Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule to List the Black Legless Lizard as Endangered

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD09

Endangered and Threatened Wildlife and Plants; Withdrawal of

Proposed Rule to List the Black Legless Lizard as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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

proposed rule, published in the Federal Register on August 2, 1995 (60

FR 39326), to list the black legless lizard (Anniella pulchra nigra) as

an endangered species under the Endangered Species Act of 1973, as

amended (Act). The black legless lizard is now known to occur in a much

wider variety of habitat than previously thought, and the threats to

its survival have decreased since the proposed rule was published. The

Installation-Wide Multispecies Habitat Management Plan (HMP) for Former

Fort Ord, now provides preservation and habitat management on 546

hectares (ha) (1,366 acres (ac)) of coastal and interior dune sheets

occupied by the black legless lizard. Elsewhere, a large proportion of

the remaining habitat of the black legless lizard is already protected

from urbanization and commercial development on public lands, and

widespread losses of habitat are unlikely to continue in the

foreseeable future. Recent and ongoing restoration efforts on dunes

colonized by alien vegetation are likely to benefit the black legless

lizard. Furthermore, extensive new invasion of existing black legless

lizard habitat by alien plants is unlikely to occur. Based on this

information the Service concludes that listing of the black legless

lizard is not warranted.

ADDRESSES: The complete file for this action is available for

inspection, by appointment, during normal business hours at the Ventura

Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola

Road, Suite B, Ventura California 93003.

FOR FURTHER INFORMATION CONTACT: Mr. Carl T. Benz, Assistant Field

Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife

Service, at the above address (805/644-1766).

SUPPLEMENTARY INFORMATION:

Background

On August 2, 1995, the Service published a proposal to list five

plant species and the black legless lizard from Monterey County,

California as endangered or threatened in the Federal Register (60 FR

39326) . The subject of this withdrawal, the black legless lizard, was

originally described by Fischer in 1885 as Anniella nigra (in Hunt

1983). The description of A. nigra as distinct from A. pulchra, which

had been previously described by Gray in 1852 and Richardson in 1854

(in Hunt 1983), was based on unique scalation, body proportions, and

coloration observed in a single specimen. Since the original

description, the taxonomic status of the black legless lizard has been

open to interpretation (Hunt 1983 and references therein; Murphy and

Smith 1985, 1991; Jennings and Hayes 1994). However, since at least the

1940s, most authors have concluded that the black legless lizard is a

subspecies of A. pulchra. As currently recognized, the California

legless lizard, A. pulchra, consists of two subspecies; a wide-ranging

form, A. p. pulchra, the silvery legless lizard, and a more narrowly

ranging form, A. p. nigra, the black legless lizard.

The black legless lizard has been collected primarily from coastal

dunes of the Monterey Peninsula and Monterey Bay between the Salinas

and Carmel rivers (Miller 1943, Bury 1985). However, Anniella with dark

backs and other morphological traits resembling the black legless

lizard have been collected north of the Salinas River as far as the San

Francisco Bay area and south of the Carmel River in the Morro Bay and

Pismo Beach areas, and on the Santa Maria dune sheet at the Guadalupe

(San Luis Obispo County) and Mussel Rock (Santa Barbara County) dunes.

The relationship of these lizards to A. p. nigra remains unresolved

(Miller 1943, Bezy et al. 1977, Hunt 1983, Bury 1985, Jennings and

Hayes 1994). Miller (1943) and Bury (1985) believed unambiguous black

legless lizard populations to be restricted to the coastal area between

the Salinas and Carmel rivers. Stebbins (1985) considered the

distribution of this taxon to be the Monterey Peninsula, Monterey Bay,

and Morro Bay. Hunt (1983) showed an even more extensive distribution.

All of these authors agree that coastal specimens of Anniella from

between the Salinas and Carmel rivers are black legless lizards. As a

result, the August 2, 1995, proposal of A. p. nigra as endangered was

applied only to the range of this taxon as described by Miller (1943)

and Bury (1985).

Based on electrophoretic analyses of Anniella from a small number

of localities in California and Baja California, Mexico, Bezy et al.

(1977) concluded that the genetic distance between Anniela. p. nigra

and A. p. pulchra was consistent with subspecific classification.

Rainey (1984) conducted biochemical analyses of Anniella from several

coastal central California localities with the goal of resolving the

distinctness of the black legless lizard. The results suggested genetic

differences between dark forms of A. p. pulchra from Morro Bay and A.

p. nigra from the Monterey Peninsula. The results of more fine-scaled

sampling in the vicinity of Monterey Bay revealed differences in allele

frequencies even among adjacent sites, suggesting genetic subdivisions

even within a limited area, but too few samples were analyzed to draw

any reliable conclusions.

