Endangered and Threatened Wildlife and Plants; Five Plants From the San Bernardino Mountains in Southern California Determined to be Threatened or Endangered

DEPARTMENT OF THE INTERIOR

50 CFR Part 17

RIN 1018-AB73

Endangered and Threatened Wildlife and Plants; Five Plants From

the San Bernardino Mountains in Southern California Determined to be

Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines

Erigeron parishii (Parish's daisy) to be threatened and Eriogonum

ovalifolium var. vineum (Cushenbury buckwheat), Astragalus albens

(Cushenbury milk-vetch), Lesquerella kingii ssp. bernardina (San

Bernardino Mountains bladderpod), and Oxytheca parishii var.

goodmaniana (Cushenbury oxytheca) to be endangered pursuant to the

Endangered Species Act of 1973, as amended (Act). These five plant

species are endemic to the carbonate deposits (limestone and dolomite)

of the San Bernardino Mountains, San Bernardino County, California.

Most of the carbonate deposits in this mountain range are within

actively used mining claims or mining claims that are being maintained

for their mineral resources. Limestone, ranging from cement grade to

pharmaceutical grade, is currently mined in the area; dolomite is not

currently mined. The open or terraced mining techniques that are used,

as well as associated overburden dumping and road construction, result

in destruction of the plants' habitat. Other threats to the plants

include off-highway vehicle use, urban development near the community

of Big Bear, expansion of a ski area, and energy development projects.

Several of the plants are also threatened with stochastic extinction

due to the small numbers of populations or total number of individuals.

This rule implements the Federal protection and recovery provisions

afforded by the Act for these five plants.

EFFECTIVE DATE: September 23, 1994.

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, Ventura Field Office, 2140 Eastman Avenue,

Suite 100, Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Carl Benz at the above address or at

(805) 644-1766.

SUPPLEMENTARY INFORMATION:

Background

The San Bernardino Mountains in southern California have been

recognized for supporting a wide diversity of natural habitats that

have resulted from their geographic position between desert and coastal

environments, elevational zonation, and uncommon substrates such as

limestone outcrops. The San Bernardino National Forest (Forest), which

encompasses most of the San Bernardino Mountains, constitutes less than

1 percent of the land area of the State, yet contains populations of

over 25 percent of all plant species that occur naturally in

California.

Outcrops of carbonate substrates, primarily limestone and dolomite,

occur in several bands running on an east-west axis along the desert-

facing slopes of the San Bernardino Mountains, with disjunct patches

occurring just to the south of Sugarlump Ridge and to the east as far

as the Sawtooth Hills. These outcrops are a remnant of an ancient

formation of sandstone, shale, and limestone, through which the

granitic core of the Transverse Ranges has emerged (Fife 1988).

The five taxa under discussion, Erigeron parishii (Parish's daisy),

Eriogonum ovalifolium var. vineum (Cushenbury buckwheat), Astragalus

albens (Cushenbury milk-vetch), Lesquerella kingii ssp. bernardina (San

Bernardino Mountains bladderpod), and Oxytheca parishii var.

goodmaniana (Cushenbury oxytheca), are restricted primarily to

carbonate deposits or soils derived from them. These taxa, and other

plants that occur on carbonate deposits, have commonly been referred to

as ``limestone endemics'' by botanists, whether they occur on limestone

or dolomite (Krantz 1990, Schoenherr 1992). Collectively, these five

taxa span a range approximately 56 kilometers (km) (35 miles) long,

ranging in elevation from 1,220 meters (4,000 feet (ft)) at the base of

the mountains to approximately 2,440 meters (8,000 ft), and occur as

components in the understory of a variety of plant communities,

including Jeffrey pine-western juniper woodland, pinyon-juniper

woodland, pinyon woodland, Joshua tree woodland, blackbrush scrub, and

desert wash.

Pinyon-juniper woodland communities dominate the desert-facing

slopes above 1,220 meters (4,000 ft) in elevation, and grade into a

Joshua tree woodland at lower elevations (Vasek and Thorne 1988).

Pinyon-juniper woodlands extend up to almost 2,100 meters (7,000 ft) in

elevation, where they intergrade with a Jeffrey pine woodland on drier

sites or mixed conifer forest on wetter sites. Open forests of

lodgepole pine and limber pine are found at the highest elevations. A

wide variation in the species composition exists within the pinyon-

juniper woodland. Pinus monophylla (pinyon pine) or Juniperus

osteosperma (Utah juniper), and more rarely Juniperus occidentalis

(western juniper) or Juniperus californica (California juniper), are

the structurally dominant species, occasionally occurring together.

Holland (1986) has referred to separate Mojavean pinyon woodland and

Mojavean juniper woodland and scrub communities. The understory varies

with slope and elevation, but typically includes species such as

Cercocarpus ledifolius (mountain mahogany), Ephedra viridis (Mormon

tea), Yucca schidigera (Mohave yucca), Yucca brevifolia (Joshua tree),

and Encelia virginensis (encelia). Patches of local dominance by

Coleogyne ramosissima (blackbrush) on lower elevation desert facing

slopes, or Arctostaphylos sp. (manzanita) on more interior canyons, are

common.

Erigeron parishii is a small perennial herb of the aster family

(Asteraceae) that reaches 1 to 3 decimeters (dm) (4 to 12 inches (in))

in height. The linear leaves are covered with soft, silvery hairs. Up

to 10 solitary flower heads are borne on cauline stalks; ray flowers

are deep rose to lavender, and heads have greyish green and glandular

phyllaries. E. parishii was first described by Asa Gray in 1884 based

on specimens collected by Samuel B. Parish in Cushenbury Canyon in

1881. E. parishii has sometimes been confused with E. utahensis, a

plant found on carbonate substrates in the mountains of the Mojave

Desert and in Utah, Colorado, and Arizona, but differs from the latter

in the structure of the pappus and its silvery-white rather than grey-

green stem.

Erigeron parishii is the most widely ranging of the five taxa

discussed herein, with a range 56 km (35 miles) long. The plant is

known from fewer than 25 occurrences, with the total population

numbering approximately 16,000 individuals. Fewer than a third of the

occurrences comprise more than 1,000 individuals each (Barrows 1988a).

From White Knob at the western terminus, populations occur primarily

along the belt of carbonaceous substrates, southeast to Pioneertown.

The plant is typically found associated with pinyon woodlands, pinyon-

juniper woodlands, and blackbrush scrub from 1,220 to 1,950 meters

(4,000 to 6,400 ft) in elevation. It is usually found on dry rocky

slopes, shallow drainages, and outwash plains on substrates derived

from limestone or dolomite. Some populations occur on a granite/

limestone interface, usually a granitic parent material overlain with

an outwash of limestone materials. Two small outlying populations at

the eastern edge of its range near Pioneertown occur on quartz

monzonite substrates. Historic occurrences were recorded from

Rattlesnake Canyon south of Old Woman Springs and from the Little San

Bernardino Mountains; these locations have not been surveyed in over 50

years and merit additional field surveys (Andy Sanders, University of

California, Riverside, pers. comm., 1992).

Eriogonum ovalifolium var. vineum is a low, densely-matted

perennial of the buckwheat family (Polygonaceae). The flowers are

whitish-cream, darken to a reddish or purple color with age, and are

borne on flowering stalks reaching 1 dm (4 in) in height. The plant

flowers from May through June. The round to ovate leaves are white-

woolly on both surfaces and are 0.7 to 1.5 centimeters (cm) (0.3 to 0.6

in) long. The diameter of mats is typically 1.5 to 2.5 dm (6 to 10 in),

but may reach up to 5 dm (20 in) in particularly well-developed

individuals.

Eriogonum ovalifolium var. vineum was first collected by S.B.

Parish near Rose Mine, San Bernardino Mountains, in 1894, and was

described as E. vineum by John K. Small in 1898. In 1911, Aven Nelson

published the combination E. ovalifolium var. vineum. Jepson in his

manual used the combination of E. ovalifolium var. vineum in 1943. Munz

(1959) accepted the work of Stokes (1936), and recognized it as E.

ovalifolium ssp. vineum, in his flora of California. In 1968, Reveal

clarified the relationship of the plant to E. ovalifolium var. nivale,

with which it had been confused, and used the name E. ovalifolium var.

vineum (Reveal and Munz 1968). Three other varieties of E. ovalifolium

are distinguished on the basis of floral and leaf characteristics, but

none of them occur in the San Bernardino Mountains.

Eriogonum ovalifolium var. vineum is limited in distribution to the

belt of carbonate substrates of the north slopes of the San Bernardino

Mountains. The plant is currently known from approximately 20

occurrences over a distance of about 40 km (25 miles). Only a quarter

of those occurrences comprise more than 1,000 individuals each (Barrows

1988b), with the total population numbering approximately 13,000

individuals. E. ovalifolium var. vineum occurs from the White Knob area

east to Rattlesnake Canyon. Surveys by Barrows (1988b) resulted in a

slight range extension of the plant in the Rattlesnake Canyon drainage.

