and determinability decisions) and proposed or final designations of
critical habitat will no longer be subject to prioritization under the
Listing Priority Guidance. Critical habitat determinations, which were
previously included in final listing rules published in the Federal
Register, may now be processed separately, in which case stand-alone
critical habitat determinations will be published as notices in the
Federal Register. We will undertake critical habitat determinations and
designations during FY 2000 as allowed by our funding allocation for
that year.'' As explained in detail in the Listing Priority Guidance,
our listing budget is currently insufficient to allow us to immediately
complete all of the listing actions required by the Act. Deferral of
the critical habitat designation for Delphinium bakeri and D. luteum
has allowed us to concentrate our limited resources on higher priority
critical habitat (including court ordered designations) and other
listing actions, while allowing us to put in place protections needed
for the conservation of Delphinium bakeri and D. luteum without further
delay. However, because we have successfully reduced, although not
eliminated, the backlog of other listing actions, we anticipate in FY
2000 and beyond giving higher priority to critical habitat designation,
including designations deferred pursuant to the Listing Priority
Guidance, such as the designation for this species, than we have in
recent fiscal years.
We plan to employ a priority system for deciding which outstanding
critical habitat designations should be addressed first. We will focus
our efforts on those designations that will provide the most
conservation benefit, taking into consideration the efficacy of
critical habitat designation in addressing the threats to the species,
and the magnitude and immediacy of those threats. We will develop a
proposal to designate critical habitat for both Delphinium bakeri and
D. luteum as soon as feasible, considering our workload priorities.
Unfortunately, for the immediate future, most of Region 1's listing
budget must be directed to complying with numerous court orders

[[Page 4161]]

and settlement agreements, as well as due and overdue final listing
determinations (like the one at issue in this case).

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 results in
public awareness and conservation actions by Federal, State, and local
agencies, private organizations, and individuals. The Act provides for
possible land acquisition and cooperation with the State 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 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 with us
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 us. None of the populations of either species
occur on Federal land. Although one of the populations occurs adjacent
to a county road, we believe it is unlikely that any activities would
occur that involve the use of Federal Highway funds. We anticipate few
if any section 7 consultations for either species.
Listing these two plants would provide for development of a
recovery plan (or plans) for them. Such plan(s) would bring together
both State and Federal efforts for conservation of the plants. The
plan(s) would establish a framework for agencies to coordinate
activities and cooperate with each other in conservation efforts. The
plan(s) would set recovery priorities and estimate costs of various
tasks necessary to accomplish them. The plan(s) also would describe
site-specific management actions necessary to achieve conservation and
survival of the two plants. Additionally, pursuant to section 6 of the
Act, we would be able to grant funds to the State of California for
management actions promoting the protection and recovery of these
species.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
plants. All prohibitions of section 9(a)(2) of the Act, implemented by
50 CFR 17.61 for endangered plants, apply. These prohibitions, in part,
make it illegal 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
in interstate or foreign commerce, or remove and reduce to possession
from areas under Federal jurisdiction any such plant. In addition, the
Act prohibits malicious damage or destruction on areas under Federal
jurisdiction, and the removal, cutting, digging up, or damaging or
destroying of such plants in knowing violation of any State law or
regulation, or in the course of a violation of State criminal trespass
law. Certain exceptions to the prohibitions apply to our agents and
State conservation agencies.
The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of
permits to carry out otherwise prohibited activities involving
endangered plant species. Such permits are available for scientific
purposes and to enhance the propagation or survival of the species. We
anticipate that few trade permits would ever be sought or issued for
the two species because they are not common in cultivation or in the
wild.
As published in the Federal Register on July 1, 1994 (59 FR 34272),
our policy to identify to the maximum extent practicable at the time a
species is listed those activities that would or would not constitute a
violation of section 9 of the Act. The intent of this policy is to
increase public awareness of the effect of the listing on proposed and
ongoing activities within a species' range.
We believe that, based upon the best available information, the
following actions will not likely result in a violation of section 9,
provided these activities are carried out in accordance with existing
regulations and permit requirements:
(1) Activities authorized, funded, or carried out by Federal
agencies (e.g., livestock grazing, agricultural conversions, wetland
and riparian habitat modification, flood and erosion control,
residential development, recreational trail development, road
construction, hazardous material containment and cleanup activities,
prescribed burns, pesticide/herbicide application, pipelines or utility
lines crossing suitable habitat) when such activity is conducted in
accordance with consultation conducted under section 7 of the Act;
(2) Residential landscape maintenance (including irrigation) and
the clearing of vegetation around one's personal residence as a
firebreak.
We believe that the following actions could result in a violation
of section 9; however, possible violations are not limited to these
actions alone:
(1) Unauthorized collecting of the species on Federal lands; and
(2) Interstate or foreign commerce and import/export without
previously obtaining an appropriate permit. Permits to conduct
activities are available for purposes of scientific research and
enhancement of propagation or survival of the species.
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Sacramento Fish and Wildlife Office (see ADDRESSES section).
Requests for copies of the regulations regarding listed species and
inquiries regarding prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Endangered Species Permits, 911 N.E.
11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-2063,
facsimile 503/231-6243).

National Environmental Policy Act

We have 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 Act, as amended. We published a notice outlining
our reasons for this determination in the Federal Register on October
25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any collections of information that
require Office of Management and Budget (OMB) approval under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An information
collection related to the rule pertaining to permits for endangered and
threatened species has OMB approval and is assigned clearance number
1018-0094. This rule does not alter that information collection

[[Page 4162]]

requirement. For additional information concerning permits and
associated requirements for endangered plants, see 50 CFR 17.62 and
17.63.

References Cited

A complete list of all references in this document is available
upon request from the Field Supervisor, Sacramento Fish and Wildlife
Office (see ADDRESSES section).
Author: The primary author of this final rule is Kirsten Tarp, U.S.
Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see
ADDRESSES section); telephone 916/414-6464.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

For the reasons given in the preamble, we 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 Sec. 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 Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants

* * * * * * *
Delphinium bakeri................ Baker's larkspur.... U.S.A. (CA)........ Ranunculaceae...... E 681 NA NA

* * * * * * *
Delphinium luteum................ Yellow larkspur..... U.S.A. (CA)........ Ranunculaceae...... E 681 NA NA

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: December 15, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 00-1827 Filed 1-25-00; 8:45 am]
BILLING CODE 4310-55-P

Notices For
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Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Two Larkspurs From Coastal Northern California

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