The black legless lizard is a burrowing, limbless lizard about the

diameter of a pencil and reaches a maximum length of about 23

centimeters (cm) (9 inches (in)). It has a black or dark brown back

(hatchlings are light colored) and a yellow underside (Fisher 1934,

Miller 1943, Hunt 1983, Stebbins 1985). The black legless lizard is

distinguished from the silvery legless lizard by dark back coloration,

fewer back scales count, and a relatively short tail (Miller 1943, Hunt

1983, Bury and Corn 1984).

Although the historical distribution of the black legless lizard is

somewhat uncertain, museum specimens collected since the late 1800s

suggest a distribution restricted to coastal and interior dunes and

other areas of sandy soils in the vicinity of Monterey Bay and the

Monterey Peninsula. Over the last 20 years, biological surveys and

anecdotal accounts of naturalists and area residents confirm that the

black legless lizard is still extant within this range; however, much

of the coastal sandy plains and dunes that were habitat for this

lizard, particularly on

[[Page 43130]]

the Monterey Peninsula, have been converted to urban or other uses.

Bury (1985) surveyed most potential habitat for the black legless

lizard, as well as sites as far south as Morro Bay and north to Ano

Nuevo State Reserve in San Mateo County where intergrades might occur.

Black legless lizards were found at 17 sites, all of which lie on or

near approximately 45 kilometers (km) (28 miles (mi)) of coastline

between the Salinas and Carmel rivers. Within the range of the black

legless lizard, habitat destruction due to urbanization, particularly

on the Monterey Peninsula, has reduced and fragmented the habitat

available to this lizard. The remaining coastal habitat is degraded to

varying degrees by current or previous human effects such as trampling,

sand mining, vehicular use, and introduction of exotic plants,

particularly Carpobrotus edulis and Ammophila arenaria.

Summary of Comments on the Proposed Rule

In the August 2, 1995, proposed rule (60 FR 39326) and associated

notifications, all interested parties were requested to submit factual

reports or information to be considered in making a final listing

determination. The proposed rule opened a public comment period through

October 9, 1995. A public hearing was requested by one commenter. Due

to the Federal moratorium on final listing actions, imposed on April

10, 1995, the public hearing and processing of the final rule could not

be scheduled immediately. Once the moratorium was lifted, on April 26,

1996, the Service established its priority for listing actions and the

public hearing was scheduled. The public hearing was held on August 20,

1996, in Monterey, California, and allowed presentation of both oral

and written comments. An associated 60-day public comment period closed

August 30, 1996. During the hearing and public comment period

substantial new information was submitted concerning the range,

habitats, and taxonomic status of the legless lizards. To allow the

public to comment on this new information and to permit submission of

any new information that had become available on the other taxa in the

package, the comment period was reopened. The second 30-day public

comment period closed on May 2, 1997. Appropriate Federal and State

agencies, local governments, scientific organizations, and other

interested parties were contacted and asked to comment. Legal notices

of the availability of the proposed rule were published in the Monterey

Herald and the Santa Cruz Sentinel during the initial comment period,

and in the Monterey Herald, Half Moon Bay Review, and Pacifica Tribune

for the 1997 comment period.

During the public comment periods and public hearing, 20 agencies,

groups, and individuals commented on the plant taxa included in the

proposed rule, some of them multiple times. The majority of comments

received concerned the proposal to list the black legless lizard.

Written comments and oral statements presented at the public hearing

and received during the comment periods were given equal consideration

and are addressed in the following summary. Because the proposed rule

included five plant taxa in addition to the black legless lizard, only

those comments specific to the black legless lizard are addressed in

this notice. Comments specific to the five plant taxa and general

comments on the proposed rule are discussed in a separate Federal

Register notice being published concurrently with this withdrawal.

Comments of a similar nature are grouped into a single issue. These

issues and the Service's responses are discussed below.

Issue 1: Several commenters warned that the economic development or

revitalization of the jurisdictions within the range of the black

legless lizard could be threatened by the listing. Additionally, noting

that the black legless lizard is regularly encountered on agricultural,

commercial and residential properties, several commenters were

concerned that the listing could curtail, or make illegal, the everyday

activities of property owners, such as tilling soil for farming, yard

work, and landscaping.

Service Response: Section 4(b)(1)(A) of the Act requires that a

listing determination be based solely on the best scientific and

commercial data available. The legislative history of this provision

clearly states the intent of Congress to ``ensure'' that listing

decisions are ``based solely on biological criteria and to prevent non-

biological criteria from affecting such decisions' (H.R. Rep. No. 97-

835, 97th Cong. 2nd Sess. 19 (1982)). As further stated in the

legislative history, ``economic considerations have no relevance to

determinations regarding the status of species.'' Because the Service

is specifically precluded from considering economic impacts in a final

determination on a proposed listing, possible economic consequences of

listing the black legless lizard were not considered.