Since publication of the proposal, additional surveys by the Forest

staff located two previously unknown populations, one near Jacoby

Springs and one just north of Mineral Mountain (CNDDB 1992). Tierra

Madre Consultants (TMC) located a previously unknown population west of

White Knob (TMC 1992), which extends the known range of the plant west

by 1.6 km (1 mile). A dozen other extensions of existing occurrences

were reported by the Forest Service and TMC; all of these were within

the known range of the plant (CNDDB 1992, TMC 1992).

Eriogonum ovalifolium var. vineum occurs within openings of pinyon

woodland, pinyon-juniper woodland, Joshua tree woodland, and blackbrush

scrub communities between 1,400 and 2,400 meters (4,600 and 7,900 ft)

in elevation. Other habitat characteristics include open areas with

little accumulation of organic material, a canopy cover generally less

than 15 percent, and powdery fine soils with rock cover exceeding 50

percent. The plant typically occurs on moderate slopes, although a few

occurrences are on slopes over 60 percent. On milder, north-facing

slopes, it co-occurs with Astragalus albens.

Recent fieldwork by Howard Brown (Pluess-Staufer Inc., in litt.,

1992) has refined the information on the carbonate geology of the San

Bernardino Mountains. Eriogonum ovalifolium var. vineum clearly occurs

on limestone substrate in the White Knob area, and from Arctic/Bousic

Canyon west to Terrace Springs, south to Top Spring, and along the

north side of Lone Valley to Tip Top Mountain. However, E. ovalifolium

var. vineum occurs on dolomite in the Bertha Ridge area, north Holcomb

Valley, Jacoby Canyon, and along Nelson Ridge, according to Brown (in

litt., 1992). Additionally, a population just to the south of Mineral

Mountain is clearly on non-carbonate substrates; a population in

Furnace Canyon seems to be on a mixed lithology of granite, limestone,

and dolomite; and a population on Heartbreak Ridge is on carbonate

substrate.

Astragalus albens is a small silvery-white perennial herb in the

pea family (Fabaceae). The slender stems are decumbent, grow to 30 cm

(12 in) in length, and support leaves comprised of 5 to 9 small

leaflets. The purple flowers, which bloom from March to May, occur

toward the ends of the branches in 5-to 14-flowered racemes and develop

8- to 11-seeded pods. In 1885, A. albens was described by Edward L.

Greene based on a collection made by Parish and Parish 3 years earlier

(Greene 1885). In 1927, Per Axel Rydberg published the name Hamosa

albens (Rydberg 1927). In 1964, R.C. Barneby synonymized the genus

Hamosa and included the species in Astragalus (Barneby 1964). A.

leucolobus, a common associate on carbonate soils, is distinguished

from A. albens by its cobwebby pubescence on the leaflets, which are

strongly folded along the midrib, and differently shaped pods.

Astragalus albens is currently known from fewer than 20 occurrences

scattered throughout the eastern half of the carbonate belt, running

from Furnace Canyon southeast to the head of Lone Valley, a range of 24

km (15 miles). The proposal stated that the total number of individuals

was estimated at 2,000, but that this number is likely to be greater in

years of substantial rainfall. Several known populations comprised a

larger number of individuals during the 1992 field season than had

previously been reported. That may, in part, be due to favorable

rainfall during March 1992, which resulted in a large establishment of

seedlings, and in part to a more thorough survey effort. Of

significance is the extension of a population in the Top Spring-Smarts

Ranch Road area; several thousand individuals were found in this area,

making it the primary population center for the species. Population

estimates for 1992 place the total number of individuals between 5,000

and 10,000.

The plant is typically found on carbonate substrates along rocky

washes and gentle slopes within pinyon woodland, pinyon-juniper

woodland, Joshua tree woodland, and blackbrush scrub communities.

Erigeron parishii and Eriogonum ovalifolium var. vineum co-occur with

Astragalus albens at several locations. Most occurrences are found

between 1,500 and 2,000 meters (5,000 and 6,600 ft) in elevation on

soils derived directly from decomposing limestone bedrock. Three

occurrences are found below 1,500 meters (5,000 ft) in elevation in

rocky washes that have received limestone outwash from erosion higher

in the drainages. According to Brown (in litt., 1992), two populations

occur on granite substrates (Gordon Quarry and Granite Peaks), and one

occurs on granite and quartzite (Cactus Flat). Other habitat

characteristics include an open canopy cover with little accumulation

of organic material, rock cover exceeding 75 percent, and gentle to

moderate slopes (5 to 30 percent).

Lesquerella kingii ssp. bernardina is a silvery, short-lived

perennial member of the mustard family (Brassicaceae) reaching 1 to 2

dm (4 to 8 in) in height. The plant has yellow flowers located toward

the ends of the stems. The basal leaves are ovate and have long

petioles. The type material was collected by Frank W. Peirson at the

east end of Bear Valley in 1924. In 1932, Munz described this plant as

L. bernardina. In 1958, Munz combined L. bernardina with L. kingii, and

made the combination of L. kingii ssp. bernardina (Wilson and Bennett

1980). L. kingii ssp. kingii is found in the mountains of the eastern

Mojave Desert and the Inyo-White ranges extending into Nevada. It is

distinguished from L. kingii ssp. bernardina by its smaller petals and

styles.

Lesquerella kingii ssp. bernardina is currently known from two

areas, on either side of Bear Valley. One cluster of occurrences is on

the north side of the valley, near the east end of Bertha Ridge,

adjacent to the community of Big Bear, and is subject to impacts from

urbanization. The other cluster is centered on the north-facing slope

of Sugarlump Ridge to the south of the valley, approximately 10 km (6

miles) south of the Bertha Ridge occurrences. These latter occurrences

were discovered during spring 1990 on an existing downhill ski run, and

on and adjacent to proposed ski runs and lift lines within an existing

ski area (California Natural Diversity Data Base (CNDDB) 1990). The

estimate of total number of individuals in the Bertha Ridge occurrences

was 25,000 in 1980 and less than 10,000 in 1988; it is unclear whether

this was due to differences in sampling techniques or drought

conditions (Wilson and Bennett 1980, CNDDB 1990). In 1991, the

Sugarlump Ridge populations totalled approximately 10,000 individuals

(CNDDB 1991).

The habitat for Lesquerella kingii ssp. bernardina is characterized

by carbonate substrates, either brown sandy soils with white carbonate

rocks or outcrops of large carbonate rock. According to geologic

information supplied by Brown (in litt., 1992), all populations of L.

kingii ssp. bernardina both in the Bertha Ridge and the Sugarlump Ridge

areas occur on dolomite. Slopes are typically gentle to moderate and

are both north- and south-facing between 2,100 and 2,700 meters (6,800

and 8,800 ft) in elevation. Within Jeffrey pine-western juniper

woodlands, as well as white fir forest in some locations, the

subspecies is found in open areas with little accumulation of organic

material. The plant seems to be tolerant of slight disturbance;

scattered plants were found growing on old roads, undeveloped lots, and

undeveloped yards within the Whispering Forest housing tract (Myers and

Barrows 1988). However, the plant is conspicuously absent from heavily

graded and mulched ski runs in the Bear Mountain ski area.

The carbonate substrates that support Lesquerella kingii ssp.

bernardina lie south and west of those that support most of the

populations of the other four taxa under discussion. However, near the

east end of Bertha Ridge, the southernmost population of Eriogonum

ovalifolium var. vineum occurs in close proximity to one colony of

Lesquerella kingii ssp. bernardina.

Oxytheca parishii var. goodmaniana is a small wiry annual of the

buckwheat family (Polygonaceae). The type material was collected by

Parish and Parish in 1882 near Cushenbury Spring. For a number of

years, historical collections were mistakenly identified as O. parishii

var. abramsii or O. watsonii. Barbara Ertter (1980) described the

variety in honor of George J. Goodman, who was the first to recognize

both the distinctiveness of the variety and its close relationship to

O. parishii. O. parishii var. goodmaniana stands 0.5 to 3 dm (2 to 12

in) tall with a basal rosette of leaves 1 to 3 cm (0.4 to 1.2 in) long

and stems with bracts at the nodes. The flowers consist of 6 small

white to rose or greenish-yellow petals; clusters of 3 to 12 flowers

are subtended by a distinct involucral bract. O. parishii var.

goodmaniana is separated from the other three varieties of O. parishii

by the presence of only four to five awns on the bracts, rather than

seven or more.

Oxytheca parishii var. goodmaniana is the most restricted of the

carbonate endemic species of the San Bernardino Mountains. Forest

Service surveys in 1992 located three additional populations, bringing

the total number of known occurrences to seven (CNDDB 1992). One

location near Cushenbury Spring is located near an active limestone

mine; two more occurrences are located near the abandoned Green Lead

gold mine, one of which is bisected by a road; the fourth occurrence is

located near the north side of Holcomb Valley. The three newly

discovered populations are located along the Helendale Fault in the

vicinity of Tip Top Mountain, Mineral Mountain, and Rose Mine. This

represents a significant extension of approximately 19 km (12 miles) to

the southeast from the previously known range of the plant. Given the

availability of potentially suitable habitat between the newly

discovered and the previously known populations, other sites supporting

this taxon may be found with additional surveys.

