Rule2023-21477
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Lassics Lupine and Designation of Critical Habitat
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 5, 2023
Effective
November 6, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for the Lassics lupine (Lupinus constancei), a plant species native to northern California. We also designate critical habitat for the species. In total, approximately 512 acres (207 hectares) in Humboldt and Trinity Counties, California, fall within the boundaries of the critical habitat designation. This rule extends the protections of the Act to this species and its designated critical habitat.
Full Text
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[Federal Register Volume 88, Number 192 (Thursday, October 5, 2023)]
[Rules and Regulations]
[Pages 69074-69098]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21477]
[[Page 69074]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2022-0083; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF84
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Lassics Lupine and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973
(Act), as amended, for the Lassics lupine (Lupinus constancei), a plant
species native to northern California. We also designate critical
habitat for the species. In total, approximately 512 acres (207
hectares) in Humboldt and Trinity Counties, California, fall within the
boundaries of the critical habitat designation. This rule extends the
protections of the Act to this species and its designated critical
habitat.
DATES: This rule is effective November 6, 2023.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and on the Service's website at <a href="https://www.fws.gov/species/lassics-lupine-lupinus-constancei">https://www.fws.gov/species/lassics-lupine-lupinus-constancei</a>. Comments and
materials we received are available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R8-ES-2022-0083.
Availability of supporting materials: Supporting materials we used
in preparing this rule, such as the species status assessment report,
are available on the Service's website at <a href="https://www.fws.gov/species/lassics-lupine-lupinus-constancei">https://www.fws.gov/species/lassics-lupine-lupinus-constancei</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at
Docket No. FWS-R8-ES-2022-0083, or both. For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the decision file for this critical
habitat designation and are available at the same locations.
FOR FURTHER INFORMATION CONTACT: Tanya Sommer, Field Supervisor, Arcata
Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521;
telephone 707-822-7201. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
Lassics lupine meets the definition of an endangered species;
therefore, we are listing it as such and finalizing a designation of
its critical habitat. Both listing a species as an endangered or
threatened species and designating critical habitat can be completed
only by issuing a rule through the Administrative Procedure Act
rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule lists the Lassics lupine as an
endangered species, and designates critical habitat for the species,
under the Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the Lassics lupine is
endangered primarily due to woody vegetation encroachment, pre-
dispersal seed predation, fire, and reduced soil moisture due to
drought associated with ongoing climate change.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Previous Federal Actions
Please refer to the October 6, 2022, proposed rule (87 FR 60612)
for a detailed description of previous Federal actions concerning the
Lassics lupine.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the Lassics lupine. The SSA team was composed of Service biologists, in
consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing and recovery actions under the Act (16 U.S.C. 1531 et seq.), we
solicited independent scientific review of the information contained in
the SSA report. As discussed in the proposed rule (87 FR 60612; October
6, 2022), we sent the SSA report to four independent peer reviewers and
received four responses. The peer reviews can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and <a href="https://www.fws.gov/species/lassics-lupine-lupinus-constancei">https://www.fws.gov/species/lassics-lupine-lupinus-constancei</a>. In preparing the proposed rule, we incorporated the
results of these reviews, as appropriate, into the SSA report, which
serves as the foundation for the proposed rule and this final rule. A
summary of the peer review comments and our responses can be found
under Summary of Comments and Recommendations, below.
Summary of Changes From the Proposed Rule
Since the October 6, 2022, proposed rule was published, additional
monitoring data were collected and analyzed. We incorporated these
[[Page 69075]]
population surveys into the SSA report and added the new information to
this final rule. To assess the current condition of the two populations
of Lassics lupine, we now use the most recent 7 years of data (instead
of 5 years of data). Numbers in two of four analysis units increased in
2021 relative to 2020, while two of four analysis units declined in
2022 relative to 2021. Overall, the average number of plants rangewide
declined from 1,000 to 800 between 2020 and 2022 (Carothers 2022,
entire). Under Available Conservation Measures, below, we both (1)
clarify which types of vegetation management would not result in a
violation of section 9, and (2) remove mention of herbicide use, given
that we conclude that herbicide use could impact the species.
We have otherwise made minor editorial corrections, but no
substantive changes, to the October 6, 2022, proposed rule (87 FR
60612) in this final rule.
Summary of Comments and Recommendations
In the proposed rule published on October 6, 2022 (87 FR 60612), we
requested that all interested parties submit written comments on the
proposal by December 5, 2022. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal.
Newspaper notices inviting general public comment were published in the
Times-Standard. We did not receive any requests for a public hearing.
All substantive information we received during the comment period has
either been incorporated directly into this final determination or is
addressed below.
Peer Reviewer Comments
As discussed in Peer Review, above, we received comments from four
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and conclusions
with two exceptions (addressed below in our response to comments). They
also offered suggestions and clarifications to improve our descriptions
of the species' ecology and threats, and our assessments of current and
future conditions. We incorporated all feedback we received from the
peer reviewers to improve the accuracy and readability of the final SSA
report. Peer reviewer comments are addressed in the following summary
and were incorporated into the SSA report as appropriate.
(1) Comment: Two reviewers thought that our categories describing
canopy cover were not accurate and did not capture the nuance of
individual needs between sites.
Our response: We revised the description for each condition
category to better reflect this nuance. Some sites need higher canopy
cover to protect from higher amounts of solar insolation, while other
sites need less canopy cover based on localized orographic shade.
Instead of categorizing canopy cover as qualitative, we instead use a
more quantitative description suggested by one peer reviewer.
(2) Comment: One reviewer thought our future scenario assessments
might be overly optimistic given recent mild weather conditions and
changes to canopy cover that might not have been fully realized in
current population trends. Another reviewer indicated that given what
we know about the correlation of climate and demographic rates, there
would be lower population growth rates, meaning we were overly
optimistic in our characterization of future scenarios.
Our response: We considered these comments and revisited our future
scenario analysis. We changed the future condition categories to better
reflect the plausible future conditions. This resulted in all four
population conditions for future scenario 1 being lower than in the
previous version (for example, the condition of the Red Lassic
decreased from low to very low).
(3) Comment: One reviewer asked why we had not included a future
scenario that includes representative concentration pathway (RCP) 8.5
and caging continued at current levels. This reviewer also requested
more information in general on how we selected our scenarios.