Issue 2: Several commenters argued that there is insufficient basis

for a listing at this time because experts disagree on the distinctness

of the black legless lizard as well as the basis for distinguishing

between the black legless lizard and the more common silvery form. On

the other hand, one commenter submitted an unpublished manuscript which

included a phylogeny of legless lizards based on mitochondrial DNA

sequencing.

Service Response: A brief review of the taxonomic history of the

black legless lizard is provided in the background section of this

notice. All available evidence indicates that the California legless

lizard, Anniela pulchra, is subdivided into a number of more or less

genetically distinct groups. Unresolved evolutionary relationships

continue to interest workers in the fields of evolutionary biology,

systematics, and natural history, and it is recognized that taxonomic

studies that may result in the revision of A. pulchra are likely.

Nevertheless, the black legless lizard has been regarded as

taxonomically distinct for over 100 years. Despite ambiguities that

exist regarding the distinctness and relationships of legless lizards

north of the Salinas River and south of the Carmel River, the presence

of a distinct, more or less isolated, legless lizard in the vicinity of

Monterey Bay has not been seriously debated for several decades.

Issue 3: Citing new information relating to the closure of the

former Fort Ord, several commenters pointed out that legless lizards

have now been found to occur over a much wider range and in a more

complex array of habitats than was described in the proposed rule.

These commenters encouraged the Service to delay the listing decision

until the taxonomic identity of these lizards and their distribution

and abundance on the former Fort Ord lands are established.

Service Response: The Service acknowledges that new information on

distribution and habitat use has been made available since the proposal

to list the black legless lizard as endangered (60 FR 39326). In 1995

and 1996, legless lizards were encountered by U.S. Army personnel

during unexploded ordnance cleanup operations at the former Fort Ord

(James W. Willison, Director of Environmental and Natural Resources

Management, Presidio of Monterey, in litt. 1997). Late in 1996, the

Fort Ord Coordinated Resource Management and Planning (CRMP) team

formed a special subcommittee to coordinate surveys for legless lizards

on the former base and nearby areas. Field surveys have been conducted

in the interior of the former base on lands managed by the City of

Marina, the University of California, and the Bureau of Land Management

(BLM)

[[Page 43131]]

(Robert E. Beehler, Area Manager, Hollister Resource Area, BLM, in

litt. 1997). During these surveys, legless lizards have been

encountered in many new localities and in a variety of habitats

including live oak woodland, non-native grassland/oak woodland ecotone,

grassland/shrub, dune scrub, and maritime chaparral. The implications

of these survey results with respect to the status of the black legless

lizard are discussed under Factor A in the ``Summary of Factors

Affecting the Species'' section.

Issue 4: Several commenters argued that the habitat of the black

legless lizard is much more secure than indicated in the proposed rule

because the lizard will now be protected on 6,800 ha (17,000 ac) as

part of the HMP for former Fort Ord, and because parts of its range

overlap with the range of the federally listed Smith's blue butterfly

(Euphilotes enoptes smithi).

Service Response: The Service agrees. Roughly 6,800 ha (17,000 ac)

on the former Fort Ord is permanently protected under the provisions of

the HMP (U.S. Army Corps of Engineers 1997). The HMP was established in

April, 1994, and subsequently revised in November, 1996, and again in

April, 1997. Since 1995, surveys conducted under the auspices of the

CRMP team have demonstrated a wide, but apparently patchy, distribution

of dark-colored legless lizards on former Fort Ord lands. Within the

HMP boundaries, legless lizards have been encountered on lands that

have already been developed, on lands that are proposed for

development, and on lands that are permanently protected and will be

managed for sensitive plants and animals.

Over much of its range, the black legless lizard is found in

habitats occupied by the Smith's blue butterfly. On public lands, where

the habitat of the Smith's blue butterfly is largely protected,

management actions such as removing exotic vegetation and restoring

native plant communities may benefit the black legless lizard when it

is present. On private lands occupied by the Smith's blue butterfly,

proposed developments may be permitted via the habitat conservation

plan (HCP) process pursuant to section 10 of the Act. Black legless

lizards are likely to benefit from the permanent maintenance of natural

plant communities on HCP lands preserved for the Smith's blue

butterfly.

Issue 5: Several area residents pointed out that the black legless

lizard is common in residential neighborhoods and on commercial

property in the cities of Seaside and Marina. More than 80 residents of

the City of Marina reported black legless lizards on their property.

