Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for One Plant, Arctostaphylos pallida (Pallid Manzanita), From the Northern Diablo Range of California

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD35

Endangered and Threatened Wildlife and Plants; Determination of

Threatened Status for One Plant, Arctostaphylos pallida (Pallid

Manzanita), From the Northern Diablo Range of California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines threatened

status for Arctostaphylos pallida (pallid manzanita) pursuant to the

Endangered Species Act of 1973, as amended (Act). This plant species is

found only in the northern Diablo Range of California in Alameda and

Contra Costa Counties. The primary threats to the species are the

effects of fire suppression, and shading and competition from native

and alien plants. To a lesser extent, the species is threatened by

disease, herbicide spraying, hybridization, and the ongoing effects of

habitat loss and fragmentation. This rule implements the Federal

protection and recovery provisions afforded by the Act for this

species.

DATES: Effective May 22, 1998.

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 Field Office, 3310 El Camino,

Suite 130, Sacramento, CA 95821-6340.

FOR FURTHER INFORMATION CONTACT: Dwight Harvey, at the above address or

by telephone (916/979-2725).

SUPPLEMENTARY INFORMATION:

Background

Arctostaphylos pallida (pallid manzanita) is found only in the

northern Diablo Range of California. The Diablo Range is part of the

inner South Coast Range of California. The Diablo Range extends in a

northwest to southeast direction as a more or less continuous mountain

chain, 32 to 48 kilometers (km) (20 to 30 miles (mi)) wide, for

approximately 300 km (190 mi) from San Pablo Bay in central California

to Polonio Pass in northeast San Luis Obispo County. The altitude of

the Diablo Range varies from 600 to 1,280 meters (m) (2,000 to 4,200

feet (ft)) and is broken by four or five east to west passes. These

passes divide the Diablo

[[Page 19843]]

Range into several distinct units: Contra Costa Hills, Mt. Diablo, Mt.

Hamilton Range, Panoche Hills, San Carlos Range, and Estrella Hills

(Sharsmith 1982). Arctostaphylos pallida occurs in the Contra Costa

Hills section of the Diablo Range.

Portions of the Diablo Range are thought to have been surrounded by

marine embayments since the middle Miocene era, when modern flora and

fauna were developing (Sharsmith 1982). Much of the surface of the

Diablo Range is composed of rock in the Franciscan series. The soils

formed from Franciscan rock are believed to partially control the

present distribution of plant species in the Diablo Range (Sharsmith

1982). Arctostaphylos pallida seems to prefer to grow in limited

locations of the East Bay Hills on north and east facing slopes where

bare, siliceous, mesic soils with low fertility exist (Amme and Havlik

1987a).

Alice Eastwood described Arctostaphylos pallida in 1933 from

specimens collected in 1902 by W.W. Carruth in the ``East Oakland

Hills,'' an area believed to be Huckleberry Ridge in Alameda and Contra

Costa Counties, California. A. pallida is a member of the A.

andersonii complex, a group of Arctostaphylos species found in central

coastal California. Though McMinn reduced the taxon to a variety of A.

andersonii in 1939, Wells (1993) treated it as A. pallida.

Arctostaphylos pallida is an upright, non-burl-forming shrub in the

heath family (Ericaceae). Arctostaphylos pallida grows from 2 to 4 m

(6.5 to 13.0 ft) high or more with rough, gray or reddish bark. The

twigs are bristly. The ovate to triangular leaves are bristly, strongly

overlapping, and clasping; they are 2.5 to 4.5 centimeters (cm) (1.0 to

1.8 inches (in.)) long and 2 to 3 cm (0.8 to 1.2 in.) wide. The dense,

white flowers are urn-shaped and 6 to 7 millimeters (mm) (0.2 to 0.3

in.) long. The flowering period is from December to March.

The overall current range of Arctostaphylos pallida is similar to

that known at the time the species was described in 1933. The extant

populations of this species are thought to be smaller, however, due to

habitat destruction and fragmentation by urbanization (B. Olson, in

litt. 1994). Although A. pallida occupies most of its historic range,

local habitat destruction due to residential development has resulted

in losses of up to 50 percent in some locations along Manzanita Way in

the Oakland Hills (B. Olson, in litt. 1994). Only two large populations

are known, one at Huckleberry Ridge, the presumed type locality in

Alameda and Contra Costa Counties, and the other at Sobrante Ridge in

Contra Costa County. The remaining occurrences, all located in Alameda

or Contra Costa Counties, are all small, and most have fewer than ten

individuals. Of the 13 documented occurrences of A. pallida, six are

considered to be declining, while the trend of the remaining seven is

uncertain or unknown (CNDDB 1997). One of the latter populations has

fewer than 50 plants and was planted outside of its native habitat,

where its long-term survival is not likely (CNDDB 1997). Two other

occurrences are considered to have been planted (CNDDB 1997).

The species is found from 200 to 445 m (656 to 1,460 ft) in

elevation, primarily on thin soils composed of chert and shale (Amme

and Havlik 1987a). Generally, the plants are found in Arctostaphylos

dominated chaparral that is often surrounded by oak woodlands and

coastal shrub (Amme et al. 1986). The two largest occurrences occupy a

total area of 12 hectares (ha) (29 acres (ac)) (Amme et al. 1986).