With the exception of the north Holcomb Valley population, which

occurs on dolomite, all populations of Oxytheca parishii var.

goodmaniana occur on limestone or a mixed lithology of limestone and

dolomite (TMC 1992). In 1990, the total known population consisted of

fewer than 3,000 individuals. With discovery of the new populations,

however, current estimates have been doubled. Since it is an annual

species, the number of individuals might be higher in years with winter

and spring rainfall and temperatures favorable to seed germination and

seedling establishment. The low number of occurrences, however, as well

as individuals, also subjects the species to the possibility of

stochastic extinction.

Previous Federal Action

Federal action on three of the five plants began when the Secretary

of the Smithsonian Institution, as directed by section 12 of the Act,

prepared a report on those native U.S. plants considered to be

endangered, threatened, or extinct in the United States. This report

(House Document No. 94-51), which included Erigeron parishii and

Lesquerella kingii ssp. bernardina as threatened and Eriogonum

ovalifolium var. vineum as endangered, was presented to Congress on

January 9, 1975. On July 1, 1975, the Service published a notice in the

Federal Register (40 FR 27823) accepting the report as a petition

within the context of section 4(c)(2) (now section 4(b)(3)) of the Act

and of the Service's intention thereby to review the status of the

plant taxa named therein, including Erigeron parishii, Eriogonum

ovalifolium var. vineum, and Lesquerella kingii ssp. bernardina.

The Service published an updated notice of review for plants on

December 15, 1980 (45 FR 82480). This notice included Eriogonum

ovalifolium var. vineum and Lesquerella kingii ssp. bernardina as

category 1 candidates (species for which the Service has substantial

information on biological vulnerability and threat to support proposals

for listing) and Erigeron parishii as a category 2 candidate (species

for which data in the Service's possession indicate listing is possibly

appropriate, but for which substantial information on biological

vulnerability and threats is not currently available to support

proposals for listing).

On February 15, 1983 (48 FR 6752), the Service published a notice

of its prior finding that the listing of Eriogonum ovalifolium var.

vineum and Lesquerella kingii ssp. bernardina is warranted but

precluded in accordance with section 4(b)(3)(B)(iii) of the Act, as

amended in 1982. Pursuant to section 4(b)(3)(C)(i) of the Act, the

finding must be recycled on an annual basis, until the species is

either proposed for listing or the petitioned action is found to be not

warranted. In October 1983, 1984, 1985, 1986, 1987, 1988, 1989, and

1990, further findings were made that the listing of Eriogonum

ovalifolium var. vineum and Lesquerella kingii ssp. bernardina was

warranted, but that the listing of these species was precluded by other

pending proposals of higher priority. In the September 27, 1985 (50 FR

39526), and February 21, 1990 (55 FR 6184), plant notices of review,

Eriogonum ovalifolium var. vineum and Lesquerella kingii ssp.

bernardina were again included as category 1 candidates, and Erigeron

parishii as a category 2 candidate. The February 21, 1990, notice also

included Astragalus albens in category 1 and Oxytheca parishii var.

goodmaniana in category 2. Since publication of that notice, additional

survey work was completed for Oxytheca parishii var. goodmaniana,

providing new information on the status of that species. Similarly, the

Service was made aware of increased threats to Erigeron parishii, in

the form of two new pending mining operations that would likely

adversely impact this species. As a result, on November 19, 1991 (56 FR

58332), the Service published a proposed rule in the Federal Register

to list the five plants as endangered.

Summary of Comments and Recommendations

In the November 19, 1991, proposed rule and associated

notifications, all interested parties were requested to submit factual

reports or information relevant to a final decision on the listing

proposal. Appropriate State agencies, county governments, Federal

agencies, scientific organizations, and other interested parties were

contacted and requested to comment. Requests for a public hearing were

received from eight parties, primarily mining industry representatives,

but also including the National Inholders Association and the Bear

Mountain Ski Resort. As a result, on May 15, 1992, and again on May 26,

1992, the Service published notices in the Federal Register (57 FR

20805 Bernardino Sun and the Barstow Desert Dispatch. Requests for a

public hearing were received from eight parties, primarily mining

industry representatives, but also including the National Inholders

Association and the Bear Mountain Ski Resort. As a result, the Service

conducted a hearing on June 3, 1992, at the San Bernardino County

Government Center in San Bernardino. Testimony was taken from 1 p.m. to

4 p.m., and from 6 p.m. to 8 p.m., with 21 parties presenting

testimony.

During the comment periods, the Service received written and oral

comments from 51 parties. Multiple comments were received from mining

industry representatives, both during and after the closure of the

comment periods. The California Department of Fish and Game, The Nature

Conservancy, California Native Plant Society, Audubon Society, Sierra

Club, Natural Heritage Foundation, Center for Plant Conservation,

Rancho Santa Ana Botanic Garden, University of California Natural

Reserve System, and the Forest Service were 10 of 36 commenters

expressing support for the listing proposal. Eleven commenters,

including seven mining industry representatives, two multiple-use

groups, and one assemblyman opposed the listing. The Bureau of Mines

initially opposed the listing during the public comment period.

However, oral testimony at the public hearing by a Bureau of Mines

representative indicated a more neutral stance and an offer to assist

in data analysis to be used in the development of a Forest Service

habitat management guide for the five taxa. Most of those opposed to

the listing also asked for a 6-month extension to the rulemaking

process to allow results of additional surveys completed during the

1992 field season to be included in the final determination. Four

commenters were neutral, including a Congressman, one county

supervisor, and the Big Bear Chamber of Commerce. In addition, results

of additional surveys for the plants (CNDDB 1992, TMC 1992) and

additional biological information that was submitted to the Service

since publication of the proposal have been incorporated into this

final rule. Opposing comments and other comments questioning the rule

have been organized into specific issues. These issues and the

Service's response to each are summarized as follows:

Issue 1: Numerous comments were received concerning the Service's

reference to the five plants as ``limestone endemics'' in the proposal.

This reference appears to be of great concern to the mining industry

because a number of populations occur on dolomite, quartz monzonite,

granite, or mixed lithologies of these substrates, and not solely on

limestone, in the strict sense. Other commenters focused on the

Service's use of inaccurate geologic maps that indicated that

substrates at particular plant locations were limestone, while maps

currently being revised by the U.S. Geological Survey (USGS) will

indicate that substrates in those locations may actually consist of

dolomite or other rock types. Many of these commenters believe that

more accurate geologic data would disprove the hypothesis that these

plants are ``limestone endemics.''

Service Response: According to the Dictionary of Geologic Terms,

one definition of ``limestone'' is given as ``(A) general term for that

class of rocks that contain at least 80 per cent of the carbonates of

calcium or magnesium'' (American Geologic Institute 1976). Apparently

in keeping with this definition, the USGS map for the Lucerne Valley

quadrangle (7.5 minute series) referred to the Furnace Limestone unit

as being comprised of white carbonate rocks, grey carbonate rocks,

quartzite, and phyllite--metasedimentary rocks of Paleozoic age (USGS

1964). Similarly, the California Division of Mines and Geology map for

the San Bernardino quadrangle (1:250,000) refers to the same units as

upper Paleozoic limestone and marble, and Cambrian and uppermost

Precambrian crystalline limestone (California Division of Mines and

Geology 1986). These maps represent the best information available to

the Service. The colloquial use of the term ``limestone endemic'' to

refer to the five taxa under discussion is based, in part, on the

generic use of the term ``limestone'' by geologists and botanists.

While intending to use ``limestone'' as a generic term, the Service

erred in the proposal by referring to such substrates as calcium

carbonate deposits, rather than simply carbonate deposits. The term

calcium carbonate, or limestone in the more technical sense, refers to

carbonate with a high percent of calcium, as differentiated from

dolomite, which is carbonate with a high percent of magnesium. The

Service has used more precise descriptions of substrate type in this

rule and generally refers to these species as ``carbonate endemics.''

The Service looks forward to any additional information that the

revised USGS maps will provide.

Issue 2: Numerous commenters contended that the plants are not

endemic to the 35-mile range of the north slope of the San Bernardino

Mountains but are also found to the east and west of that range and in

mountain ranges of the Mojave Desert. Several commenters indicated that

geologists had observed several of the taxa in the New York Mountains.