The commenters questioned the need to list such a common organism as

endangered. An opposing view was presented by other commenters who

argued that the lizard is imperiled by human impacts and that Federal

listing could provide greater assurances for the survival of the black

legless lizard.

Service Response: A questionnaire attached to the City of Marina

newsletter, was sent to 7,000 businesses and residences in the spring

of 1997. Of 247 responses, 81 (33 percent) of the respondents indicated

they had seen legless lizards on their property. Most of the

respondents had seen legless lizards within the last 3 years, and many

indicated they observe legless lizards year after year. The results of

the City of Marina survey are not surprising. Legless lizards are

occasionally encountered on residential and commercial property

throughout their range. In the Monterey Bay area, it is not unusual for

residents of Marina, Seaside, and portions of Monterey and Pacific

Grove to encounter black legless lizards on residential and commercial

properties. Legless lizards can clearly persist for decades in and

around highly altered man-made settings, although this may not be

optimal habitat for them. Habitat fragmentation is discussed further in

Factor E of the ``Summary of Factors Affecting the Species'' section of

this notice.

Issue 6: One respondent questioned the need for listing the black

legless lizard at this time, noting the California Environmental

Quality Act (CEQA) and the California Coastal Act recognize the lizard

as a special status species.

Service Response: The black legless lizard is often given special

consideration in CEQA compliance documents. Legislation and State

regulations require mitigation or other compensation for impacts to

sensitive or rare species. However, CEQA provides for ``Statements of

Overriding Consideration'' which allow adverse impacts with less than

full mitigation. The California Coastal Act regulates development

within the coastal zone and has slowed the loss of coastal habitats

such as the dune habitats used by black legless lizards.

Issue 7: Several commenters questioned the need for listing at this

time because the lizard is very abundant in suitable habitat. On the

other hand, other commenters argued that the distribution of legless

lizards is patchy, and abundance does not assure survival when the

human impacts involve habitat destruction.

Service Response: The black legless lizard, like other small,

burrowing reptiles can occur in dense populations, up to several

hundred per hectare, in a wide range of habitats (Turner 1977). The

distribution of legless lizards within their range, however, is

dictated largely by soil texture (Hunt 1997, in press). Thus, the

distribution of the black legless lizards in the vicinity of Monterey

Bay is expected to be somewhat patchy. The results of surveys conducted

under the auspices of the CRMP on the former Fort Ord have conformed to

the prediction of a patchy distribution. Primary threats to the lizard

identified in the proposed rule involved uncertainties associated with

the clean-up and transfer of lands formerly managed by Fort Ord and the

invasion of lizard habitat by exotic vegetation (60 FR 39332-39334).

The significance of these threats is discussed under factors A and E of

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

Issue 8: Two commenters questioned the current severity of the

threats to the black legless lizard related to conversion of the dune

habitats by invasion of exotic plants such as Carpobrotus edulis and

Ammophila arenaria. The commenters described dune restoration projects

in detail, including exotic plant eradication on previously preserved

Federal and State lands, newly protected lands associated with the

closure of former Fort Ord, and private property, and argued that

lizard habitat is becoming more, not less common in the Monterey Bay

area. On the other hand, several commenters supported listing because

of concerns about invasion of black legless lizard habitat by exotic

plant species.

Service Response: Most of the evidence that exotic plants are

associated with low abundances of black legless lizards is indirect.

Using an intensive sampling method, Bury (1985) demonstrated that black

legless lizards were less abundant in mats of Hottentot fig than they

were in and around native dune vegetation. Soil chemistry, thermal

properties and invertebrate prey abundance differ between dune habitats

dominated by Carpobrotus edulis and natural dune habitats (Bury 1985;

Lawrence Hunt, University of California, Santa Barbara, in litt. 1995).

Since about 1985, a host of programs on Federal, State, and private

lands have been initiated to eradicate exotic plants and restore native

plant communities on the dune ecosystems of the Monterey Bay area.

At present, our knowledge of the habitat requirements of the black

legless lizard, and of the methods and results

[[Page 43132]]

of the ongoing dune restoration efforts suggests that the black legless

lizard will benefit substantially if these programs continue. A more

complete analysis of impacts of exotic vegetation and dune restoration

programs on the black legless lizard is given under Factor E of the

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

Issue 9: One commenter criticized the Service's heavy reliance on

the Bury (1985) status report, which is over 10 years old. The

respondent stated that the report is stale and no longer accurate.

Citing Roosevelt Campobello Intern. Park v. U. S. E. P. A., 684 F.2d

1041, 1052-1055 (1st Cir. 1982) the commenter argued that in cases

where insufficient information exists, the Service is obliged to

develop further scientific data. Likewise, the same commenter argued,

citing City of Carmel-By-The-Sea v. U.S. Dept. Of Transp., 95 F.3d 892,

900 (9th Cir. 1996), that reliance on stale scientific data can

constitute an abuse of discretion. These arguments based on the same

court decisions also were made by a second commenter.