These two populations are found in maritime chaparral, a habitat with

mesic environmental conditions due to a maritime influence. The smaller

of the two, at Sobrante Ridge, has the least human impact of all known

populations. It had an estimated 1,700 to 2,000 plants in the mid-1980s

and the status and vigor of the plants appeared good (Amme et al. 1986,

Amme and Hovik 1987). The population remains in good shape and,

although some management is needed, the potential for long term

viability is high (David Amme, pers. comm. 1997, Neil Havlik, pers.

comm. 1997). The Sobrante Ridge site has more open space than other

occurrences and recruitment of Arctostaphylos pallida is taking place

in areas with bare and exposed gravel (Steve Edwards, Tilden Botanic

Garden, pers. comm. 1997).

The largest known population of Arctostaphylos pallida occurs at

Huckleberry Ridge, although an estimated 50 percent of the original

habitat at this site has either been developed for housing or is

privately owned. Development eliminated a large number of A. pallida

plants and fragmented the remaining habitat at this site (Amme and

Havlik 1987b, B. Olson, in litt. 1994). An estimated 2,400 to 2,700

plants were present in this population during the mid 1980s (Amme et

al. 1986). A fungal infection during the early 1980s resulted in branch

and stem dieback in over 50 percent of the plants at Huckleberry Ridge,

and the condition of the population was described as poor (Amme and

Havlik 1987c). Disease is discussed in further detail under factor C in

the ``Summary of Factors Affecting the Species'' section below.

Many of the smaller populations occur in coastal scrub (Brad Olson,

California Native Plant Society, in litt. 1994). These occurrences of

Arctostaphylos pallida are all small with few individuals and their

long term viability is questionable. The largest is estimated to have

65 individuals, some of which were planted (CNDDB 1997). Several other

occurrences were also planted, and many small populations are located

along roadcuts where plants appear to have established naturally after

the soil was disturbed (Amme et al. 1986). Some of these occurrences

have only one or several individuals and are in poor condition (CNDDB

1997). Many of these smaller populations are shaded by planted and

naturalized Pinus radiata and Cupressus spp. (Amme and Havlik 1987a).

Shading and competition are discussed in more detail under factor E

below in the ``Summary of Factors Affecting the Species'' section

below.

More than half of the remaining habitat for the species, including

both large populations and numerous smaller populations, occur on lands

owned by the East Bay Regional Park District (EBRPD)(Brad Olson, EBRPD,

in litt. 1997). Other small populations occur on lands owned by the

East Bay Municipal Utility District (EBMUD), the City of Oakland,

Pacific Gas and Electric power line easements, or on other privately

owned lands (B. Olson, in litt. 1994, Robert Nuzum, EBMUD, in litt.

1997). The primary threats to Arctostaphylos pallida are the effects of

fire suppression, and shading and competition from native and alien

plants. To a lesser extent, the species is threatened by disease,

herbicide spraying, hybridization, and the ongoing effects of habitat

loss and fragmentation.

Previous Federal Action

Federal government actions on the species began as a result of

section 12 of the Endangered Species Act of 1973, as amended (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. This document included Arctostaphylos pallida (as

Arctostaphylos andersonii var. pallida) as endangered. The Service

published a notice in the July 1, 1975, Federal Register (40 FR 27823)

of its acceptance of the report of the Smithsonian Institution as a

petition within the

[[Page 19844]]

context of section 4(c)(2) (petition provisions are now found in

section 4(b)(3) of the Act) and its intention thereby to review the

status of the plant taxa named therein. The above taxon was included in

the July 1, 1975, notice. On June 16, 1976, the Service published a

proposal in the Federal Register (42 FR 24523) to determine

approximately 1,700 vascular plant species to be endangered species

pursuant to section 4 of the Act. The list of 1,700 plant taxa was

assembled on the basis of comments and data received by the Smithsonian

Institution and the Service in response to House Document No. 94-51 and

the July 1, 1975, Federal Register publication. Arctostaphylos pallida

was included in the June 16, 1976, publication.

General comments received in relation to the 1976 proposal were

summarized in the April 26, 1978, Federal Register (43 FR 17909). The

Endangered Species Act Amendments of 1978 required that all existing

proposals over 2 years old be withdrawn. A 1-year grace period was

given to those proposals already more than 2 years old. In a December

10, 1979, notice (44 FR 70796), the Service withdrew the June 6, 1976,

proposal that had not been made final, along with four other proposals

that had expired.

The Service published an updated Notice of Review for plants on

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

pallida as a Category 1 candidate species for Federal listing. Category

1 were those taxa for which the Service had on file sufficient

information to support issuance of proposed listing rules. On November

28, 1983, the Service published a supplement to the Notice of Review

(48 FR 53640). This supplement changed this taxon from Category 1 to

Category 2. Category 2 species were those taxa for which the Service

had information indicating that listing may be warranted but for which

it lacked sufficient information on status and threats to support

issuance of listing rules. The plant notice was revised on September

27, 1985 (50 FR 39526). Arctostaphylos pallida was again included as a

Category 2 candidate species. In the revision of the plant notice

published on February 21, 1990 (55 FR 6184), A. pallida was elevated to

a Category 1 candidate species. In the revision of the plant notice

published on September 30, 1993 (58 FR 51144), this category remained

unchanged.