Our response: The future scenarios are meant to capture the range
of plausible future conditions, bounded by the most optimistic
plausible scenario and the most pessimistic plausible scenario, with
the idea being that all plausible future conditions would be captured
in that range. The scenarios we selected for the SSA report meet those
criteria. The combination of RCP 8.5 and current caging levels is
captured in the range of future scenarios chosen.
Comments From Tribes, States, and Federal Agencies
We did not receive any comments during the October 6, 2022,
proposed rule's comment period from Tribes or from State or Federal
agencies.
Public Comments
We received six public comments during the October 6, 2022,
proposed rule's comment period; five of these are directly related to
the proposed rule. All five of the comments related to the proposed
rule support our proposed listing and critical habitat designation for
the Lassics lupine. We reviewed all comments we received for
substantive issues and new information regarding the proposed rule.
None of the comments we received include new information concerning the
listing of, or the critical habitat designation for, the Lassics
lupine. Because none of the public comments we received provide any new
or substantial information or poses questions to be addressed, they do
not warrant an explicit response in this rule.
I. Final Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
Lassics lupine (Lupinus constancei) is presented in the SSA report
(version 1.2; Service 2023, pp. 11-18).
The following species description is largely paraphrased from the
original species description and the Jepson Manual, 2nd edition (Nelson
and Nelson 1983, entire; Baldwin et al. 2012, pp. 772-775). Lassics
lupine is a tap-rooted, herbaceous perennial that grows to a height of
less than 15 centimeters (cm) (6 inches (in)) from a short, slightly
woody stem. The leaves and stem are covered in relatively long, shaggy
hairs, and the plant is cespitose (growing close to the ground). Like
other plants in the genus Lupinus, the leaves are palmately compound
and generally clustered around the base.
Like other flowers of the family Fabaceae (legumes), the flowers of
Lassics lupine are pea-like and composed of five unique petals. The
flowers are pink and white with some variation between the individual
petals. The flowers are arranged in a dense inflorescence called a
raceme, meaning individuals flowers emerge on short stalks (pedicel)
along a central axis. Mature plants can produce up to 20 or more
inflorescences (clusters of flowers), but they typically produce fewer.
Lassics lupine flowers develop into a fruit called a legume that splits
in two halves (pods) that produce between one and five seeds, with an
average of two seeds per fruit (Kurkjian 2012b, p. 5).
Lassics lupine reproduction occurs entirely through seed, and like
many
[[Page 69076]]
members of the legume family, they exhibit seed dormancy, meaning there
is a physical barrier that prevents moisture from entering seeds (i.e.,
an impermeable seed coat) (Guerrant 2007, p. 13). This seed coat
prevents germination and allows the plant to form a persistent seed
bank. This seed coat appears relatively robust upon inspection, and
germination trials suggest that scarification (intentionally damaging
the seed coat) is necessary for germination to occur in laboratory
conditions (Guerrant 2007, p. 14). This suggests that abrasion or other
damage to the seed coat is necessary for germination in natural
conditions.
It is unknown exactly when the majority of Lassics lupine seeds
typically germinate, but it is thought to occur shortly after snow has
melted (which is typically between March and May) and temperatures
begin to rise. Plants can flower and produce seed within their second
year but more often, they take several years to reproduce (California
Department of Fish and Wildlife (CDFW) 2018, p. 13; Kurkjian 2012b,
entire). Lassics lupine typically blooms from June to July but can
start producing flowers as early as May (Baldwin et al. 2012, p. 772).
Lassics lupine may be capable of self-pollination, based on
evidence of partial fruit development in flowers that were
experimentally hand-pollinated and excluded from pollinator visits
(Crawford and Ross 2003, p. 3). However, Lassics lupine is also visited
at high rates by three bee species: yellow-faced bumblebee (Bombus
vosnesenskii), black-tailed bumblebee (Bombus melanopygus), and a mason
bee species (Osmia spp.) (Crawford and Ross 2003, p. 2). All three of
the bee species appear to be capable pollinators given that they are
large enough to trigger the mechanism that releases pollen from the
individual flowers, but no pollination experiments have taken place to
quantify the rate or efficacy of these pollinator species (Crawford and
Ross 2003, p. 3).
Lassics lupine is documented to occur between 1,700-1,800 meters
(m) (5,600-5,800 feet (ft)) in elevation around Mount Lassic and Red
Lassic on the border of Humboldt and Trinity Counties, California. The
species is currently described in two elemental occurrences, or
populations, as delineated by the California Natural Diversity Database
(CNDDB). CNDDB considers populations to be spatially explicit if they
are separated by a 0.4-kilometer (km) (0.25-mile (mi)) interval.
Lassics lupine occurs on or in the vicinity of serpentine soils in
the Lassics Mountains, mainly on barren slopes with very shallow soil
and low organic matter, or less commonly, near edges of Jeffrey pine
(Pinus jeffreyi) forests. Most plants occur in areas with little to no
tree overstory and can occur on flat or steep slopes with high
proportions of gravel or cobble on the surface.
Two populations comprise the total of Lassics lupine occurrences:
the Red Lassic and Mount Lassic populations (see figure 1, below). Over
the previous 7 years of monitoring, the Red Lassic population has
ranged in size from 0 to 320 individuals, and the Mount Lassic
population has ranged in size from 59 to 504 individuals. Rangewide
totals of adult plants have ranged from fewer than 200 to approximately
1,000 individuals over the previous 7 years of monitoring which
includes plants in both populations as well as plants outside of those
two populations.
BILLING CODE 4333-15-P
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[GRAPHIC] [TIFF OMITTED] TR05OC23.057
BILLING CODE 4333-15-C
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Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all of
the threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be listed as an endangered or threatened
species under the Act. However, it does provide the scientific basis
that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess Lassics lupine viability, we used the three conservation
biology principles of resiliency, redundancy, and representation
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency is the
ability of the species to withstand environmental and demographic
stochasticity (for example, wet or dry, warm or cold years); redundancy
is the ability of the species to withstand catastrophic events (for
example, droughts, large pollution events); and representation is the
ability of the species to adapt to both near-term and long-term changes
in its physical and biological environment (for example, climate
conditions, pathogen). In general, species viability will increase with
increases in resiliency, redundancy, and representation (Smith et al.