Service Response: The record of botanical collections and surveys

from the San Bernardino Mountains and the Mojave Desert ranges is more

than adequate to establish general ranges of the plants. Additional

surveys were conducted in 1992 in four mountain ranges in the east

Mojave Desert, in the San Bernardino Mountains, and in the San Gabriel

Mountains to determine any range extensions for the five taxa. Only one

of the four new populations of Erigeron ovalifolium var. vineum was

located outside of the known range and this was within a mile of known

locations. The Forest Service also conducted additional surveys in 1991

and 1992 for all five taxa, which resulted in a significant range

extension for Oxytheca parishii var. goodmaniana. However, with the

exception of the range extension for Oxytheca parishii var.

goodmaniana, the newly located populations do not represent significant

new biological or distributional data affecting the status of the

remaining four plants. Although the new range extension for Oxytheca

parishii var. goodmaniana is considered significant, the taxon is still

so limited in distribution that listing as endangered is still

appropriate. In addition, no unthreatened populations were discovered.

Issue 3: Numerous commenters contended that surveys for the plants

were not adequate or up-to-date, that the plants have only been found

on limestone because only limestone substrates were targeted for

surveys, and that the discovery of additional populations with each new

survey indicates that the plants are more widespread than previously

thought. Some commenters stated that the surveys were performed by

``biased individuals'' whose unpublished reports had not been subject

to peer review, and that information on which the proposal was based

constituted ``junk science.'' Other commenters stated that the existing

knowledge of the plants was more than adequate to proceed with listing,

and that a 6-month extension for the purpose of collecting additional

information on the range and distribution of the plants, as requested

by the mining industry, was unnecessary.

Service Response: Botanists have been collecting plants in southern

California for scientific study for over 150 years; all five plants

were originally collected at least 100 years ago. Carbonate substrates

in particular have been the focus of numerous surveys because botanists

have recognized that these nutrient-deficient substrates often support

unique taxa. As early as 1979, the Forest Service performed rangewide

surveys of three of the taxa (Erigeron parishii, Eriogonum ovalifolium

var. vineum, and Lesquerella kingii ssp. bernardina). Moreover, since

1979, the Forest Service has conducted surveys of almost all ground-

disturbing projects on the San Bernardino National Forest to determine

project impacts to species considered to be sensitive and has performed

botanical investigations of at least 25 taxa. The surveys have been

conducted on numerous substrates and throughout the geographic range of

the San Bernardino and adjacent National Forests, including the San

Bernardino, San Gabriel, and San Jacinto Mountains. While the Service

recognizes that new occurrences may be discovered through additional

surveys, the body of information is adequate to proceed with this

listing. The Service accepts the reliability of the surveys performed

and considered this information the best scientific information

available.

Issue 4: Several commenters charged that the Service ignored

results of propagation studies on Erigeron parishii and Eriogonum

ovalifolium var. vineum performed by Rancho Santa Ana Botanic Garden

that indicate that 1) the two plants do not require limestone, and 2)

the plants are easy to propagate from seeds and cuttings. The industry

believes these results show a potential for successful reclamation

after mining.

Service Response: The Service is fully aware of the propagation

efforts for two of the species (Erigeron parishii and Eriogonum

ovalifolium var. vineum) by Rancho Santa Ana Botanic Garden researchers

(Mistretta 1991). However, germination or survival under horticultural

conditions does not accurately represent conditions required for long-

term survival in the wild. Other efforts to propagate Erigeron parishii

from seed have met with less success (Forest Service 1992). The results

of these studies are preliminary and inconclusive, and the long-term

viability of species under cultivation is questionable. In addition,

the normal life histories and other habitat characteristics of

substrate endemics typically are not maintained in horticultural

settings.

The success rate for salvage of Eriogonum ovalifolium var. vineum

from the Gordon Quarry was less than 50 percent (Forest Service 1992).

Although some potential for reclamation with these species after mining

may exist, the purpose of the Act is to conserve ecosystems upon which

listed species depend. Reintroduction is a potentially important

recovery tool, but it has not been shown to restore mine sites to pre-

disturbance conditions that would ensure the long-term survival of such

plants and, therefore, does not preclude the need to list the species.

Issue 5: Several commenters were concerned that important

information concerning the potential for reclamation of mined sites was

not included in the proposal. They claim that three of the plants

(Astragalus albens, Erigeron parishii, and Eriogonum ovalifolium var.

vineum) are opportunistic, weedy intruders, or invaders. As evidence,

they cited the Barrows surveys that document populations occurring on

roadbeds, roadcuts, and quarry benches. They also state that

accompanying notes indicate populations in these disturbed habitats are

more vigorous or more dense than those on adjacent pristine areas, and

the plants appear to tolerate light disturbances. Some commenters

indicated that old roadbeds, roadcuts, and old quarry benches

constituted more than ``lightly disturbed'' habitat, and that the

plants in fact can recolonize heavily disturbed sites. One commenter

stated that ``the effects of mining as a possible positive influence''

had not been considered.

Service Response: The Service did not reference Astragalus albens,

Erigeron parishii, and Eriogonum ovalifolium var. vineum growing on old

roadbeds, roadcuts, and quarry benches because, in most cases, these

plants did not constitute independent self-perpetuating populations,

but rather scattered individuals that had dispersed into disturbed

habitat from adjacent populations on undisturbed habitat. The Forest

Service has noted that Eriogonum ovalifolium var. vineum and Erigeron

parishii have colonized infrequently used roads at three sites, and

small quarries at two sites, each of which is less than 1 hectare (2

acres) in size, have been abandoned for 20 to 25 years, and had small

patches of native vegetation left within them at the time of mining. In

contrast, no colonization by any of the five plants has been observed

in the larger quarries. Furthermore, Forest Service surveys at the

Right Star site for Astragalus albens indicate that the mean density of

individuals in disturbed areas is significantly lower than that in

adjacent undisturbed areas (137 versus 679 per acre) (Forest Service,

in litt., 1992).

Initial flushes of recolonization by plants may occur in response

to light and very intermittent disturbance. The mechanism under which

recolonization occurs and its role in the long-term survival of the

five species is unknown. Research on recolonization may indicate that

the species can recolonize areas to aid in their long-term survival.

However, data do not indicate that these plants have extensive

recolonization capabilities. Heavily disturbed sites, (i.e., those

stripped to bedrock with little residual fine-textured substrates, and

with no nearby islands of native vegetation from which plants can

recolonize) do not show any levels of successful recolonization.

Several recent reports document Erigeron parishii occurring on

tailing slopes (Brown, in litt., 1992). Recent observations by an

interagency reclamation review team that visited all four current

quarry operations on the north slope of the San Bernardino Mountains

found that Salsola sp. (Russian thistle) was the most prevalent plant

on tailing slopes and road berms (Forest Service 1992). Erigeron

parishii or the other taxa under discussion on even ``lightly

disturbed'' sites may or may not represent independent self-

perpetuating populations.

Issue 6: Several commenters stated that a lack of understanding of

mining operations has led to a premature conclusion about the impact of

mining on plant habitat. One commenter noted that a block of mining

claims does not represent the actual area that would be disturbed

during mining operations. Brown (in litt., 1992), who recently remapped

the geology of the San Bernardino quadrangle in collaboration with

USGS, stated that about 2 percent of the limestone in the San

Bernardino Mountains is of commercial value and would be subject to

mining within the next 75 years. The remaining limestone will not be

mined, though virtually all of it is under claim.

Service Response: The impact of mining on plant habitat is not

restricted to the quarry site itself, but includes loss of habitat

through overburden (materials that need to be removed to reach the

underlying limestone, as well as the low-grade limestone that is

currently not being marketed) dumping, tailing dumping, road

construction (including sidecasting), and exploratory mining activity,

which may constitute a surface disturbance several times the size of

the quarry. Additional biological values of the habitat may be lost

through habitat fragmentation, alteration of hydrology, and an increase

in airborne particulates that may depress pollinator success.

Aside from whether the extent of primary and secondary impacts of

mining on plant habitat are being accurately assessed, the threat that

exists to plant habitat from the mere presence of mining claims must be

considered. According to the Mining Law of 1872 (30 U.S.C. 22 et seq.),

a claimholder must have a sincere intent to mine; in fact, a claim can

be legally seized by another party if the original claimholder is shown

not to meet this requirement. No mechanisms are currently available to

Federal land management agencies making regulatory decisions to protect

sensitive natural resources on lands that are under claim. This

situation is discussed more thoroughly under Factor D below.

Issue 7: A few commenters stated that the Endangered Species Act

addresses species, and not varieties or subspecies. Therefore, if the

range of the three species (Eriogonum ovalifolium, Lesquerella kingii,

and Oxytheca parishii), which includes the Sierra Nevada Mountains, the

desert mountain ranges, Oregon, and Nevada, is considered, none of the

varieties or subspecies of these three plants could be considered

endangered under the Act.

Service Response: Section 3(15) of the Act states that ``The term

``species'' includes any subspecies of fish or wildlife or plants. * *

*'' In response to concerns from the Smithsonian Institution that the

definition included subspecies but not varieties, the Service published

regulations on April 26, 1978 (43 FR 17912) that discussed common use

of both terms by botanists and recognized plant ``varieties'' as

equivalent to ``subspecies'' and, therefore, ``species,'' as defined by

the Act.