Section 4(b)(3)(B) of the Act requires the Secretary to make

findings on petitions within 12 months of their receipt. Section

2(b)(1) of the 1982 amendments further requires that all petitions

pending on October 13, 1982, be treated as having been newly submitted

on that date. This was the case for Arctostaphylos pallida because the

1975 Smithsonian report had been accepted as a petition. On October 13,

1983, the Service found that the petitioned listing of this 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 annually, pursuant to section 4(b)(3)(C)(i)

of the Act. The finding was reviewed annually from October of 1983

through 1993. Publication of the proposed rule to list A. pallida as a

threatened species on August 2, 1995 (60 FR 39309) constituted the

final warranted finding for this species.

The processing of this final rule conforms with the Service's

listing priority guidance published in the Federal Register on December

5, 1996 (61 FR 64475) and the extension of the guidance published in

the Federal Register on October 23, 1997 (62 FR 55268). The guidance

clarifies the order in which the Service will process listing actions

following two related events: (1) The lifting, on April 26, 1996, of

the moratorium on final listings imposed on April 10, 1995 (Pub. L.

104-6), and (2) the restoration of funding for listing through passage

of Omnibus Budget Reconciliation law on April 26, 1996, following

severe funding constraints imposed by a number of continuing

resolutions between November 1995 and April 1996. The guidance calls

for giving highest priority to handling emergency situations (Tier 1)

and second highest priority (Tier 2) to resolving the listing status of

outstanding proposed listings. A lower priority is assigned to

resolving the conservation status of candidate species and processing

administrative findings on petitions to add species to the lists or

reclassify species from threatened to endangered status (Tier 3). The

lowest priority actions are in Tier 4, a category which includes

processing critical habitat determinations, delistings, or other types

of reclassifications. Processing of this final rule is a Tier 2 action.

Summary of Comments and Recommendations

In the August 2, 1995, proposed rule (60 FR 39309) and associated

notifications, all interested parties were requested to submit factual

reports or information that might contribute to the development of a

final rule. Appropriate State and Federal agencies and representatives,

City and County governments, scientific organizations, and other

interested parties were contacted and requested to comment. Newspaper

notices were published in the Daily Review (Hayward, California), the

Ledger Dispatch and the Brentwood News (Antioch, California), and the

Oakland Tribune on August 9, 1995, which invited public comment. No

public comments or requests were received during this public comment

period. Work on the final rule to list Arctostaphylos pallida as a

threatened species was suspended due to the moratorium. After the

moratorium was lifted in April 1996, the public comment period was

reopened on February 27, 1997, for 30 days to update the proposed

listing (62 FR 8417). In accordance with Service policy (59 FR 34270),

four independent specialists were solicited to review pertinent

scientific or commercial data and assumptions relative to the proposed

rule. No response was received from the four independent specialists.

In a letter dated March 25, 1997, Mr. Brad Olsen of the East Bay

Regional Park District requested that the comment period be reopened an

additional time because all affected and interested parties and

agencies may not have had sufficient time to convey important

information pertaining to all the known Arctostaphylos pallida

populations. The notice opening the additional comment period was

published in the Federal Register (62 FR 24388) on May 5, 1997. The

public comment period closed on June 4, 1997. Comments were solicited

from an additional eight experts pertaining to--(1) The known or

potential effects of fire suppression and general fire management

practices on the pallid manzanita and its habitat, (2) other

biological, commercial, or other relevant data on any threats (or the

lack thereof) to the species; and (3) the size, number, or distribution

of populations of the species.

During the last two comment periods, the Service received a total

of eight comments (letters and personal phone conversations) from seven

people. One commenter supported the listing and the other six were

neutral. Several commenters provided additional information that has

been incorporated into this rule. No commenters were opposed to the

rule.

Summary of Factors Affecting the Species

After a thorough review and consideration of the best available

scientific and commercial information,

[[Page 19845]]

the Service has determined that Arctostaphylos pallida should be

classified as a threatened species. Section 4 of the Endangered Species

Act and regulations (50 CFR part 424) promulgated to implement the

listing provisions of the Act set forth the procedures to be followed

for adding species to the list of threatened and endangered species. A

species may be determined to be endangered or threatened due to one or

more of the five factors described in section 4(a)(1). These factors

and their application to Arctostaphylos pallida Eastw. (pallid

manzanita) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

In its proposal to list the pallid manzanita (60 FR 39311), the

Service identified residential development as a threat. However, the

Service no longer considers it to be a significant threat. Although

residential development eliminated a large number of Arctostaphylos

pallida plants on Huckleberry Ridge, further direct habitat destruction

is not anticipated. Up to 50 percent of the original habitat of A.

pallida on Huckleberry Ridge has been developed for housing or is

privately owned. However, most of the remaining population at

Huckleberry Ridge, as well as the other large A. pallida population on

Sobrante Ridge, is on lands now owned by the East Bay Regional Park

District and is protected from further direct habitat destruction

resulting from urbanization or land use conversion. The smaller A.

pallida populations occur either on other park lands or on privately

owned lands that have already been developed. The ongoing effects of

prior development are discussed in detail under factor E.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Although this species is not known to be sought after by

collectors, Arctostaphylos pallida is commercially cultivated (Wells

1993). Many members of this genus are considered desirable to use for

interior decoration because of their attractive bark, leaves, and hard

wood. In addition, they are often used in residential landscapes and

local horticulturalists sometimes collect the seeds for cultivation

(Keeley and Keeley 1992, Smith 1988). Overutilization is not currently

known to be a threat to this species, but unrestricted collecting for

scientific or horticultural purposes or excessive trampling of

seedlings by individuals interested in seeing rare plants could result

from increased publicity as a result of listing this species. Possible

unauthorized cutting of A. pallida was evident at the Sobrante Ridge

Regional Preserve population where public access trails and

photographic displays of this species are established throughout

manzanita habitat (Dwight Harvey and Elizabeth Warne, USFWS, in litt.