2018, p. 306) Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over
[[Page 69079]]
time which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R8-
ES-2022-0083 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://www.fws.gov/species/lassics-lupine-lupinus-constancei">https://www.fws.gov/species/lassics-lupine-lupinus-constancei</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Individual Needs
Individual Lassics lupines occur on gravelly, shallow serpentine or
clastic soils that are relatively free of competing vegetation. It is
unknown if soil microbes are necessary for germination of seeds, but
increased germination success and plant vigor has been described in
trials with native soil (presumably populated with soil microbes) from
the Lassics (Guerrant 2007, pp. 14-15). Cross-pollination between
Lassics lupine individuals is dependent on pollination by bees
(Crawford and Ross 2003, entire).
Plants need a sufficient amount of sunlight and moisture. A
sufficient amount of insolation (the amount of solar radiation reaching
a given area) is necessary for Lassics lupine to reproduce, with
increased vigor being documented in areas with higher insolation.
However, too much insolation leads to decreased soil moisture. Plants
typically occur either on north aspects, which provide orographic
shading (when an obstacle, in this case a mountain peak, blocks solar
radiation for at least part of day based on aspect), or on south
aspects with some shading from nearby trees. Available soil moisture
throughout the growing season is important for Lassics lupine to
reproduce and to avoid desiccation.
In summary, individual Lassics lupine plants require native,
shallow serpentine or clastic soils; a suitable range of solar
insolation; sufficient moisture throughout the growing season; and
access to pollinators (Service 2023, table 3.2).
Population Needs
To be adequately resilient, populations of Lassics lupine need
sufficient numbers of reproductive individuals so that they are able to
withstand stochastic events (expected levels of variation in
environmental or demographic characteristics). For example, populations
must be large enough to withstand annual variation in moisture levels
that may cause mortality to some individuals. A minimum viable
population (MVP) has not yet been calculated for Lassics lupine.
However, we do know that the current population sizes are too small to
withstand current rates of seed predation without significant
management efforts, based on negative population growth rates and high
probabilities of quasi-extinction (a population collapse that is
predicted to occur when the population size reaches some given lower
density, defined as 10 or fewer adult plants for the Lassics lupine)
across all sites without significant management efforts (Kurkjian et
al. 2017, entire).
In the SSA report, we estimated MVP for Lassics lupine by
comparison to surrogate species (species with similar life histories).
Based on our analysis (Service 2023, table 3.1), we suggest an
estimated MVP in the intermediate range (250 to 1,500 individuals)
would be a sufficient number to withstand stochastic events. This
provisional MVP range will be revised in the future if accumulated data
allow a more precise calculation.
Sufficient annual seed production and seedling establishment is
necessary to offset mortality of mature Lassics lupine plants within a
population. Because large individuals produce more seed (Kurkjian
2012a, entire), their loss could have detrimental effects on the
overall population. Sensitivity analyses across all sites demonstrated
that survival and growth of reproductive plants had the most influence
on population growth rate, followed by vegetative plants and seeds, and
then seedlings (Kurkjian et al. 2017, p 867). Cross-pollination between
Lassics lupine individuals presumably contributes to genetic exchange
within and between populations and subpopulations, and is dependent on
sufficient abundance and diversity of pollinators (Crawford and Ross
2003, entire).
Gravelly or rocky habitat that is relatively free of forest
encroachment and other vegetative competition is important for
population persistence. Historically, these serpentine barrens were
shaped by geologic forces and presumably kept free of forest and shrub
encroachment by fire, perhaps both natural and anthropogenic. With a
reduced fire frequency compared to historical levels, this habitat is
susceptible to encroachment by native successional species such as
Jeffrey pine, incense cedar (Calocedrus decurrens), and pinemat
manzanita (Arctostaphylos nevadensis) (Carothers 2008, entire). Lassics
lupine requires relatively open canopy and limited competition from
other plants for the limited moisture available during the growing
season (Imper 2012, p. 142).
Species Needs
In order for the Lassics lupine to sustain itself in the wild over
time, it should have a sufficient number (redundancy) of secure,
sustainable populations (resiliency) that are well-distributed
throughout its geographic range and throughout the variety of
ecological settings in which the species is known to exist
(representation). Suitable habitat must be available, and the number
and distribution of adequately resilient populations must be sufficient
for the species to withstand catastrophic events.
The historical extent and distribution of Lassics lupine is not
precisely known. The species was possibly more abundant and more
widespread in the past, although historical population boundaries are
unknown. A comparison of soils from areas occupied by Lassics lupine to
nearby areas that appear similar, but are not occupied, indicated that
there are few sites that meet the species' specific soil requirements
(Imper 2012, p. 27). This suggests that the distribution was not
significantly more widespread than it is now, although vegetation
encroachment has affected areas adjacent to and edges of the extant
populations and there has been retraction of population boundaries of
up to 20-30 percent in recent years (Service 2023, figure 4.2; Imper
and Elkins 2016, pp. 16-18). Given the specialized adaptations to the
harsh environment it occupies currently, it is unlikely that Lassics
lupine ever occurred in a diverse range of ecological requirements, and
the current distribution is likely a reflection of complex geological
processes that shaped the Lassics Range. Additionally, it is unclear
whether the species maintains sufficient genetic variability to persist
under changing environmental conditions.
Threats
In this final rule, we discuss those threats in detail that could
meaningfully impact the status of the species, including six threats
analyzed in the SSA report for the Lassics lupine (Service 2023,
entire): vegetation encroachment (Factor A), seed predation and
herbivory (Factor C), fire (Factor A), climate change effects (Factor
E), and invasive species (Factor A). We also evaluate existing
regulatory
[[Page 69080]]
mechanisms (Factor D) and ongoing conservation measures.
In the SSA, we also considered the following threats:
overutilization due to commercial, recreational, educational, and
scientific use (Factor B); disease (Factor C); and recreation (Factor
E). We concluded that, as indicated by the best available scientific
and commercial information, these threats are currently having little
to no impact on the Lassics lupine, and thus their overall effect now
and into the future is expected to be minimal. Therefore, we will not
present summary analyses of those threats in this document, but we
considered them in our overall assessment of impacts to the species.