Issue 8: A few commenters thought that the five taxa do not meet

the definition of ``endangered'' according to the Act. Similar comments

stated that the taxa are so ``regenerative'' and so common they could

never be endangered, farmers in Lucerne Valley have been trying to

eradicate Astragalus albens for years without success, the California

Department of Fish and Game has not listed these taxa as rare, and the

only reason the taxa were being proposed for listing was to satisfy the

California Native Plant Society lawsuit agreement.

Service Response: Although additional survey data and information

on threats posed to the five plant taxa by mining were presented to the

Service, none of the information contradicted the Service's contention

that the five taxa are threatened by mining and other potential impacts

in the San Bernardino Mountains (see Factor A in Summary of Factors

Affecting the Species). In fact, a report submitted on behalf of the

mining industry (TMC 1992) confirmed the limited distribution of these

five taxa. For example, in the TMC report, the greatest increase in

population size for any of the five taxa surveyed amounted to less than

2 percent for Eriogonum ovalifolium var. vineum and occurred primarily

within the currently known range of the plant. Thus, the Service has

concluded that the distribution of the five species was sufficiently

well known prior to the proposed listing, and has not significantly

changed with additional survey results. The comment concerning the

commonness of Astragalus albens in Lucerne Valley is evidently a case

of mistaken identity; A. albens has never been recorded from the

Valley.

The procedures for designating species as threatened or endangered

are outlined in section 4(a)(1) of the Act and promulgated regulations

(50 CFR part 424). As discussed earlier in this rule, Federal action on

several of these taxa began as early as 1975. While the California

Native Plant Society lawsuit settlement may have accelerated the rate

at which California plant species have been proposed for listing, the

suit does not change the standards by which species are evaluated for

potential listing. Moreover, preparation of the proposal was

essentially completed prior to the California Native Plant Society

settlement agreement. Although the State has not pursued listing any of

these taxa, the California Department of Fish and Game has clearly

stated its support for the listing of all five taxa and has provided a

substantial amount of information to the Service that was used in

preparation of this final rule.

Based upon information the Service has received regarding the

status and distribution of these five species, including data from the

Forest Service, The Nature Conservancy, local botanists, private

consultants, and mining industry, the Service believes that the listing

of these plants is warranted. The Service finds that Astragalus albens,

Eriogonum ovalifolium var. vineum, Lesquerella kingii ssp. bernardina,

and Oxytheca parishii var. goodmaniana are in danger of extinction

throughout all or a significant portion of their ranges and, therefore,

fit the definition of endangered as defined in the Act. Erigeron

parishii has the widest range and largest number of populations of the

species proposed herein for listing; moreover, several populations are

known to occur on non-carbonate substrates that are not under claim.

However, a large portion of its range is under mining claims, and only

the population at the Burns Reserve currently has any permanent

protection. Therefore, it is likely to become endangered in the

foreseeable future and fits the definition of threatened as defined in

the Act.

Issue 9: Several commenters stated that the effects of drought on

the plants had not been considered in the proposal, implying that the

plants would not be considered rare if surveys were performed during

non-drought years when the species were more abundant. One commenter

felt that the effects of drought should be studied and quoted Rupert

Barneby who, when describing Astragalus albens, wrote ``* * * in years

of low rainfall, * * * the populations become decimated or even

annihilated except for dormant seeds. In the first spring after a

drought of several seasons duration, whole colonies of young plants can

be found in prolific flower * * *'' (Barneby 1964).

Service Response: It is well known that drought will reduce both

vigor and abundance of annual as well as short-lived or herbaceous

perennial species. In the same sentence that was quoted above, Rupert

Barneby wrote that ``* * * the plants flower precociously; and a good

proportion of them are probably monocarpic, especially in years of low

rainfall * * *'' (Barneby 1964). Monocarpic plants, those which flower

and fruit once and then die, may be particularly subject to the

vagaries of climate, especially in regions that are typically arid.

Seed for these plants may persist in the soil for years before

favorably climatic conditions allow for successful seedling germination

and establishment. This habit points out the need to maintain

undisturbed habitat for the plants to accommodate the ``boom and bust''

cycles in population sizes. While the Service agrees that it would be

interesting to study the effects of drought on the fluctuations in

plant population sizes, the ranges of all five plants under discussion

are small and their habitat currently receives little protection.

Reference to the effects of drought on Astragalus albens and

Lesquerella kingii ssp. bernardina is included in this rule in the

Background section and under Factor E in the Summary of Factors

Affecting the Species.

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 Erigeron

parishii Gray (Parish's daisy), Eriogonum ovalifolium Nuttall var.

vineum (Small) A. Nelson (Cushenbury buckwheat), Astragalus albens

Greene (Cushenbury milk-vetch), Lesquerella kingii Wats. ssp.

bernardina (Munz) Munz (San Bernardino Mountains bladderpod), and

Oxytheca parishii var. goodmaniana Ertter (Cushenbury oxytheca) are as

follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. All five species proposed for

listing are restricted primarily to carbonate and adjacent carbonate/

granitic substrates occupied by pinyon-juniper woodland on the northern

side of the San Bernardino Mountains. The imminent and primary threat

facing these species is the ongoing destruction of the carbonate

substrates on which they grow by activities associated with limestone

mining, including direct removal of mined materials, disposal of

overburden on adjacent unmined habitat, and road construction.

Additional threats to their habitat include off-highway vehicle use,

urban development near the community of Big Bear, development of a ski

run, and energy development projects.

The first burst of mining activity in the San Bernardino Mountains

occurred in the 1860s with the discovery of gold in Holcomb Valley.

Historically, gold was extracted both by underground mining and by

placer mining. Only small-scale and weekend prospecting for gold

continues today. However, gold-bearing alluvium in Holcomb Valley has a

low to medium potential for development in the future, and a good

potential exists for a large gold extraction operation in the Blackhawk

area (Forest Service 1988). Several silver mines were also in operation

during the late 1800s in Cushenbury Canyon and near Blackhawk Mountain.

Limestone is considered a locatable mineral, as are gold and

silver, and, therefore, is open to claim under the 1872 mining law.

Virtually all of the approximately 13,210 hectares (32,620 acres) of

carbonate substrates within the San Bernardino Mountains are currently

under claim. Recent calculations by Brown (in litt., 1992) break down

the 13,210 hectares (32,620 acres) into component substrates as

follows: 4,040 hectares (9,980 acres) of dolomite (30.6 percent), 7,910

hectares (19,530 acres) of limestone (59.9 percent); and 1,260 hectares

(3,110 acres) mixed limestone and dolomite (9.5 percent).

Most of the currently mined limestone is being processed by four

operations that are located along the base of the north slope of the

mountains. Because of the limited availability of limestone in the

western United States, those claims currently not under production are

still being maintained either in anticipation of a future market, as a

means of keeping claims from being mined by competing companies, or in

anticipation of leasing out claims for the extraction of other valuable

minerals.

In the surrounding Lucerne Valley mining district, the first

limestone mines started operation in the 1940s; the current annual

production of limestone is approximately 3.3 million tons (Forest

Service 1988). Annual production, however, typically represents only

the fraction of material that is trucked off the mine site as product.

The ratio of disturbed material to product material may range from 1:1

up to more than 5:1. Forest Service records indicate that ratios at

Riverside Cement (Partin) between 1972 and 1977 ranged from 4.9:1 to

13:1, and averaged 7.1:1. A 1988 calculation for the same operator

placed the ratio at 6.7:1 (Forest Service 1988). Thus, based on the

1988 production of 3.3 million tons of limestone and a 5:1 ratio of

disturbed material to limestone, 16.5 million tons of waste material

would be generated. A typical mine site consists of an open pit or

terraced pit, haul roads for hauling the blasted rock to a processing

plant, and the processing plant itself, which sorts and crushes the

material. The overburden is redistributed in piles on site. In the

future, less low-grade limestone will be left onsite as the market for

limestone products changes. The direct impacts to four of the five

plants from limestone mining include the removal and destruction of

individuals and habitat from mining, the construction of haul roads,

and the deposition of overburden piles on top of currently occupied

habitat. Certain operations targeting pharmaceutical grade limestone

tend to create a higher ratio of exploratory roads and access roads

relative to the size of the quarry operations since those deposits are

smaller.

Aside from impacts associated with gold and limestone mining,

several species are potentially threatened by destruction of habitat by

other activities. Sand and gravel is currently being mined, and a new

operation has been proposed for several washes on the lower desert-

facing slopes that may impact at least one occurrence of Erigeron

parishii (TMC 1989). Urban development has encroached upon several

occurrences of Lesquerella kingii ssp. bernardina near Big Bear City

and threatens to encroach upon an occurrence of Erigeron parishii near

Pioneertown. The proposed addition of a downhill ski run to the ski

area on the north side of Sugarlump Ridge may eliminate portions of an

occurrence of Lesquerella kingii ssp. bernardina.