1997).

C. Disease or Predation

Approximately 50 percent of the Huckleberry Ridge population of

Arctostaphylos pallida was affected in the 1980s by a fungal infection

that attacked the roots of the plants, causing branch and stem dieback

(Amme and Havlik 1987a, CDFG 1987). The Huckleberry Ridge population

remains in poor condition (Amme and Havlik 1987c, CNDDB 1997). If the

wet, cold weather conditions that induced the fungal infection are

repeated, another infection could occur, resulting in reduced vigor of

the population (D. Amme, pers. comm. 1994).

Botryosphaeia fungal infections can cause changes in leaf

pigmentation thus affecting the plant's photosynthetic capabilities,

destroy branches, and lead to the eventual death of whole plants (Smith

1985, Amme and Havlik 1987, Wood and Parker 1988). Pale chlorotic

leaves, possibly due to Botryosphaeia fungi, were evident at the East

Ridge population on EBMUD land, where 14 mature A. pallida plants grow

under a canopy dominated by Umbellularia californica, Arbutus

menziesii, and introduced Pinus radiata (D. Harvey and E. Warne, in

litt. 1997, R. Nuzum, in litt. 1997). In addition, urban expansion has

resulted in the planting and subsequent spread of many exotic and

native species of trees and shrubs (Amme and Havlik 1987a). Many of

these species grow faster than Arctostaphylos pallida and, in some

locations, completely shade them. Excessive shade and overcrowding can

cause a slow decline in the plant's overall health and vigor that can

lead to the spread of Botryosphaeia fungi and an unknown root fungus

(Smith 1985, Amme and Havlik 1987a).

D. The Inadequacy of Existing Regulatory Mechanisms

The State of California Fish and Game Commission has listed

Arctostaphylos pallida as an endangered species under the California

Endangered Species Act (chapter 1.5 Sec. 2050 et seq. of the California

Fish and Game Code, and title 14 California Code of Regulations

Sec. 670.2). The State of California requires that individuals obtain

authorization from the California Department of Fish and Game (CDFG) to

possess or ``take'' a listed species. Although the take of State-listed

plants is prohibited by the California Native Plant Protection Act and

the California Endangered Species Act (California Fish & Game Code,

chapter 10, division 2, Sec. 1908 and California Fish & Game Code,

chapter 1.5, division 3, Sec. 2080), State law does not prohibit the

taking of such plants via habitat modification or land use changes by

the owner. After CDFG notifies a landowner that a State-listed plant

grows on his or her property, the California Native Plant Protection

Act requires only that the land owner notify the agency ``at least ten

days in advance of changing the land use to allow salvage of such a

plant'' (California Fish and Game Code, chapter 10, Sec. 1900 et seq.).

The California Environmental Quality Act (CEQA) 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 finding of significance if a

project has the potential to ``reduce the number or restrict the range

of a rare or endangered plant or animal.'' Species that are eligible

for listing as rare, threatened, or endangered but are not so listed

are given the same protection as those species that are officially

listed with the State or Federal governments. Once significant effects

are identified, the lead agency has the option of requiring mitigation

for effects through changes in the project or to decide that overriding

considerations make mitigation infeasible. In the latter case, projects

may be approved that cause significant environmental damage, such as

destruction of listed or rare species. Protection of listed species

through CEQA is, therefore, dependent upon the discretion of the agency

involved. In addition, CEQA guidelines recently have been revised in

ways that, if made final, may weaken protections for threatened,

endangered, and other sensitive species.

California Department of Fish and Game (CDFG) and EBRPD jointly

developed the Alameda Manzanita Management Plan in 1987. Since then,

due to limited funding, and conflicting fire management policies, this

plan has only partially been carried out. The mission of the plan was

to determine and implement management activities that would improve the

condition of the species and help in its recovery (Amme

[[Page 19846]]

and Havlik 1987b). EBRPD has reduced the amount of flammable dead plant

material in the Huckleberry Ridge population (Ed Leong, EBRPD, pers.

comm. 1994, in litt. 1997). The reduction in plant litter, and the

pruning of some competing exotics, has helped to stimulate germination

and growth of the species at Sobrante Ridge, Huckleberry Ridge and two

other lesser locations (D. Amme, pers. comm. 1994, N. Havlik, pers.

comm. 1997). The potential effects of fire management policies on A.

pallida are further discussed under factor E below.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

Due to past and present fire suppression policies and inactive or

ineffective fire management plans, the long-term viability of

Arctostaphylos pallida is in doubt. In the 1800s, before the expansion

of urban areas into the East Bay Hills, major natural or human-caused

fires periodically burned through manzanita habitat mainly from east to

west driven by dry ``Diablo Winds'' during the late summer and fall

(EBRPD 1996, R. Nuzum, in litt. 1997). These fires rarely threatened

the lower lying communities of Berkeley and Oakland. Fire management

practice from about 1900 to 1940 changed from unrestricted burning to

permitted burning only (Sampson 1944, J. Dunne et al. 1991). The

California Department of Forestry and Fire Protection (CDFFP) currently

has a policy of immediate suppression of all wildfires (B. Harrington,

CDFFP, pers. comm. 1996).