For full descriptions of all threats and how they impact the species,
please see the SSA report (Service 2023, pp. 22-33).
We note that, by using the SSA framework (Service 2016, entire) to
guide our analysis of the scientific information documented in the SSA
report, we have not only analyzed individual effects on the species,
but we have also analyzed their potential cumulative effects. We
incorporate the cumulative effects into our SSA analysis when we
characterize the current and future condition of the species. To assess
the current and future condition of the species, we undertake an
iterative analysis that encompasses and incorporates the threats
individually and then accumulates and evaluates the effects of all the
factors that may be influencing the species, including threats and
conservation efforts. Because the SSA framework considers not just the
presence of the factors, but to what degree they collectively influence
risk to the entire species, our assessment integrates the cumulative
effects of the factors and replaces a standalone cumulative effects
analysis.
Vegetation Encroachment
Lassics lupine's density and vigor are highest in areas with
sufficient insolation and when relatively free of competition for light
and water (Imper 2012, p. 140). Since the 1930s, forest and chaparral
vegetation communities in the range of the Lassics lupine have expanded
in both distribution and density (Carothers 2017, entire; Service 2023,
figures 4.1 and 4.2). On the north slope of Mount Lassic, Jeffrey pine
and incense cedar have expanded; on the south slope of Mount Lassic,
chaparral has matured and become more dense (Carothers 2017, p. 2).
Increased distribution of the forest and chaparral communities in the
areas surrounding Lassics lupine populations over the last 90 years may
be due to fire suppression (Carothers 2017, entire). Based on suitable
soil types and aspect, the north slope of Mount Lassic may have
supported Lassics lupine in the past, connecting the three
subpopulations that currently make up the Mount Lassic population.
The effects of vegetation encroachment on Lassics lupine
populations are twofold. There is a subsequent increase in canopy cover
and leaf litter, which reduces habitat suitability. There is also an
increase in seed predators, which decreases fecundity. With an increase
in the distribution and density of trees on the north slope of Mount
Lassic, there is a subsequent increase in canopy cover and reduced
insolation. Available soil moisture has been shown to decrease more
rapidly in forested areas in the spring and summer (Imper 2012, p.
140). Additionally, these areas are now covered in a dense layer of
leaf litter and forest duff, which may suppress the germination of
Lassics lupine seeds and increase the risk of catastrophic fire by
providing fuel in otherwise barren areas that likely burned at low
severity in the past (Carothers 2017, p. 4; Imper 2012, pp. 139-140).
Overall, vegetation encroachment influences fecundity, habitat
quality, and survival throughout the range of the species and
especially on the edges of the Mount Lassic population. Ultimately,
vegetation encroachment has a strong influence on the amount of
available habitat and limits current population sizes of the Lassics
lupine. We expect that vegetation encroachment on occupied Lassics
lupine habitat will continue to increase into the future.
Seed Predation and Herbivory
Seed predation by small mammals is one of the most influential
threats to Lassics lupine (Crawford and Ross 2003, p. 4; Kurkjian et
al. 2017, p. 862). This threat has been observed and documented at
significant levels since monitoring began in 2001. Pre-dispersal seed
predation (removal of seeds while they are still attached to the plant,
resulting in seed mortality) was first observed at high rates, with 72
percent of observed inflorescences suffering from almost complete
predation (n=67; Crawford and Ross 2003, p. 3). Seed predation has been
shown to have severe impacts on small or rare plant populations,
including Lassics lupine (Dangremond et al. 2010, p. 2261; Kurkjian et
al. 2017, entire). Since 2005, monitoring of small mammal populations
has been conducted annually. Several species have been identified as
Lassics lupine seed consumers, primarily deer mice (Peromyscus spp.),
chipmunks (Tamias spp.), and the California ground squirrel
(Otospermophilus beecheyi).
For other species, increased risk of seed predation has been
demonstrated to be higher in areas close to vegetation (Myster and
Pickett 1993, p. 384; Notman et al. 1996, p. 224; McCormick and Meiners
2000, p. 11; Dangremond et al. 2010, entire). Over the past 20 years,
research on Lassics lupine habitat has demonstrated that small mammal
seed predators are most abundant in the chaparral habitat, followed by
bare serpentine habitat, with the lowest abundance documented in the
forest habitat (CDFW 2018, appendix B). There is a high probability of
movement between the chaparral and serpentine communities and an
intermediate probability of movement between the forest and serpentine
communities (Cate 2016, pp. 36-40). The proximity of vegetated
communities to the serpentine barrens likely provides shelter and food
for seed predators, and there is an increased likelihood that seeds
adjacent to chaparral habitats will be subject to increased pre-
dispersal seed predation (Kurkjian 2011, pp. 2-3). Studies of seed
production in 2010 and 2011 estimated that only 2 to 5 percent of
Lassics lupine seed escaped predation (Kurkjian 2012a, pp. 14-15).
A population viability analysis (PVA) has shown that pre-dispersal
seed predation has the potential to drive Lassics lupine to extinction
(Kurkjian 2012b, entire; Kurkjian et al. 2017, entire). Without
factoring in the potential effects of other threats or catastrophic
events, the PVA estimates that the probability of quasi-extinction
(defined as 10 or fewer adult plants) in the next 50 years is between
68 and 100 percent and is very likely to occur within the first 20
years. If all reproductive plants are caged, preventing seed predation,
the probability of quasi-extinction is reduced to between 0.0 and 1.8
percent over the next 50 years (Kurkjian et al. 2017, pp. 867-868).
This research demonstrates the significant influence that pre-dispersal
seed predation has on the species and emphasizes the importance of
caging reproductive plants until seed predation can be addressed by
other means. Post-fire small mammal monitoring and seed surrogate
trials suggest that pre-dispersal seed predation risk decreased in the
first 2 years following the 2015 Lassics Fire, as small mammal density
declined in some areas. This effect appeared to be transient.