Other impacts include the destruction of individuals and habitat

through increased off-highway vehicle and other recreational use that

departs from roads built for mining assessment work as well as

abandoned mine roads. The Forest Service has proposed construction of

two new sections of the integrated off-highway vehicle system; these

will potentially impact populations of all taxa except Lesquerella

kingii ssp. bernardina.

Since publication of the proposal to list the five taxa, initial

proposals for two energy developments have been received by the Forest

Service. A proposed hydroelectric generation plant, which includes the

use of an old mine quarry to hold water and new ground disturbance for

construction of water delivery pipelines, would likely negatively

affect populations of all five taxa except Lesquerella kingii ssp.

bernardina. A 115-kilovolt powerline proposed for construction through

Cushenbury Canyon may affect Erigeron parishii, Eriogonum ovalifolium

var. vineum, Astragalus albens, and Oxytheca parishii var. goodmaniana.

Because the location of the five plants is tied primarily to the

location of carbonate deposits, it is useful to discuss threats

relative to the primary plant population centers. A description of the

primary population centers of the five plants and the threats in each

area follows.

The westernmost occurrences of two of the plants under discussion

(Erigeron parishii and Eriogonum ovalifolium var. vineum) are in the

vicinity of White Mountain, an outcrop that rises to 2,100 meters

(6,900 ft) in elevation above the desert community of Lucerne Valley.

The third largest of the limestone mines is located here, with an

annual production of approximately 500,000 tons. The proximity of

occurrences of Erigeron parishii and Eriogonum ovalifolium var. vineum

to current mining operations indicates that these plants occurred on

the mining site, but have been extirpated from it. The westernmost

populations of these two species will soon be eliminated under a

recently approved mining plan of operations. As compensation for this

impact, the County of San Bernardino has directed the mining company to

sponsor horticultural studies and experimental reseeding on reclaimed

portions of the mine site.

Approximately 7.5 km (6 miles) to the east of White Mountain, the

north side of Holcomb Valley drops off abruptly into Furnace Canyon.

Habitat for Erigeron parishii and Eriogonum ovalifolium var. vineum was

removed by quarry operations, including the construction of haul roads

and the dumping of overburden at these quarry sites, which were

primarily abandoned prior to 1974. In the areas adjacent to the quarry

sites, populations of Erigeron parishii, Eriogonum ovalifolium var.

vineum, and Astragalus albens, portions of which have been eliminated,

are still found. A proposed hydroelectric generation plant would use

one of the abandoned quarries. If the proposed hydroelectric plant is

approved, new disturbance associated with the project would likely

disturb habitat for Erigeron parishii, Eriogonum ovalifolium var.

vineum, Astragalus albens, and Oxytheca parishii var. goodmaniana.

The second largest operating limestone mine, with an annual

production of 800,000 tons, is operating in the vicinity of Marble

Canyon, a few miles east of Furnace Canyon. A recent expansion of one

overburden pile is eliminating a sizable population of Astragalus

albens.

Six kilometers (4 miles) to the east of Furnace Creek is the deeply

incised Cushenbury Canyon. The mining operation located at this site

has an annual production of 2,000,000 tons of limestone, the largest of

the four currently operating limestone mines. Erigeron parishii,

Eriogonum ovalifolium var. vineum, and Astragalus albens are found on

the rocky slopes surrounding Cushenbury Canyon. A number of populations

have already been negatively affected by mining and road construction.

Up until several years ago, dust from the crushing operation was

settling on the slopes downwind from the operation. The resultant and

still present crust that formed on the slopes is thought to have

inhibited the growth and survival of a number of plant species,

including populations of Erigeron parishii, Eriogonum ovalifolium var.

vineum, and Astragalus albens. A population of Oxytheca parishii var.

goodmaniana, one of the most restricted of the five taxa under

discussion, was also rediscovered in this area in 1978. The species was

not searched for in a 1990 survey at this location due to continuing

drought conditions. A few populations of Erigeron parishii are found on

alluvial substrates below the mouth of Cushenbury Canyon. A recent

proposal to mine these alluvia for sand and gravel would threaten these

populations.

Erigeron parishii, Eriogonum ovalifolium var. vineum, and

Astragalus albens occur 3.2 km (2 miles) to the east of Cushenbury

Canyon on Blackhawk Mountain, which rises to an elevation of 2,000

meters (6,700 ft). Historically, gold and silver were mined near

Blackhawk Mountain. New gold mining activity using cyanide heap-leach

methods has been proposed for the north slope of Blackhawk Mountain,

although to date only exploratory drilling has been done. Blackhawk

Mountain currently supports one of the best assemblages of the

carbonate endemic species. Old roads bisect the habitat, but the lack

of limestone mining has left much of the landscape intact. Creek

drainage, another dozen occurrences of these three species are

scattered along Nelson Ridge and an unnamed ridge that flank Long

Valley for a distance of approximately 6.4 km (4 miles). No active

mining is currently found along the Helendale Fault, though historic

mining may have affected certain occurrences, and some assessment work

is currently being done.

Above Lone Valley, the main fork of Arrastre Creek slowly climbs

for another 6.4 km (4 miles) towards the Rose Mine Valley-Tip Top

Mountain area. Scattered occurrences of Eriogonum ovalifolium var.

vineum are found along this stretch. Some of the densest stands of

Eriogonum ovalifolium var. vineum have been bisected by motorcycle and

jeep trails near Rose Mine Valley (Krantz 1979b); such use of the area

continues.

Farther south and east, the tributaries of Arrastre Creek run off

the north and west slopes of Tip Top Mountain, which rises to an

elevation of 2,000 meters (6,700 ft). On the south and east side of Tip

Top Mountain, tributaries flow into the Rattlesnake Canyon drainage.

Along this drainage is another cluster of occurrences of Erigeron

parishii and Eriogonum ovalifolium var. vineum. Significant new

populations of Oxytheca parishii var. goodmaniana were located by

Forest Service surveys in 1992 near Tip Top Mountain and nearby Mineral

Mountain. The easternmost occurrences for Oxytheca parishii var.

goodmaniana and Eriogonum ovalifolium var. vineum occur a few miles

east of Tip Top Mountain. Historic mining has affected Erigeron

parishii and Eriogonum ovalifolium var. vineum; Krantz (1979b) noted

that a dirt road leading to an abandoned quarry had bisected habitat

for both plants. Erigeron parishii may be able to tolerate some

disturbance, as evidenced by its occurrence along roadsides, while

Eriogonum ovalifolium var. vineum remains absent from roadsides in this

area (Krantz 1979a, 1979b). Off-road vehicle traffic currently

adversely impacts plants in this area.

About 24 km (15 miles) south and east of Tip Top Mountain, the

mountains give way to the broad alluvial fans of the upper desert. Near

Burns Reserve and Pioneertown, a few disjunct occurrences of Erigeron

parishii are found. The Burns Reserve is protected by the State of

California through the auspices of the Natural Reserve System of the

University of California. The Pioneertown site has been proposed for

urban development. The Nature Conservancy has secured a voluntary

agreement with the landowner to protect the Erigeron parishii at this

site.

Scattered patches of carbonate substrate occur outside the main

belt that traverses the San Bernardino Mountains. On the east end of

Bertha Ridge, north of Bear Valley, several small patches of

Lesquerella kingii ssp. bernardina and Eriogonum ovalifolium var.

vineum occur. These populations are adjacent to the community of Big

Bear and are subject to impacts associated with urban development.

Surveys by Myers and Barrows (1988) indicated that several occurrences

of Lesquerella kingii ssp. bernardina have been reduced in size since

the previous surveys were performed in 1980 (Wilson and Bennett 1980).

At the northern edge of Holcomb Valley, Oxytheca parishii var.

goodmaniana is found near an old gold mine site. A low to moderate

potential exists for the reactivation of mining activity in this area

in the future, depending on the price of gold (Forest Service 1988).

On the north-facing slope of Sugarlump Ridge on the south side of

Bear Valley, several large populations of Lesquerella kingii ssp.

bernardina were recently discovered. Several of these populations may

be affected by the proposed expansion of a downhill ski area (Michael

Brandman & Associates 1990).

In summary, virtually all of the carbonate substrates where these

five species occur are under claim and subject to being mined or are

threatened by other disturbance. The only sizable carbonate substrates

not under claim are located on the south side of Bear Valley near

Sugarlump Ridge. Those claims that are not currently being mined are

being maintained either in anticipation of expanding operations once

current quarry supplies are depleted (as a means of keeping competing

companies from mining the claims) or in anticipation of leasing the

claims for the mining of other valuable minerals.

All five taxa, except Erigeron parishii, are limited mainly in

distribution to carbonate substrates within a 40-km (25-mile) range

along the primarily northern slopes of the San Bernardino Mountains.