Due to the expansion of homes up to the crest of the East Bay Hills

during the 1940s and 1950s, human-caused fires, such as the Oakland

Hills fire of 1991, are now a major threat to human safety (EBRPD

1996). Over the last 10 years, urban development has expanded to

approach the two largest populations of Arctostaphylos pallida at

Sobrante and Huckleberry Ridges. At Sobrante Ridge, homes come within

30 m (100 ft) of the population and at Huckleberry Ridge some homes

along Manzanita Drive have A. pallida within their landscaping (Amme

and Havlik 1987a, D. Harvey and E. Warne, in litt. 1997).

Fire suppression in the East Bay Hills, in combination with

increased browsing of tree and shrub seedlings and acorns by deer and

livestock, has led to structural and compositional change in habitats

within the range of Arctostaphylos pallida. Open-canopied oak woodlands

maintained historically by frequent fire have been converted, in the

absence of fire, into closed-canopied woodland-forests dominated by

Umbellularia californica (California bay), other native trees, or alien

conifer or Eucalyptus forests (McBride 1974, B. Olson, in litt. 1994

Safford 1995). Because of their denser canopies, these forests and

woodlands create a microclimate unsuitable for healthy A. pallida

plants. For example, the small population of A. pallida at upper East

Ridge persists in the understory of a closed-canopy forest of

California bay and Arbutus menziesii (madrone) (R. Nuzum, in litt.

1997). No signs of recent fire are present at this site (D. Harvey and

E. Warne, in litt. 1997 as per J. Dunne) and it is estimated that the

site may not have burned in more than 100 years (R. Nuzum, in litt.

1997). Most of the 14 adult pallid manzanita in this population are

unhealthy and show signs of fungal infections and bark striping. Bark

striping may be a sign that excessive canopy shading is affecting A.

pallida. Bark striping was first thought to have a pathological origin

but is now believed to be a stress response by some species of

manzanita to the absence of fire (Davis 1973 in Hanes 1995). On shaded

sites, such as upper East Ridge, the ability of the shade intolerant A.

pallida plants to maintain live tissue is thought to lessen, resulting

in the partial shutdown of growing cells and tissue sloughing that

manifests as bark striping (Davis 1973 in Hanes 1995, Amme and Havlik

1987a). At the Huckleberry Ridge population, A. pallida plants are

generally wider than they are tall, a consequence of growing away from

the overstory canopy to reach light, and all of the A. pallida plants

displayed bark striping (Amme and Havlik 1987a).

Fire suppression can also alter the reproductive dynamics of

Arctostaphylos pallida stands. Based on differing survival responses of

chaparral plants to fire, manzanitas can be divided into burl-forming

and non-burl-forming (Sampson 1944, Roof 1976, Keeley and Keeley 1977).

Burls lay at the base of the main stem of the plant and contain stored

nutrients and shoot-forming embryonic tissues. The burl-forming types

are capable of surviving fire by resprouting from these burls. The

second group does not form burls. Instead, stand persistence is based

on the establishment and maintenance of a seed bank in the soil. This

seed bank may lay dormant within the soil for as much as 100 years or

more (Keeley 1987, 1991). When a fire passes through an area, the seeds

are scarified and thus become capable of germinating (Amme and Havlik

1987a). However, fire is not the only way seeds can be scarified.

Mechanical disturbances, such as crushing, can also crack the seed coat

and enable the seeds to germinate (S. Edwards, pers. comm. 1997). Both

types of manzanita can also regenerate by layering, a method that does

not require fire. Branches sprout roots at points at which they are

covered by soil and leaf litter. This produces a clone of the original

plant (Amme and Havlik 1987b). Of the three methods of regeneration,

only seed reproduction results in genetic recombination and it is,

therefore, important to the maintenance of genetic diversity.

Stand regeneration in Arctostaphylos pallida is based primarily on

seed reproduction. At the Sobrante Ridge population, A. pallida is

closely associated with open stands of Quercus chrysolepis (canyon live

oak) and Q. wislizenii var. fructescens (interior live oak) and

recruitment of both pallid manzanita and oaks is occurring on bare and

exposed gravel (Amme et al. 1986, S. Edwards, pers. comm. 1997). The

effects of fire are evident at this site and fire may have occurred 20

to 30 years ago (N. Havlik, pers. comm. 1997).

In contrast, the effects of fire are not evident at the Huckleberry

Ridge population and fire may have not occurred there for 70 years or

longer (R. Nuzum, in litt. 1997, D. Harvey and E. Warne, in litt.

1997). The Arctostaphylos pallida population is unhealthy due to the

negative effects of a dense California bay-madrone canopy and

reproduction is poor (N. Havlik, pers. comm. 1997, R. Nuzum, in litt.