After observations of unusually high pre-dispersal seed predation
rates, Six Rivers National Forest and Service staff made the decision
to start caging
[[Page 69081]]
reproductive Lassics lupine plants in 2003. Cages are generally
deployed in May or June around accessible adult plants. Cages are
constructed of various types of wire mesh and are designed to allow
pollinators to access flowers, while simultaneously preventing seed
predators and herbivores from accessing adult plants. Cages are removed
after seeds are released and before winter snow prevents access to the
site. Caging has occurred at various levels, and after severe
population declines in 2015, it was expanded to include a majority of
reproductive individuals. This expanded caging effort has been credited
with the positive overall population trends since 2016 (Service 2023,
figure 5.3).
Herbivory of flowers and vegetation has also been observed during
annual demographic monitoring and on cameras placed near plants to
document the suite of predators; in some instances, herbivores consume
entire plants or excavate the plant to a sufficient depth to cause
death (CDFW 2018, p. 24). While the observation of these events has
been rare, so are the opportunities to observe such events. In some
years, there has been documentation of 1 to 3 plants per year being
removed entirely through herbivory. Given the frequency of observed
herbivory, the overall impact to populations is unknown.
In summary, seed predation is affecting the reproduction of the
Lassics lupine across its range, which in turn influences population
size and viability. This is having species-level effects and is
mitigated by annual efforts to cage individual Lassics lupine plants to
prevent small mammal seed predators from accessing mature fruits (see
Conservation Efforts and Regulatory Mechanisms, below, for more
information). Seed predation, likely influenced by vegetation
encroachment, is a significant influence on Lassics lupine viability
and may increase into the future as vegetation encroachment increases.
However, the effects of seed predation are being reduced due to ongoing
conservation efforts.
Fire
Historical fire return intervals in the Lassics Range are unknown
but have been estimated to be approximately every 12.7 years across the
Mad River Ranger District of Six Rivers National Forest (Carothers
2017, p. 4) and every 20 years across the range of Jeffrey pine,
although they may be longer for relatively open stands with reduced
fuels, such as serpentine barrens similar to where Lassics lupine
populations occur (Munnecke 2005, p. 2). There is little recorded
information regarding fire history prior to the 1900s, although prior
to 1865, local Tribes in the general area used fire with some
regularity to manage the understory (Carothers 2017, p. 4).
A total of 18 fires have been recorded in the Lassics Botanical and
Geologic Area between 1940 and 2014, with 71 percent under 5 acres (ac)
(2 hectares (ha)) in size (Carothers 2017, p. 5). Most of these were
caused by lightning and were largely fought by small crews using hand
tools. A thorough analysis of historical and current fire regimes on
National Forest lands in California demonstrated a significant decline
in fire frequency in northwestern California since 1908 (Safford and
Van de Water 2014, entire). Fire return intervals are estimated to have
declined by 70 to 80 percent within the Lassics Botanical and Geologic
Area (Carothers 2017, p. 7). These results indicate that fire intervals
are shorter, and fire is less frequent in the Lassics Range than it was
prior to fire suppression.
The Lassics Fire, which was caused by lightning and centered on
Mount Lassic, burned roughly 18,500 ac (7,490 ha) in August 2015. The
fire burned at high severity through the chaparral on the south side of
Mount Lassic and through the entire Red Lassic population. The forested
area on the north side of Mount Lassic burned at mixed severity, and
areas dominated by serpentine barrens burned at low severity. The
Lassics Fire caused direct mortality of many individuals, killing all
individuals at Red Lassic, and a portion of individuals at Mount
Lassic. Additionally, at Red Lassic, the fire killed the Jeffrey pine,
which appear critical to survival of Lassics lupine individuals there
for the shade they provide (Imper 2012, pp. 138-139). As of 2019, these
trees were still standing and providing some shade but are at risk of
falling over, which would reduce shade and potentially cause direct
mortality of plants beneath them. The fire did not burn at a high
enough severity to reduce the density or distribution of Jeffrey pine
in the forested area north of Mount Lassic. The chaparral area on the
south side of Mount Lassic burned at high severity and reduced the
canopy cover of these species temporarily; however, those areas have
since resprouted and the vegetation is returning rapidly, along with an
invasive grass that is known to follow fire.
In 2016, the year following the fire, there was a substantial flush
of Lassics lupine seedlings observed across all sites. Given the
mortality of all adults in the Lassic Fire at Red Lassic, we know that
all the seedlings at Red Lassic were the result of germination from the
soil seed bank. Seed bank germination also contributed significantly to
the population at Mount Lassic, where the fire effects were patchier.
It is unknown what effect this level of germination had on the number
of seeds remaining in the soil seed bank.
In summary, future fires could have both positive and negative
effects on Lassics lupine individuals and populations, depending on
severity. Fires that eliminate or reduce encroaching vegetation could
have positive effects due to a reduced abundance of small mammal seed
predators and increased habitat suitability where insolation and
available soil moisture are limited. Mixed and high severity fires have
the potential to kill vegetative and adult plants and potentially
reduce the seed bank. Fire is a significant influence on the viability
of the Lassics lupine.
Climate Change
Observed changes in the climate system indicate that the surface of
the earth is getting warmer, and the amounts of snow and ice have
diminished (International Panel on Climate Change (IPCC) 2014, p. 2).
These changes have been occurring for decades, and the last three
decades have been successively warmer than any prior decade since 1850
(IPCC 2014, p. 2). The Fifth Assessment Report of the IPCC reported
with very high confidence that some ecosystems are significantly
vulnerable to climate-related extremes such as droughts and wildfires
(IPCC 2014, p. 8). Average annual temperatures in California have risen
by approximately 2 degrees Fahrenheit ([deg]F) in the last 100 years
(Frankson et al. 2017, p. 4). Projections indicate that warming trends
in the western United States will continue and likely increase while
projections of future precipitation are less conclusive (Dettinger et
al. 2015, p. 2088). Even if precipitation increases in the future, as
many models indicate, temperature rises will decrease snowpack duration
and increase the rate of soil moisture loss during dry spells, further
reducing the water available in the soil (Kim et al. 2002, pp. 5-7;
Frankson et al. 2017, p. 4). This is expected to increase not only the
frequency and duration of droughts but also the frequency and severity
of wildfires (Frankson et al. 2017, p. 4).