The range of the five taxa overlap for the most part, but Erigeron

parishii extends to the southeast another 16 km (10 miles). Although

Erigeron parishii is found primarily on carbonate substrates, several

occurrences are on non-carbonate substrates. The five species occur on

lands under mining claim or on lands that have been patented, which

subjects them to habitat destruction. Other activities, such as off-

highway vehicle recreation, urbanization, development of a ski run, and

energy development projects, threaten to alter or destroy habitat for,

as well as the limited number of occurrences of, these five species.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. Although these species are not presently sought

after by collectors, they are vulnerable to taking because of their

limited distribution. Some plant taxa have become vulnerable to

collecting by curiosity seekers as a result of increased publicity

following listing. The increased public attention could potentially

increase their desirability, thereby increasing the threat of

collection.

C. Disease or predation. No data exist to substantiate whether or

not disease threatens any of the plants. The seed capsules of

Lesquerella kingii ssp. bernardina were observed to have been broken

open by unknown seed predators at one of the Big Bear occurrences (C.

Rutherford, U.S. Fish and Wildlife Service, and M. Lardner, U.S. Forest

Service, pers. obs., 1990). It is unknown whether seed predation would

affect the viability of the species. In the vicinity of Round Mountain,

several occurrences of Astragalus albens are known to occur within a

grazing allotment administered by the Bureau of Land Management (BLM).

The effects of cattle grazing on this species have not yet been

investigated.

D. The inadequacy of existing regulatory mechanisms. All five

plants are on List 1B of the California Native Plant Society,

indicating that, in accordance with chapter 10, sec. 1901 of the

California Department of Fish and Game Code, they are eligible for

State listing. If State listing were pursued, the Native Plant

Protection Act and the California Endangered Species Act would prohibit

the ``take'' of State-listed plants (Fish and Game Code chapter 10,

sec. 1908, and chapter 1.5, sec. 2080), but would not protect the

plants from taking 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'' (chapter 10, sec. 1913). Although these State laws provide a

measure of protection to the species, they are not adequate to protect

the species in all cases. Numerous activities do not fall under the

purview of this legislation, such as certain projects proposed by the

Federal government and projects falling under State statutory

exemptions. Where overriding social and economic considerations can be

demonstrated, these laws allow project proposals to go forward, even in

cases where the continued existence of the species may be jeopardized

or where adverse impacts are not mitigated to the point of

insignificance.

About 20 to 25 percent of the occurrences of Erigeron parishii and

15 to 20 percent of the occurrences of Eriogonum ovalifolium var.

vineum occur on private land. The mining of limestone on private land

is under the jurisdiction of the county of San Bernardino, which is

responsible for administering regulations in accordance with the

California Environmental Quality Act and the California Endangered

Species Act. The county has included terms and conditions in the

granting of certain operating permits that have directed the applicants

to undertake efforts to restore the habitat and reintroduce Erigeron

parishii and Eriogonum ovalifolium var. vineum to the site. Recently,

the county included a permit condition for the expansion of an

overburden pile that required the applicant to designate preserve areas

with the concurrence of the California Department of Fish and Game and

the Service. One population of Erigeron parishii occurs on land owned

by the University of California at the Burns Pinyon Reserve; no

activities are currently planned that would affect the population. The

remaining occurrences of these two species, as well as almost all the

occurrences of the other three species are primarily on lands managed

by the Forest Service and, to a lesser degree, by BLM.

Several laws enacted by Congress and regulations promulgated to

implement them address surface management of Federal lands, including

mining, but they provide limited protection for natural resources. For

instance, the Federal Land Policy and Management Act (FLPMA) of 1976

(43 U.S.C. 1701 et seq.), as amended, was passed to provide policy for

``the management, protection, development, and enhancement'' of public

lands managed by BLM. Section 302 of FLPMA, which addresses management

of use, occupancy, and development of public lands, states ``* * * the

Secretary shall, by regulation or otherwise, take any action necessary

to prevent unnecessary or undue degradation of the lands'' (43 U.S.C.

1732 (b)). Unnecessary or undue degradation is defined to mean surface

disturbance greater than that which would normally result by a prudent

operator taking into account the effects of mining operations on other

resources (43 CFR 3809.0-5(k)). The policy of FLPMA as expressed by

regulation is that a person has a statutory right to mine certain

Federal lands (43 CFR 3809.0-6). Mining operations that exceed 5 acres

in extent and certain other defined operations require a plan of

operations that must be approved by BLM (43 CFR 3809.1-4, 1-6).

However, prior to approval of the plan, BLM must evaluate the action

with respect to any species that is proposed or listed as endangered or

threatened and with respect to its critical habitat if any.

Federal agencies, such as BLM, are required to (1) 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, or (2) enter into

formal consultation with the Service on any action that is likely to

jeopardize the continued existence of a listed species or result in

destruction or adverse modification of critical habitat. However,

Federal agencies are not required to implement Service recommendations

for proposed species or proposed critical habitat. Therefore, although

FLPMA affords some general protection in that resources other than

mining interests must be considered by an operator, the protections

afforded listed species pursuant to section 7 of the Endangered Species

Act are not required to be implemented unless listing takes place.

Thus, listing affords additional protection to these particular

species.

Additionally, section 601 of FLPMA specifically addresses

management of public lands within the California Desert Conservation

Area, which includes all BLM lands where four of the five plants occur

(except Lesquerella kingii ssp. bernardina) (43 U.S.C. 1781). The

purpose of this section is ``to provide for the immediate and future

protection and administration of the public lands in the California

desert within the framework of a program of multiple use and sustained

yield, and the maintenance of environmental quality'' (43 U.S.C. 1781).

Multiple use is defined, in part, to mean ``the management of the

public lands and their various resource values so that they are

utilized in the combination that will best meet the present and future

needs of the American people . . .'' (43 U.S.C. 1702(c)). The concept

of multiple use includes the ``harmonious and coordinated management of

the various resources without permanent impairment of the . . . quality

of the environment with consideration being given to the relative

values of the resources . . .'' (Id.).

Section 1781 of FLPMA states that the use of these desert resources

should be provided for in a multiple use and sustained yield management

plan (43 U.S.C. 1781(a)(4)). These resources specifically include

``certain rare and endangered species of wildlife, plants, and fishes .

. . [which] are seriously threatened by inadequate Federal management

authority, and pressures of increased use . . .'' (43 U.S.C.

1781(a)(3)). As a result, the Secretary of the Department of the

Interior is directed to prepare and implement a long-term plan for the

``management, use, development, and protection'' of the lands within

this Conservation Area (43 U.S.C. 1781(d)). This plan is to take into

account multiple use and sustained yield, and provide for resource use

and development, which is to include ``maintenance of environmental

quality, rights-of-way, and mineral development'' (Id.). So even though

FLPMA may contain language to protect the five plant species to a

certain degree through the maintenance of environmental quality, FLPMA

was written to provide for multiple use. Such use does not necessarily

elevate the needs of these species over other public land uses. Indeed,

regulations promulgated to implement certain provisions of FLPMA

provide for the approval of mining if the appropriate Federal official

has complied with the section 7 consultation provisions of the

Endangered Species Act (43 CFR 3809.1-6(a)(5)). However, the

protections afforded listed species pursuant to section 7 of the

Endangered Species Act are not required to be implemented unless

listing takes place. Therefore, listing affords another layer of

protection to these species.

Similar regulations have been promulgated for National Forest

System lands (36 CFR part 228) so that mining ``shall be conducted so

as to minimize adverse environmental impacts on National Forest System

surface resources'' (36 CFR 228.8). Although these regulations do not

specifically require compliance with section 7 of the Endangered

Species Act as a prerequisite to approval of a mining plan of

operations, the Act requires Service consultation for any action the

Federal action agency authorizes, funds, or carries out (16 U.S.C.

1536) that may affect a federally listed species. Therefore, Forest

Service approval of a mining plan of operations would require section 7

compliance, which would afford additional protection to listed plant

species.

The Forest Service has attempted to reduce impacts of mining within

carbonate plant habitat. As early as 1977, the Forest Service

recognized four of the plants (all but Oxytheca parishii var.

goodmaniana) as ``sensitive species;'' Oxytheca parishii var.

goodmaniana was added to its list of sensitive species in 1990. The

Forest Service has worked with the mining companies to minimize impacts

to the plants since at least 1987 (Forest Service, in litt., 1992). In

the Management Plan for the San Bernardino National Forest (Forest

Service 1988), the Forest Service recommended conserving at least two-

thirds of the existing populations for three of the taxa (Erigeron

parishii, Eriogonum ovalifolium var. vineum, and Astragalus albens) in

perpetuity by establishing refugia for conserving selected occurrences

of these five plants as part of a regional conservation plan. In

addition, all of the habitat for Lesquerella kingii ssp. bernardina was

recommended for protection. This would entail securing refugia sites

either by withdrawal from mineral entry or by transferring claim

rights. To date, the Forest Service has hosted several interagency

meetings to develop strategies to implement this forest management plan

direction by identifying criteria for refuge design and strategies for

establishing a minerals withdrawal. A draft habitat management guide

for the carbonate plants is expected to be released within several

years. However, approval and implementation of recommended actions may

not take place for several years subsequent to release of the guide.