Service Response: Although the Bury (1985) status report on the

black legless lizard is now 12 years old, it remains accurate and still

useful. It provides an extensive analysis of the distribution of black

legless lizards, their variation, and their habitats. The descriptions

of collection localities and the habitat conditions are of sufficient

detail to allow current workers to evaluate short-term changes in

legless lizard habitat. In a clear demonstration that the Bury report

still provides valuable historical information, the Service received,

during the public comment period, a copy of a site-by-site comparison

between the habitat conditions described by Bury in 1985 and the

current conditions at those same sites (Michael J. Zander, Zander and

Associates, in litt. 1995). Without the specific site and habitat

condition information contained in the Bury report, such a comparison

would not have been possible. Furthermore, the Act is clear in its

requirement that listing decisions be based ``solely on the best

scientific and commercial data available [emphasis added] after

conducting a review of the status of the species . . .'' (16 U.S.C.

1533, section 4(b)(1)(A)). The Service, therefore, is not obliged to

develop further scientific data beyond that which is available to it

during its status review.

Issue 10: Two commenters supported the listing, registering their

concern that hybridization between black and silvery legless lizards

represents a substantive threat to the distinctness of the black

legless lizard as a distinct biological entity.

Service Response: Anecdotal and published reports of interbreeding

between black legless lizards (Anniela p. nigra) and silvery legless

lizards (A. p. pulchra) are common and are based on apparent

intermediate morphological traits including scalation, body

proportions, and coloration. The currently available biochemical and

molecular evidence is insufficient to determine the extent of gene

flow, past or present, between populations of legless lizards in the

Monterey Bay area. No evidence exists, therefore, that hybridization

poses a threat to the black legless lizard.

Summary of Factors Affecting the Species

The Act and implementing regulations found at 50 CFR 424.17(3)

provide the basis for determining a species to be endangered or

threatened and for withdrawing a proposed rule when the proposal has

not been found to be supported by available evidence. The five factors

described in section 4(a)(1) of the Endangered Species Act, as they

apply to the withdrawal of the proposed listing of the black legless

lizard (Anniella pulchra nigra), are as follows:

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

of its Habitat or Range

Primary threats to the black legless lizard identified under Factor

A in the proposed rule were associated with the anticipated closure of

Fort Ord, including clean-up and the disposition and future uses of the

former Army base, which at the time were unknown (60 FR 39332). Now

that the closure of Fort Ord has occurred, the significance of these

threats can be more accurately assessed. Under the Installation-Wide

HMP, roughly 6,800 ha (17,000 ac) of the former Fort Ord will be

permanently protected and managed for plants and wildlife, including

the black legless lizard (Michael Houlemard, Fort Ord Reuse Authority,

in litt. 1997). At the time of the proposed rule, the extent of

occupied black legless lizard habitat was uncertain, with estimates

ranging from 190 ha (470 ac) to 1,206 ha (2,980 ac). Based on surveys

conducted since the proposed rule was published (60 FR 39332), it is

now known that at least 546 ha (1,366 ac) of habitat for the black

legless lizard will be protected on the former Ford Ord (US Army Corps

of Engineers 1997). In addition, at the time of the proposed rule, the

black legless lizard was thought to be restricted to sandy coastal

plains and dunes (60 FR 39332). It has now been found in a wider

variety of habitats, including live oak woodland, non-native grassland/

oak woodland ecotone, grassland/shrub, dune scrub, and maritime

chaparral (R. Beehler, in litt. 1997). The major land manager

responsible for maintaining natural habitats in the interior of the

former Fort Ord is the BLM, to which the U.S. Army has already

transferred several thousand acres. The University of California

Natural Reserve System will manage about 240 ha (600 ac) for field

research and teaching as well as for protection and enhancement of

biological resources. With the implementation of the HMP a large

portion of the undeveloped remainder of the interior Monterey Dune

sheets will be protected, making the Monterey dune complex (Cooper,

1967) the largest protected dune mass in California. Since 1995,

surveys conducted under the auspices of the CRMP team have demonstrated

a wide, but apparently patchy, distribution of dark-colored legless

lizards on former Fort Ord lands (M. Houlemard, in litt. 1997).