Snowmelt date, summer precipitation, and late summer temperatures
all appear to be affecting the distribution, mortality, reproduction,
and recruitment of Lassics lupine (Imper 2012, entire). Survival of
Lassics lupine
[[Page 69082]]
tends to be lower in years when snowpack melts early, particularly if
it is not followed by summer rain (Imper 2012, p. 143). The average
snow fall is projected to decrease with rising temperatures, reducing
water storage in the snowpack (Frankson et al. 2017, p. 4). Desiccation
is a common form of death for this plant that lives in shallow soils on
exposed mountaintops. Low rainfall and high temperatures in the summer
have detrimental effects at a population level.
Climate data collected since 2005 at the Zenia Forest Service Guard
Station, roughly 15 km (9.5 mi) southeast of the Lassics and 460-520 m
(1,500-1,700 ft) lower in elevation, show that annual average
temperatures have been increasing (California Data Exchange Center
2021, unpaginated). This increase in annual temperature has the
potential to negatively influence Lassics lupine by reducing the amount
and duration of snowpack in the winter as well as increasing mortality
due to desiccation during the summer.
When extreme weather events occur, the entire species is affected
due to its limited geographic range. Climate change increases the
likelihood of such extreme events now and into the future.
Additionally, because Lassics lupine already occurs on the highest
peaks in the area, there is no habitat at higher elevations available
for Lassics lupine to move into as climatic conditions at lower
elevations become unsuitable, nor are there additional populations
spread throughout the landscape to help the species recover from these
events.
Climate change is influencing individual survival and overall
population sizes rangewide. Climate change, through increasing
temperatures and reduced snowpack, is a significant influence on the
viability of Lassics lupine.
Invasive Species
Cheatgrass (Bromus tectorum) is a highly invasive species that
occurs throughout most of North America and is most prominent and
invasive in the Rockies, Cascades, and Sierra Nevada mountain ranges
(Zouhar 2003, unpaginated). It is well-adapted to frequent fires, often
emerging as a strong competitor in a post-fire environment and can
increase the frequency of fires by creating a highly flammable
environment (Zouhar 2003, unpaginated). Another way cheatgrass alters
the environment is by adding nitrogen and creating a positive feedback
loop that promotes dominance of cheatgrass (Stark and Norton 2015, p.
799). Additionally, input of nitrogen into serpentine ecosystems can
alter the ability of the native plant community to resist invasion
(Going et al. 2009, p. 846).
Serpentine soils are more resistant to invasion by nonnative plant
species than the communities found in adjacent matrix soils (Going et
al. 2009, p. 843); however, nonnative plant species can become more
prevalent on small patches of serpentine, particularly where patches of
serpentine are small or fragmented (Harrison et al. 2001, p. 45). Thus,
the presence of cheatgrass could make the Lassics lupine population at
Mount Lassic more vulnerable to secondary invasions.
Previously, nonnative, invasive plants have not been reported as a
threat to Lassics lupine in monitoring reports provided by the U.S.
Forest Service (USFS) (Carothers 2019 and Carothers 2020, entire), the
petition to list (Imper et al. 2016, entire), or the status review
conducted by CDFW (2018, entire). However, field observations made by
Service staff indicate that cheatgrass is present adjacent to the Mount
Lassic population and the invasion has increased in recent years
(Service 2023, figure 4.4; Hutchinson 2020, field observation). Dense
stands of cheatgrass were also noted in 2019 and 2020, in the vicinity
of the Mount Lassic population, but not within the population itself
(Hutchinson 2020, field observation). Other Bromus spp. have been
documented on serpentine soils, with an increased prevalence along
edges of small patches of serpentine (Harrison et al. 2001, p. 45).
In general, nonnative, invasive plant species compete with native
species for resources such as sunlight, water, and nutrients. While
there is no evidence that cheatgrass is currently competing with
Lassics lupine for these basic resource needs, the presence of this
highly invasive species near the largest population is a concern
because it could increase the frequency of fires in the area, add
nitrogen to the soils, and increase the likelihood of invasion by other
nonnative species. Currently, invasive species (particularly
cheatgrass) are increasing in the areas adjacent to the Mount Lassic
population and could influence fire severity but are not currently
impacting Lassics lupine's viability. However, the impact of invasive
species could increase in the future.
Conservation Efforts and Regulatory Mechanisms
The Lassics lupine was listed as endangered in 2019 by the
California Fish and Game Commission (CFGC 2019, entire). State listing
of the Lassics lupine ensures, among other things, that individuals
conducting research that involves handling of the plant or plant
material, including seeds, must be authorized under the California Fish
and Game Code at section 2081(a). Additionally, projects that might
impact the plant must be evaluated for significance under the
California Environmental Quality Act. The California Native Plant
Society (CNPS) categorizes this species as a California Rare Plant with
a rank of 1B.1, meaning that it is rare, threatened, or endangered in
California and elsewhere, and is seriously endangered in California. It
has a State rank of S1, defined as critically imperiled or at very high
risk of extinction due to extreme rarity, and a global rank of G1,
meaning critically imperiled (CNPS 2021, unpaginated).
Both the Red Lassic and Mount Lassic populations are within the
Lassics Botanical and Geologic Area of Six Rivers National Forest.
Management of unique botanical features is directed by the Special
Interest Management Strategy with a goal of managing for rare species
and the natural processes that support them (U.S. Department of
Agriculture (USDA) 1998, entire). Additionally, the Mount Lassic
population, and 2,833 ha (7,000 ac) of the Mount Lassic Range, is
within the Mount Lassic Wilderness Area, part of the Northern
California Coastal Wild Heritage Wilderness Act of 2006 (Pub. L. 109-
362, October 17, 2006, 120 Stat. 2064). Designation as wilderness
affords protection from most direct anthropogenic threats except from
trampling from foot traffic and illegal off-highway vehicle (OHV) use.
Additionally, Lassics lupine is designated a sensitive species by the
Six Rivers National Forest, meaning that management decisions made by
the Forest will not result in a trend towards Federal listing or loss
of viability (USDA 1997, entire).