In response to the proposal, Brown (in litt., 1992) has claimed

that the actual amount of limestone to be mined in the foreseeable

future (defined as 75 years) is only 2 percent of the existing surface

expression of limestone deposits in the San Bernardino Mountains. The

1872 mining law states that claimholders must have an actual intent to

mine. The Service, therefore, must assume that all claims are being

held with the intent to mine. One industry representative cited two

reasons why claimholders would not relinquish claims even if no future

mining were intended. First, it would prohibit a competing company from

mining the mineral resource. Secondly, the claims could be mined for

strategic minerals other than limestone. The 1872 mining law does not

include a mechanism for voluntary relinquishment of a claim or transfer

of a claim to a third party for the purposes of resource conservation

even if a claimholder wished to do so. Once it was proven that the

third party had no intent to mine, the claim could legally be seized by

other mining interests (Bill Tilden, Pfizer, Inc., pers. comm., 1992).

The surface management of public lands under U.S. mining laws (43

CFR part 3809) requires BLM to process applications to ``patent''

mining claims on all Federal lands. BLM has reported that since the

proposal to list the carbonate plants was published, it has received an

increase in patent applications submitted by industry claimholders with

claims occurring within the range of the five carbonate plants (Mike

Ford, geologist, formerly BLM, pers. comm., 1992). One industry

representative has indicated that changes in the 1872 mining law will

require that the cost of the required annual assessment work per 8-

hectare (20-acre) claim ($100) be paid as a fee directly to BLM, rather

than performed as on-the-ground assessment work. This may provide

additional incentive to claimholders to patent claims to avoid the

increase in out-of-pocket costs for the annual assessment work. An

increase in the number of claims being patented could remove these

lands from continued Federal jurisdiction. The elimination of Federal

jurisdiction becomes important regarding protection of plants because

of the reduced protection afforded by the Endangered Species Act for

plants on private lands.

E. Other natural or manmade factors affecting its continued

existence. Populations consisting of a small number of individuals

always face the possibility of stochastic extinction (i.e., extinction

due to random events, including fire, flood, drought, landslide,

disease, or predation). The total amount of annual precipitation, as

well as the timing of such precipitation, may be crucial for seedling

germination and subsequent establishment. A significant drop in the

size of Lesquerella kingii ssp. bernardina populations in the Bertha

Ridge area between 1980 and 1988 (from 25,000 to 15,000 individuals)

may be in part due to several years of drought conditions. Conversely,

the high amount of precipitation received during March 1992 may, in

part, account for the increased number of Astragalus albens individuals

observed during 1992 surveys compared to the number found in previous

surveys. Such fluctuations in population sizes should be expected, but

at the same time emphasize the need to maintain in situ seedbanks on

suitable habitat. Moreover, drought-stressed plants can become

vulnerable to additional damage from pathogens or insects. The risk of

stochastic extinction for A. albens and Oxytheca parishii var.

goodmaniana, which currently consist of fewer than 10,000 individuals

each, is considered high.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by these five species in determining to issue this

final rule. Based on this evaluation, the preferred action is to list

Eriogonum ovalifolium var. vineum, Astragalus albens, Lesquerella

kingii ssp. bernardina, and Oxytheca parishii var. goodmaniana as

endangered. Destruction of their habitat by activities associated with

limestone mining, sand and gravel mining, off-road vehicle and other

recreational use, and energy development projects, as well as their

vulnerability to stochastic events, exposes these four plant species to

the danger of extinction throughout all or a significant portion of

their ranges. These species thus fit the Act's definition of

endangered. While Erigeron parishii faces the same threats as the other

four species, it has the widest range of distribution; at least a few

populations within the range of the species occur at locations with

non-carbonate substrates, which are not currently under mining claim.

Therefore, the preferred action is to list Erigeron parishii as

threatened.

Critical Habitat

Section 4(a)(3) of the Act requires that, to the maximum extent

prudent and determinable, the Secretary designate critical habitat at

the time a species is determined to be endangered or threatened. The

Service finds that designation of critical habitat for Eriogonum

ovalifolium var. vineum, Astragalus albens, Lesquerella kingii ssp.

bernardina, Oxytheca parishii var. goodmaniana, and Erigeron parishii

is not presently prudent. The publication of critical habitat

descriptions and maps required for critical habitat designation would

increase the degree of threat to these plants from possible take or

vandalism, and could contribute to their decline. The listing of

species as either endangered or threatened publicizes the rarity of the

plants and can make these plants attractive to researchers, curiosity

seekers, or collectors of rare plants. All appropriate Federal agencies

and local planning agencies have been notified of the location of these

species and importance of protecting their habitat. Protection of these

species' habitat will be addressed through the recovery process and

potentially through the section 7 consultation process. Therefore, the

Service finds that designation of critical habitat for these plants is

not prudent at this time; such designation likely would increase the

degree of threat from vandalism, collecting, or other human activities.

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 practices. 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.

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)(2) requires Federal agencies to ensure that

activities they authorize, fund, or carry out are not likely to

jeopardize the continued existence of a listed 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.

Populations of all five plant species occur in large part on

Federal land. Erigeron parishii, Eriogonum ovalifolium var. vineum, and

Astragalus albens occur on land managed by the San Bernardino National

Forest and the California Desert District of BLM. Lesquerella kingii

ssp. bernardina and Oxytheca parishii var. goodmaniana occur primarily

on land managed by the San Bernardino National Forest. Federal

activities potentially impacting one or more of the five plants and

likely to trigger formal consultation under section 7 of the Act

include the approval of mining plans of operations; approval of mining

reclamation plans; construction of recreational facilities, such as

off-highway vehicle trails and the ski run; rights-of-way for various

activities including access to mining claims and energy development

corridors; and grazing allotments. The patenting of mining claims are

processed by BLM; however, legal opinions differ as to whether this

process can be considered a Federal activity subject to section 7 of

the Endangered Species Act. The Army Corps of Engineers (Corps) will

have permitting authority as described under section 404 of the Clean

Water Act for construction of a hydroelectric power plant and a sand

and gravel mining operation being proposed for the Cushenbury Springs

area. By regulation, nationwide or individual permits cannot be issued

where a federally listed endangered or threatened species would be

affected by a proposed project without first completing formal

consultation pursuant to section 7 of the Endangered Species Act. In

addition, construction of the hydroelectric power plant most likely

will require the approval of the Federal Energy Regulatory Commission

and thus require formal consultation.

The Act and its implementing regulations found at 50 CFR 17.61,

17.62, and 17.63 for endangered plants and 17.71 and 17.72 for

threatened plants set forth a series of general prohibitions and

exceptions that apply to all listed plants. With respect to the five

carbonate endemics from southern California, all trade prohibitions of

section 9(a)(2) of the Act, implemented by 50 CFR 17.61 and 17.71,

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 to remove and reduce to possession any such 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 listed plants 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. 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 and threatened plant species

under certain circumstances.

It is anticipated that few trade permits would ever be sought or

issued because the five plant species are not common in cultivation or

in the wild. Requests for copies of the regulations on plants and

inquiries regarding them may be addressed to the U.S. Fish and Wildlife

Service, Endangered Species Permits, 911 N.E. 11th Avenue, Portland,

Oregon 97232-4181 (telephone 503/231-6241, facsimile 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment, or Environmental Impact Statement, 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, as well as others,

is available upon request from the Ventura Field Office (see ADDRESSES

section).

Author

The primary author of this rule is Constance Rutherford, U.S. Fish

and Wildlife Service, Ventura Field Office, 2140 Eastman Avenue, Suite

100, Ventura, California 93003 (805/644-1766).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended 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 the plant families indicated, to the List of Endangered and

Threatened Plants:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

----------------------------------------------------------------------------------------------------------------

Species

------------------------------------------- Historic range Status When listed Critical Special

Scientific name Common name habitat rules

----------------------------------------------------------------------------------------------------------------

****** *

Asteraceae--Aster

family:

****** *

Erigeron Parish's daisy...... U.S.A. (CA)........ T 548 NA NA

parishii .

****** *

Brassicaceae--Mustar

d family:

****** *

Lesquerella San Bernardino U.S.A. (CA)........ E 548 NA NA

kingii ssp. Mountains

bernardina. bladderpod.

****** *

Fabaceae--Pea

family:

****** *

Astragalus Cushenbury milk- U.S.A. (CA)........ E 548 NA NA

albens . vetch.

****** *

Polygonaceae--Buckwh

eat family:

****** *

Eriogonum Cushenbury buckwheat U.S.A. (CA)........ E 548 NA NA

ovalifolium

var. vineum .

****** *

Oxytheca Cushenbury oxytheca. U.S.A. (CA)........ E 548 NA NA

parishii var.

goodmaniana .

****** *

----------------------------------------------------------------------------------------------------------------

Dated: August 3, 1994.

Mollie H. Beattie,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 94-20790 Filed 8-23-94; 8:45 am]

BILLING CODE 4310-55-P