1997, S. Edwards, pers. comm. 1997, D. Harvey and E. Warne, in litt.

1997). In a 1993 fuel management and habitat improvement experiment at

the Huckleberry Ridge site, a small area overgrown with a dense stand

of A. pallida was cleared, and the cut vegetation piled and burned.

Seedlings of A. pallida were present the following year. Hand pulling

of the invasive alien, Genista monspessulana (French broom), was

necessary during 1994 and 1995. During a site visit in March of 1997,

40 to 50 A. pallida were present. Most were 10-15 cm (4-6 in) tall,

vigorous, and well-branched. The seedlings were found on the barer soil

areas. In addition to continued invasion by French broom, native

Baccharis pilularis (coyote brush) had begun to invade the site (E.

Leong, pers. comm. 1997) .

The importance of fire in relation to this manzanita's reproductive

strategy is uncertain, however, since seed reproduction can also occur

as a result of site soil disturbance. Evidence exists that mechanical

scarification, such as crushing, stimulates germination in several

manzanita species, including A. pallida (Keeley 1987, Keeley 1991, S.

Edwards, pers. comm. 1997). New

[[Page 19847]]

seedlings of A. pallida have appeared in areas where mechanical

scarification had recently taken place including exposed gravel

clearings and fire breaks at the Sobrante Ridge (S. Edwards, pers.

comm. 1997, N. Havlik, pers. comm. 1997), at several road cuts along

Skyline Boulevard (D. Amme, pers. comm. 1997), and at Huckleberry Ridge

where grading and removal of plants has occurred for residential

development (N. Havlik, pers. comm. 1997).

However, fire is thought to have been the primary historical

process by which seed regeneration was initiated and it has other

valuable effects beyond seed scarification. The accumulated leaf and

bark litter, fallen fruits, and roots of Arctostaphylos species have a

self-inhibitory effect on seed germination (Amme and Havlik 1987b).

Fire is believed to remove these toxic materials and promote

germination of Arctostaphylos and other herbs and shrubs (Amme et al.

1986). Fire also recycles nutrients in the soil (Amme and Havlik

1987b). The excessive accumulation of dead leaf and bark material also

results in the retention of soil moisture. Higher soil moisture levels

allows fires to conduct heat through the soil more effectively; this

has the potential to destroy the existing Arctostaphylos pallida seed

bank. (Wood and Parker 1988).

The fire management policy of the CDFFP has superseded EBRPD fire

management policy on park lands (J. Di Donato, EBRPD, pers. comm.

1996). However, fire management can be modified in specific areas for

listed species (B. Harrington, pers. comm. 1996). On EBRPD and EBMUD

lands, where the majority of Arctostaphylos pallida populations occur,

A. pallida habitat has been managed by fire suppression and brush

removal (B. Olson, in litt. 1994, J. Di Donato, pers. comm. 1996, B.

Harrington, pers. comm. 1996). Mechanical removal of exotic plants has

been the primary method used to improve growing conditions mostly for

isolated individual plants (Amme and Havlik 1987). Due to the continued

expansion of urbanization adjacent to A. pallida habitat, and the

catastrophic Oakland Hills fire of 1991, mechanical removal of highly

flammable vegetation remains the predominant method used to reduce the

fuel load in A. pallida chaparral habitat. A fire management plan that

includes the possibility of prescribed burns to address the needs of A.

pallida for germination and seedling establishment is currently being

developed by the EBRPD in cooperation with CDFG and CDFFP (EBRPD 1996,

J. Di Donato, in litt. 1996).

The genetic integrity of Arctostaphylos pallida is threatened by

hybridization with other species of Arctostaphylos introduced into the

vicinity of A. pallida populations (D. Amme, pers. comm. 1994). At

least three other species of Arctostaphylos have been used for

landscaping on private lands along Manzanita Way, a road that borders

the Huckleberry Ridge Preserve. Hybrids between a common associate of

A. pallida, A. tomentosa ssp. crustacea (brittle leaf manzanita), are

known to occur in two separate populations (Amme et al. 1986, D. Harvey

and E. Warne, in litt. 1997 as per J. Dunne). Hybrids have also been

observed between A. pallida and A. glauca (bigberry manzanita) in

Oakland parks (D. Amme, pers. comm. 1997 as per S. Edwards).

Arctostaphylos pallida closely resembles A. pajaroensis (Pajaro

manzanita), a species native to the Pajaro River area. Hybrids may be

occurring between these two species in areas where residents have

planted A. pajaroensis along Huckleberry Ridge (D. Amme, pers. comm.

1997). Hybridization with any of these taxa could result in a hybrid

manzanita swarm replacing pure A. pallida (Amme and Havlik 1987b, Amme

et al. 1986).

Herbicides have been used to eradicate Eucalyptus associated with

Arctostaphylos pallida in many areas of EBRPD lands in the Oakland

Hills. The exact effect herbicide spraying has on Arctostaphylos

pallida has not been studied, however, roadside spraying has had

negative effects on regeneration of A. pallida along Skyline Boulevard

(Amme and Havlik 1987a).