A conservation strategy has been signed by the Six Rivers National
Forest and is focused on Lassics lupine monitoring and research, as
well as potential conservation actions for the species. This strategy
does not currently include a commitment to allocate funds for
conservation actions, but does outline goals and objectives, documents
studies and management efforts to date, and identifies key actions that
should be initiated or continued. Management efforts proposed in the
strategy include continued caging of reproductive plants, continued
monitoring, investigating the role of fire in population viability,
continued seed banking and propagation efforts, and experimental
prescribed burning (USDA 2020a, entire). Caging of reproductive plants
[[Page 69083]]
currently requires a substantial commitment of time from Service staff,
Six Rivers National Forest staff, and volunteers. Changes in staff and
available resources mean that implementation has fluctuated in the past
and this could continue into the future.
Attempts to augment the populations or establish populations in
nearby areas with similar soil types have been largely unsuccessful.
Additionally, seed is banked in two locations: 74 seeds have been
deposited at the Berry Botanic Garden in Portland, Oregon, and 439
seeds have been deposited at the National Laboratory for Genetic
Resource Preservation (NLGRP) in Fort Collins, Colorado. The
conservation strategy and the Six Rivers National Forest will
prioritize augmenting the collection at NLGRP (USDA 2020b, p. 1).
Species Condition
To assess the current condition of the Lassics lupine, we used
recent monitoring data and results from the recent PVA (Kurkjian et al.
2017, entire) to score the current condition of each analysis unit
based on our assessment of habitat and demographic variables. For each
analysis unit, we assess habitat quantity, habitat quality, and
abundance of Lassics lupine.
Habitat variables were categorized using largely qualitative
information while demographic variables were analyzed quantitatively,
which corresponds with the best available information for each
variable. Each variable in an analysis unit was assigned a current
condition of high, moderate, or low (Service 2023, table 5.1). The
average score was then used to rate the overall current condition of
each analysis unit. When a score fell between two condition categories,
the overall current condition was assigned consistent with the
condition of the majority of the parameters. In other words, if two of
the three parameters were low and one was moderate, the overall
condition was rated as low. A population that is in low condition is
one where resources are in overall low condition. A similar definition
applies to moderate and high conditions.
Habitat quantity is a description of the relative size of available
habitat based on both available soil type information and the amount of
habitat available compared to historical conditions. This information
was qualitatively scored based on the most recently available site
observations. Because Lassics lupine has likely always been narrowly
restricted, we chose not to assess the total area occupied by each
analysis unit but rather to look at the relative size of each analysis
unit. Furthermore, because Lassics lupine is highly influenced by
vegetation encroachment (habitat that supports pre-dispersal seed
predators), we also considered the amount of habitat available
currently compared with historical habitat availability based on aerial
photographs.
Habitat quality is a description of the solar insolation,
influenced by aspect and canopy cover, for each analysis unit. Because
solar insolation directly influences available soil moisture, and both
influence the survival and vigor of Lassics lupine individuals and
populations, we used solar insolation as a surrogate to describe
habitat quality. The Lassics lupine demonstrates higher fecundity and
vigor in areas with a suitable range of solar insolation. Areas with
suitable solar insolation are defined as either occurring on the north
aspect of a slope (most areas in the Mount Lassic population) or are
located nearby within moderately open canopy Jeffrey pine forests where
trees provide some shade. Suboptimal areas are those with either
slightly too much shading or slightly too little shading, and
unsuitable areas are those without any shading from either orographic
cover or adjacent trees. Areas within a suitable range of solar
insolation conditions were defined as ``high'' condition, areas within
a suboptimal range of solar insolation as ``moderate'' condition, and
unsuitable areas as ``low'' condition. This information was also
qualitatively scored based on recent site observations.
Abundance is often used as a metric to assess the overall status of
plant species. Abundance data represent the total number of adult
vegetative and reproductive plants present in each analysis unit.
Abundance categories were defined as ``low'' (fewer than 100 plants),
``moderate'' (100 to 500 plants), and ``high'' (more than 500 plants).
These rating categories were derived using the estimated overall MVP
adapted from Pavlik (1996, p. 137). Rather than use abundance data from
one year, we report a range of years that reflects the range observed
from data collected during annual monitoring from 2015-2022 by Six
Rivers National Forest staff and volunteers (see chapter 5 of the SSA
report for more details). We considered that abundance is significantly
higher than it would be without the current practice of caging a large
portion of adult plants each year. Caging has occurred at some level
since approximately 2003, with the percentage of caged plants
increasing gradually over time; current caging levels vary from 60-100
percent, varying between population and year.
We assessed the two populations (Red Lassic and Mount Lassic) as
delineated by CNDDB, which defines populations as groups of individual
plants that are separated by approximately 0.4 km (0.25 mi). We then
further considered three subpopulations of the Mount Lassic population
for a total of four analysis units, three of which are subpopulations
of Mount Lassic (i.e., Saddle, Terrace, and Forest) and one of which is
the Red Lassic population. There are also Lassics lupine plants outside
of the transects we analyzed. These individuals largely occur on steep
slopes that are not accessible to surveyors without causing significant
erosion or damage to plants and surveys are generally conducted with
binoculars in order to avoid disturbing the soil.
The results of our analysis are presented in table 1 below, and
additional detail on populations, analysis units, and individuals
outside those units is available in the SSA report (Service 2023, pp.
36-39)
Table 1--Current Condition Data for Each Analysis Unit With Overall Current Condition Summarized
----------------------------------------------------------------------------------------------------------------
Abundance
Habitat quantity Habitat quality range (mean) Overall current condition
----------------------------------------------------------------------------------------------------------------
Red Lassic............... Relatively small, Unsuitable (south 0-320 (129) Low.
reduced from aspect without tree
historical amounts. cover).
Saddle................... Relatively Suitable solar 14-284 (184) Moderate.
moderately-sized, insolation.
but reduced from
historical amounts.
Terrace.................. Relatively small, Suitable solar 33-135 (79) Low.
reduced from insolation.
historical amounts.
[[Page 69084]]
Forest................... Relatively small, Suboptimal (north 12-85 (48) Low.
reduced from aspect combined
historical amounts. with moderate
canopy).