The Department of the Army also is currently in the process of

transferring over 320 ha (800 ac) of coastal dunes along a roughly 6.4

km (4 mi) reach to the California Department of Parks and Recreation

(CDPR). CDPR management plans on Marina State Beach and on the

adjoining coastal dune habitat being transferred from the former Fort

Ord offer permanent protection to over 340 ha (850 ac) of black legless

lizard habitat (U.S. Army Corps of Engineers 1997). Furthermore, as a

result of a recent Memorandum of Understanding between the City of Sand

City, the Monterey Peninsula Regional Parks District, and the

California Coastal Commission, 75 to 80 percent of Sand City coastal

habitat adjacent to the former Fort Ord will be preserved as open space

(David Pendergrass, Mayor, City of Sand City, in litt. 1997).

Other threats to the black legless lizard cited under Factor A in

the proposed rule included military activities, off-road vehicle

activities, human trampling, and sand mining (60 FR 39332). With the

closure of Fort Ord, military activities no longer threaten the species

or its habitat. Off-road vehicle use has been prohibited on all public

lands along Monterey Bay and coastal portions of the Monterey Peninsula

for many years. The effects of human trampling are being reduced by

active programs that involve restricting access to designated trails

with symbolic and cable fencing and construction of sand ladders and

boardwalks. Sand mining occurs at only two sites and, therefore, is not

considered to be a significant

[[Page 43133]]

threat in the absence of major threats to the species or its habitat.

Although land development was not specifically identified as a

major threat in the proposed rule, at least one comment received during

the public comment period suggested that this might be the case. A

comparison of the habitat conditions at sites described by Bury (1985)

with their current status (J. Dack, City of Marina, in litt. 1997)

shows that only a small amount of black legless lizard habitat, mostly

on private lands, has been developed or proposed for development. In

fact, during this period both land ownership and land use has favored

the protection of natural habitats. The majority of black legless

lizard habitat is now in protected status on public lands such as the

State Beaches where most dunes have been designated as Natural

Preserves. Almost all of the undeveloped private property parcels are

already the subject of studies and planning efforts which will, in all

likelihood, lead to the resolution of future land uses within the next

10 years. The future land uses on the stretch of private property along

the coast between the Salinas River National Wildlife Refuge and Marina

State Beach represent, by far, the greatest area of uncertainty about

future conversion of black legless lizard habitat for human uses.

Because of the widespread occurrence of the endangered Smith's blue

butterfly along the Monterey coast, many future development proposals

along the coastline will probably be subject to the Act and the habitat

protections that accompany it. On these lands, proposed developments

may be permitted via the habitat conservation plan (HCP) process

pursuant to section 10 of the Act. Black legless lizards are likely to

benefit from the permanent maintenance of natural plant communities on

HCP lands preserved for the Smith's blue butterfly. Thus, the Service

finds no evidence that future losses of black legless lizard habitat

from land conversion constitute a significant threat to the species.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

Although the black legless lizard is of interest to many people

because it is an unusual reptile, overutilization does not appear to be

a factor threatening the species (Bury 1985). The State of California

prohibits taking or possession of black legless lizards without a

special permit (see Factor D). Collection of species by reptile

collectors could pose a serious threat to populations that contain few

individuals. Legless lizards are not commonly collected or traded,

however, and the black legless lizard's small size, secretive habits,

and difficult maintenance requirements all suggest that the

international trade in reptiles poses an insignificant threat to the

taxon.

C. Disease or Predation

The black legless lizard is not known to be subject to catastrophic

diseases. In surveys, many individuals have broken or scarred tails,

suggesting predation (Bury 1985). Miller (1944) believed that predation

by feral house cats may negatively affect some black legless lizard

populations. Threats posed by house cats and other predators associated

with humans can be expected whenever urban development encroaches on

the habitat of this lizard. The well documented persistence of black

legless lizards for several decades in urban and suburban areas within

the Monterey Bay area and the Monterey Peninsula settings suggests,

however, that predation is a minor threat and the risk of even local

extirpation due to predators associated with humans is probably low.

D. The Inadequacy of Existing Regulatory Mechanisms

The black legless lizard is listed as a protected reptile under

Section 650 of the Title XIV California Sport Fishing Regulations.