Urban development in the East Bay Hills has fragmented the natural

habitat of Arctostaphylos pallida. Splitting the habitat into smaller,

more isolated units can alter the physical environment by changing the

amount of incoming solar radiation, water, wind, or nutrients for the

remnant vegetation (Saunders et al. 1991). In addition, a higher

proportion of these fragmented natural areas are subject to external

factors (e.g., invasion of nonnative plants, foot traffic, and

increased erosion) that disrupt natural ecosystem processes (B. Olson,

in litt. 1994).

Residential development at Huckleberry Ridge has contributed to the

introduction of exotic landscape and weedy plant species that compete

with the remnant population (Amme and Havlik 1987b). Small populations,

in particular, are threatened by shading from planted Eucalyptus spp.,

Pinus radiata, and Cupressus spp. (cypresses), and by competition with

other aggressive alien plant species including French broom, Vinca

major (periwinkle), and Senecio mikanioides (German ivy) (Amme et al.

1986, B. Olson, in litt. 1994, N. Havlik, pers. comm. 1997). Eventually

the taller growing species will block necessary light to the few

scattered A. pallida resulting in unhealthy, dying and diseased plants

as demonstrated at some areas of the Huckleberry Ridge and East Ridge

populations (R. Nuzum, in litt. 1997, N. Havlik, pers. comm. 1997, E.

Leong, in litt. 1997). In 1985 several large bay trees were cut at the

base to improve light conditions for some A. pallida. As a result, many

A. pallida responded with new growth (N. Havlik, pers. comm. 1997).

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by Arctostaphylos pallida in determining to make

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

list A. pallida as threatened. This species is not now in immediate

danger of extinction throughout all or a significant portion of its

range. A. pallida exists at two large and eleven small occurrences. The

majority of its habitat is on EBRPD property. The two largest

occurrences of A. pallida are protected from further direct habitat

destruction resulting from urbanization or land use conversion.

However, all occurrences of A. pallida remain threatened by

compositional and structural changes due to fire suppression that

result in shading and competition from native and alien plant species,

disease, the ongoing effects of habitat fragmentation resulting from

past urbanization, and chance events due to the small size of the few

remaining populations. Some populations are also threatened by

hybridization, and herbicide spraying. Furthermore, the existing

regulatory mechanisms do not provide A. pallida adequate protection

from these threats. Arctostaphylos pallida, therefore, fits the

definition of a threatened species. For the reasons discussed below,

critical habitat has not been designated.

Critical Habitat

Critical habitat is defined in section 3 of the Act as (i) the

specific areas within the geographical area occupied by a species, at

the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

consideration or protection, and (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for conservation of the

species.

[[Page 19848]]

``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.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

a species is determined to be endangered or threatened. Critical

habitat is not determinable when one or both of the following

situations exist--(1) Information sufficient to perform required

analyses of the impacts of the designation is lacking, or (2) the

biological needs of the species are not sufficiently well known to

permit identification of an area as critical habitat (50 CFR

424.12(a)(2)). Service regulations (50 CFR 424.12(a)(1)) state that

designation of critical habitat is not prudent when one or both of the

following situations exist--(1) The species is threatened by taking or

other human activity, and identification of critical habitat can be

expected to increase the degree of threat to the species, or (2) such

designation of critical habitat would not be beneficial to the species.

Critical habitat designation for this species is not prudent due to

lack of benefit. Critical habitat only applies to Federal actions on

Federal lands or federally-permitted actions on private lands. All

known populations occur on non-Federal land, and no Federal lands are

known to occur within the historical range of the species. No Federal

actions, authorizations, or licensing currently occurs, or is likely to

occur, on lands where the species occurs. Therefore, designation of

critical habitat is not likely to benefit A. pallida.

Moreover, such designation could increase the degree of threat to

the species. The publication of precise maps and descriptions of

critical habitat in the Federal Register would make this plant

vulnerable to incidents of vandalism or collection and, therefore,

could contribute to the decline of the species. All of the 13

occurrences of A. pallida are located near or adjacent to residential

areas and public roads where they are easily accessible. A. pallida is

commercially cultivated (Wells 1993). Many members of this genus,

including numerous San Francisco Bay area taxa, are considered

desirable for interior decoration and landscape plantings and are

collected for cultivation for these purposes (Roof 1976, Smith 1985,

1988). The desirability and accessibility of the species, therefore,

could make the plants subject to collection if their precise location

was publicized. Most of the populations have so few individuals that

even limited collection could contribute significantly to their

decline. Designation of critical habitat for A. pallida could,

therefore, interfere with recovery efforts for the species.

The Service finds, therefore, that the designation of critical

habitat for Arctostaphylos pallida is not prudent at this time, because

such designation would likely provide no conservation benefit beyond

that the species would receive by virtue of its designation as a

threatened species. This finding is based on the fact that the species

does not occur on Federal lands, nor does it occur on non-Federal lands

where there is likely to be any Federal agency involvement. Moreover,

designation of critical habitat would facilitate trespassing and

increased collection or damage to the species or its habitat, and

thereby interfere with recovery efforts. Any minor, unforeseen benefits

that might derive from designation of critical habitat would be

outweighed by the increased threat to the species that would result

from such designation.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the State and requires that recovery plans be

developed 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 the

Service on any action that is likely to jeopardize the continued

existence of a proposed species or result in destruction or adverse

modification of proposed critical habitat. If a species is listed

subsequently, section 7(a)(2) requires Federal agencies to ensure that

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

jeopardize the continued existence of such a species or to destroy or

adversely modify its critical habitat. If a Federal action may affect a

listed species or its critical habitat, the responsible Federal agency

must enter into consultation with the Service. None of the populations

of Arctostaphylos pallida occur on Federal lands and no Federal actions

have been identified that are likely to occur on non-Federal lands with

populations of the species.

Some populations occur on non-Federal lands protected from

development. EBRPD owns the sites of both major populations of A.

pallida. The EBRPD and CDFG jointly developed the Alameda Manzanita

Management Plan in 1987. Although this plan was not adopted by Alameda

or Contra Costa County governments, portions of the plan are in use by

the EBRPD (D. Amme, pers. comm. 1994, E. Leong, pers. comm. 1994, in

litt 1997). A specific management plan does not exist for the small

population on EBMUD land at upper East Ridge. The Service has not

pursued any conservation agreements on public or private land regarding

this species.

Listing this plant species necessitates the development of a

recovery plan. Such a plan would bring together both State and Federal

efforts for conservation of the plant. The plan would establish a

framework for agencies to coordinate activities and cooperate with each

other in conservation efforts. The plan would set recovery priorities

and estimate costs of various tasks necessary to accomplish them. It

also would describe site-specific management actions necessary to

achieve conservation and survival of the plant species. Additionally,

pursuant to section 6 of the Act, the Service would be able to grant

funds to the State for management actions promoting the protection and

recovery of the species.

The Act and its implementing regulations set forth a series of

general prohibitions and exceptions that apply to all threatened

species. All prohibitions of section 9(a)(2) of the Act, implemented by

50 CFR 17.71, apply. These prohibitions, in part, make it illegal for

any person subject to the jurisdiction of the 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 the species to possession from areas

under Federal jurisdiction. In addition, for plants listed as

endangered, the Act prohibits the malicious damage or destruction on

areas under Federal jurisdiction and the

[[Page 19849]]

removal, cutting, digging up, or damaging or destroying of such plants

in knowing violation of any State law or regulation, including State

criminal trespass law. Section 4(d) of the Act allows for the provision

of such protection to threatened species through regulation. This

protection may apply to this species in the future if regulations are

promulgated. Seeds from cultivated specimens of threatened plants are

exempt from these prohibitions provided that their containers are

marked ``Of Cultivated Origin.'' Certain exceptions to the prohibitions

apply to agents of the Service and State conservation agencies.

The Act and 50 CFR 17.72 also provide for the issuance of permits

to carry out otherwise prohibited activities involving threatened

plants under certain circumstances. Such permits are available for

scientific purposes and to enhance the propagation or survival of the

species. For threatened plants, permits are also available for

botanical or horticultural exhibition, education purposes, or special

purposes consistent with the purposes of the Act. It is anticipated

that some trade permits may be sought or issued for cultivated

specimens to enhance the propagation and survival of the species.

It is the policy of the Service, published in the Federal Register

on July 1, 1994 (59 FR 34272), to identify to the maximum extent

practicable 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 this

listing on proposed and ongoing activities within the species' range.

Collection, damage, or destruction of listed species on Federal lands

is prohibited, although in appropriate cases a Federal endangered

species permit may be issued to allow collection. However,

Arctostaphylos pallida is not known to occur on any Federal lands. Such

activities on non-Federal lands would constitute a violation of section

9, however, if conducted in knowing violation of State law or

regulations or in violation of State criminal trespass law. Interstate

or foreign commerce, or offering for sale in interstate or foreign

commerce, or importing or exporting pallid manzanita without a

threatened species permit would be a violation of section 9. Questions

regarding whether specific activities would constitute a violation of

section 9 should be directed to the Field Supervisor of the Service's

Sacramento Field Office (see ADDRESSES section). Requests for copies of

the regulations concerning listed plants and general inquiries

regarding prohibitions and permits may be addressed to the U.S. Fish

and Wildlife Service, Ecological Services, Endangered Species Permits,

911 N.E. 11th Avenue, Portland, Oregon 97232-4181 (telephone 503/231-

2063; facsimile 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental

Assessments and Environmental Impact Statements, as defined under the

authority of the National Environmental Policy Act of 1969, need not be

prepared in connection with regulations adopted pursuant to section

4(a) of the Endangered Species Act of 1973, as amended. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

Required Determinations

This rule does not require collection of information that requires

approval by the Office of Management and Budget under 44 U.S.C. 3501,

et seq.

References Cited

A complete list of all references cited herein is available upon

request from the Field Supervisor of the Service's Sacramento Field

Office (see ADDRESSES section).

Author

The primary author of this final rule is Dwight Harvey, Sacramento

Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, the Service amends part 17 subchapter B of chapter I,

title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Amend section 17.12(h) by adding the following, in alphabetical

order under FLOWERING PLANTS, to the List of Endangered and Threatened

Plants:

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

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

Species

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

Scientific name Common name habitat rules

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

Flowering Plants

* * * * * * *

Arctostaphylos pallida........... pallid manzanita.... U.S.A. (CA)........ Ericaceae--heath... T 635 NA NA

* * * * * * *

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[[Page 19850]]

Dated: March 4, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-10662 Filed 4-21-98; 8:45 am]

BILLING CODE 4310-55-P