Except under special permit from the California Department of Fish and

Game, collection of black legless lizards is prohibited by the State of

California. The habitat of this species is not specifically protected

by any State or Federal regulation. Land use on black legless lizard

habitat is controlled by local zoning, California State Park

regulations on State Beaches such as Marina and Monterey State Beaches,

and land management practices on Federal lands, including the Salinas

River National Wildlife Refuge, portions of the former Fort Ord and the

Naval Post-graduate School. The black legless lizard is often given

special consideration in land use planning and in National

Environmental Policy Act and CEQA compliance documents. The California

Coastal Act regulates development within the coastal zone and has

slowed the loss of coastal habitats such as the dunes and sand habitats

used by black legless lizards. On Federal lands, the black legless

lizard has also been afforded some protection indirectly through

special management for Federal listed and candidate plant species that

occur in coastal areas. Where the black legless lizard occurs with the

endangered Smith's blue butterfly, which is the case throughout much of

the black legless lizard's range, protection of habitat for the

butterfly is likely to also benefit the lizard. As discussed under

Factor A, most undeveloped private property within the range of the

black legless lizard is already the subject of impact studies and

development planning efforts, and it is highly likely that a stable

equilibrium between urbanization and habitat protection will be

achieved in the foreseeable future. In addition, the trend toward

conversion of natural dune plant communities by exotic vegetation has

been reversed (see Factor E) and should soon lead to a significant

increase in suitable habitat for the black legless lizard. Therefore,

the inadequacy of existing regulatory mechanisms does not constitute a

significant threat to the black legless lizard.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Nearly all known coastal black legless lizard localities support

populations of exotic plants such as Carpobrotus edulis, Ammophila

arenaria, ice plant (Mesembryanthemum crystallinum), and veldt grass

(Ehrharta calycina). Legless lizards are primarily associated with

moist soil and leaf litter under native vegetation such as bush lupine

(Lupinus albifrons), mock heather (Haplopappus ericoides), and sagewort

(Artemisia sp.) and appear to be less abundant in areas dominated by

Carpobrotus edulis (Miller 1944, Stebbins 1954, Bury 1985, City of Sand

City 1992). During habitat restoration at Asilomar State Beach, where

C. edulis was removed by hand from over 12 ha (30 ac), black legless

lizards were not found in pure stands of C. edulis, but were found

where Carpobrotus edulis grew in mixed stands with native shrubs (Tom

Moss, pers. comm. 1993). Pure stands of some exotic plants may alter

the substrate or prey base in a way that is detrimental to black

legless lizards. While the mechanism is unclear, exotic plants may

influence soil temperature or moisture differently than native

vegetation. Some types of exotic plants, including ice plants, support

a smaller arthropod prey base than native plant communities (Miller

1944, Stebbins 1954, Nagano et al. 1981) and it is known that some ice

plants can cause increased salt concentrations in soil (Kloot 1983).

Bury (1985) speculated that ice plants may make habitat unsuitable for

black legless lizards either because they have trouble maintaining

their water balance in the substrate, or indirectly through reductions

in arthropod abundance.

In his status report, Bury (1985) found widespread patches of ice

plant and other exotic vegetation on most of the

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sites he surveyed. On undeveloped sites such as the State beaches, as

well as on smaller fragments of dunes along developed stretches of

coastline, the amount of habitat available to black legless lizards was

limited by the presence of exotic plants, primarily C. edulis. As a

result of a variety of publicly and privately funded restoration

projects and volunteer efforts since 1985, however, most extant coastal

dunes in the Monterey Bay area have had at least some level of exotic

plant removal and native plant revegetation. The sites Bury surveyed

which now have dune restoration programs include all of the State

beaches, most notably Sunset State Beach, Salinas River State Beach,

Marina State Beach, and Asilomar State Beach. Another restoration

effort is underway at the U.S. Navy Post-graduate School (Cowan 1996)

where, at the time of the Bury status report, the natural dune plant

community on this site was restricted to a 0.5-ha (1.2-ac) patch. Over

the subsequent 15 years, restoration has occurred on 10 ha (25 ac) of

the 16 ha (40 ac) of dunes on the site. Several other sites, most not

specifically mentioned by Bury, have ongoing exotic plant removal and

revegetation programs, including the Monterey Peninsula Regional Parks

District lands near the City of Marina and the old landfill on the Sand

City coastline, the old Phillips Petroleum site near the City of

Monterey, which has recently been purchased by the CDPR, and the City

of Monterey's program at Del Monte Beach. Some dune restoration

projects including exotic plant removal and revegetation are also

occurring on private property in and around Seaside and Sand City, and

on the Monterey Peninsula. Two examples of projects on the Monterey

Peninsula are the efforts to protect and manage about 24 ha (60 ac) of

created and restored dunes and about 6.8 ha (17 ac) of natural dunes

near the golf course at Spanish Bay and the restoration on about 2 ha

(5 ac) of dunes at Fan Shell Beach near Spyglass Hill, Cypress Point.

The largest contiguous coastal tract of black legless lizard

habitat surveyed by Bury was on the former Fort Ord. Bury identified

about 190 ha (470 ac) along a roughly 6.4 km (4 mi) stretch of coastal

dunes. At the time, Fort Ord was an active U.S. Army base and the dunes

and native vegetation were highly disturbed by past and ongoing

military activities. Bury reported that the dunes were covered by

Carpobrotus edulis and supported little native vegetation. Although

Fort Ord has been decommissioned, this habitat remains in much the same

condition as it was when Bury described it. However, under the

authority of the HMP for the former Fort Ord, over 340 ha (850 ac)

along the stretch of beach described by Bury will be transferred from

the U.S. Army to the CDPR (U.S. Army Corps of Engineers 1997). The HMP

calls for preservation and exotic plant removal, as well as restoration

and maintenance of native dune plant communities on over 280 ha (700

ac).

Because the current trend is toward restoration of coast dune

ecosystems, it is unlikely that, in the foreseeable future, conversion

of black legless lizard habitat by exotic vegetation will occur at

levels similar to those between the time of the natural history studies

of Miller (1944) and the Bury status review (1985). Most likely, the

ratio between exotic and native vegetation in the Monterey Bay area

dunes within the foreseeable future will reflect funding levels and

commitment to the various restoration programs. Because black legless

lizards have been encountered recently on several restoration and

revegetation sites on Monterey Bay and the Monterey Peninsula,

including Marina State Beach, the U.S. Navy Post-graduate School and

Asilomar State Beach, it appears that they are able to live in restored

dune habitats.

Although there may be short-term negative effects on black legless

lizards from some restoration methods (e.g., the use of glyphosphate

instead of hand harvest for Carpobrotus edulis removal), the Service is

aware of no evidence that any such effects pose a significant threat to

the species.

Fragmentation of existing black legless lizard habitat due to the

construction of roads, golf courses, and other urban development was

identified as a potential threat in the proposed rule (60 FR 39334).

However, based on additional review and new information the Service no

longer believes that habitat fragmentation poses a significant threat

to the species in the foreseeable future. The common occurrence of

legless lizards in residential neighborhoods, on agricultural and

commercial properties, in and around the roughs adjacent to golf course

fairways, and even under paved roadways suggests that this is not a

significant threat. Although fragmentation may increase the

vulnerability of smaller populations to local extirpation from random

events, the large blocks of relatively unfragmented habitat that are

already protected, or will likely be protected in the foreseeable

future, are sufficient to buffer the effects of random events on larger

populations. Therefore, the overall impact of random events to the

black legless lizard is unlikely to be significant.

The proposed rule also identified relatively low fecundity in the

black legless lizard as a potential threat, because it implied a

relatively long population recovery time and a heightened sensitivity

to habitat degradation from off-road vehicles, trampling, and other

disturbances (60 FR 39334). Because the black legless lizard is now

known to occur in many areas protected from such disturbances, and in

other areas that will likely be protected from such disturbances in the

near future, relatively low fecundity, in and of itself, is not likely

to pose a significant threat to the survival of the species.

In the proposed rule (60 FR 39334), the Service also identified

strong storms and periodic extremely high tides as potential threats to

the species. Because the black legless lizard is now known to occur in

protected areas throughout its range, the Service now believes that the

threat posed by such rare, random weather events is unlikely to be

significant to the survival of the species. There are other random

factors with the potential to affect small, isolated populations. There

is, however, too little known about population size and how it

fluctuates, population structure, and the dispersal capabilities of the

black legless lizard to support more than speculation about the

potential threat posed by random events on this species. The Service is

not aware of any evidence suggesting that random events pose a

significant degree of threat to the black legless lizard.

Finding and Withdrawal

The Service carefully assessed the best scientific and commercial

information available regarding the past, present, and future threats

faced by the black legless lizard. The withdrawal is based primarily on

the finding that the black legless lizard is now known to occur in a

wider variety of habitats than previously thought and that a large

proportion of the remaining habitat of the lizard is already protected

from urbanization and commercial development on public lands (U.S. Army

Corps of Engineers 1997; D. Pendergrass, in litt. 1997; M. Houlemard,

in litt. 1997), and on the likelihood that widespread losses of habitat

due to the invasion of exotic vegetation are unlikely to continue in

the foreseeable future. Moreover, the current trend is toward

restoration of coastal ecosystems, a trend that should increase the

available habitat for the black legless lizard. In addition, because

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of the existing protected habitat areas and other areas likely to

receive some protection in the foreseeable future, potential threats

from habitat fragmentation, relatively low fecundity, and extreme

weather events cited in the proposed rule are now considered unlikely

to pose significant threats to the survival of the species.

References Cited

A complete list of all references cited herein is available upon

request from the Ventura Fish and Wildlife Office (see ADDRESSES

section).

Author. The primary author of this document is Steve Morey,

Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service,

3310 El Camino, Sacramento, California 95821-6340 (916/979-2710).

Authority

The authority for this action is section 4(b)(6)(B)(ii) of the

Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Dated: July 29, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-21565 Filed 8-11-98; 8:45 am]

BILLING CODE 4310-55-P