----------------------------------------------------------------------------------------------------------------
Having assessed the current condition of the two known populations,
we now consider the resiliency, redundancy, and representation of the
Lassics lupine. In total, two of the three subpopulations of the Mount
Lassic population are considered in low overall current condition, and
one is in moderate overall current condition. As described above, our
abundance metric spans a range of years and demonstrates fluctuations
in numbers of flowering plants. Also, as described above under Species
Needs, current population sizes are too small to withstand current
rates of seed predation without significant management efforts. Most
species' populations fluctuate naturally, responding to various factors
such as weather events, disease, and predation. These factors have a
relatively minor impact on species with large, stable local populations
and a wide and continuous distribution. However, populations that are
small, isolated by habitat loss or fragmentation, or impacted by other
factors are more vulnerable to extirpation by natural, randomly
occurring events (such as predation or stochastic weather events), and
to genetic effects that impact small populations (Purvis et al. 2000,
p. 1949). Small populations are less able to recover from random
variation in their population dynamics and environment (Shaffer and
Stein 2000, pp. 308-310), such as fluctuations in recruitment
(demographic stochasticity), variations in rainfall (environmental
stochasticity), or changes in the frequency of wildfires.
While some analysis units have high to moderate habitat quality,
the overall current conditions are driven by small population sizes and
a limited amount of available habitat. The Red Lassics population is
also in overall low current condition. Resiliency is low for both
populations.
With regard to redundancy, there are currently close to 800 Lassics
lupine adult plants existing in two populations in a roughly 1-square-
kilometer area. One of the populations is in overall low condition
while the other population is comprised of three subpopulations of
which two are in low condition and one is in moderate condition. When
considering the overall condition of the Mount Lassic population (the
three subpopulations plus plants outside of the transects), it is still
in overall low condition. Our analysis of redundancy concludes that
both populations are in low resiliency and a single catastrophic event
could heavily impact both populations even though the populations are
well-distributed throughout the species' historical range. Thus,
species redundancy is reduced from the historical condition.
With regard to representation, as a narrow endemic, the Lassics
lupine is highly specialized and restricted to its ecological niche.
Suitable habitat is narrowly distributed on mountaintops and is
becoming increasingly limited due to encroachment of forest and
chaparral vegetation. Both populations share similar features, with the
differences being largely related to the aspect on which each is
positioned and amounts of canopy cover and corresponding isolation and
soil moisture. Both populations are susceptible to seed predation and
vegetation encroachment. The best available data do not indicate any
potential genetic differentiation across the range of the species, and
representation units correspond with our analysis units, which
generally align with different ecological settings. Although
populations and subpopulations of the species remain extant across each
of the ecological settings, resiliency is low for both populations.
Representation is not only gauged by ecological and genetic
diversity, but also by the species' ability to colonize new areas.
Currently, populations of Lassics lupine are small and isolated by
tracts of unsuitable habitat. The lack of connectivity between
populations and overall small size may result in reduced gene flow and
genetic diversity, rendering the species less able to adapt to novel
conditions. Further, the lack of available and unoccupied suitable
habitat leaves less opportunity for an adaptable species to exploit new
resources outside of the area it currently occupies. Thus, while
ecological diversity is generally low for this highly specialized
species, the limited availability of unoccupied habitat in suitable
condition also likely limits the potential for this species to adapt to
environmental changes.
As mentioned previously, quantitative data on habitat condition
could be misleading for a narrow endemic, so we relied on qualitative
assessments relative to historical availability of habitat and the
expert opinion of those familiar with the populations as the best
scientific data available. Detailed genetic information is not
available for this species, nor do we know the minimum number of
individuals that would be required to sustain a population, or the
minimum number of populations required to sustain the species.
Nonetheless, the evidence that does exist points to a species that is
heavily impacted by variable weather patterns and by high rates of seed
predation, likely exacerbated by vegetation encroachment.
Future Condition
As part of the SSA, we also developed three future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the Lassics lupine. Our
scenarios examined possible future impacts of seed predation, climate
change, and fire. Because we determined that the current condition of
the Lassics lupine was consistent with an endangered species (see
Determination of Lassics Lupine's Status, below), we are not presenting
the results of the future scenarios in this final rule. Please refer to
the SSA report (Service 2023, pp. 42-50) for the full analysis of
future scenarios.
Determination of Lassics Lupine's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The
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Act requires that we determine whether a species meets the definition
of endangered species or threatened species because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status Throughout All of Its Range
In this final rule, we present summary evaluations of six threats
analyzed in the SSA report for the Lassics lupine (Service 2023,
entire): vegetation encroachment (Factor A), seed predation and
herbivory (Factor C), fire (Factor A), climate change effects (Factor
E), and invasive species (Factor A). We also evaluate existing
regulatory mechanisms (Factor D) and ongoing conservation measures.
In the SSA, we also considered the following additional threats:
overutilization due to commercial, recreational, educational, and
scientific use (Factor B); disease (Factor C); and recreation (Factor
E). We concluded that, as indicated by the best available scientific
and commercial information, these threats are currently having little
to no impact on the Lassics lupine, and thus their overall effect now
and into the future is expected to be minimal. However, we consider
them in our determination of status for the Lassics lupine, because
although these minor threats may have low impacts on their own,
combined with impacts of other threats, they could further reduce the
already low number of Lassics lupine plants.
For full descriptions of all threats and how they impact the
species, please see the SSA report (Service 2023, pp. 22-33).
Based on historical records, it appears that the Lassics lupine has
always had a limited range. However, in recent decades, the species has
experienced a reduction of its range. As woody vegetation encroachment
(Factor A) has affected occupied Lassics lupine habitat, the population
of small mammals has increased, resulting in pre-dispersal seed
predation (Factor C) that has affected up to 95 percent of flowering
plants. Ongoing efforts to cage all adult plants have greatly reduced
the magnitude of pre-dispersal seed predation, and our assessment of
population abundance and habitat quality for the species from recent
surveys indicates that the Lassics lupine population size is relatively
stable. While population levels are currently stable, given the high
rates of seed predation documented prior to caging (up to 95 percent of
seeds consumed pre-dispersal), they would not be stable without the
annual effort of caging individual plants. Caging is not guaranteed to
continue and requires significant investment of time and resources
twice per year to implement. Additionally, habitat quantity and quality
are reduced compared to historical levels with the remaining
populations being small in size and occupying a small area. The current
abundance and recruitment levels are sustained only through management
actions, specifically caging of a large proportion of reproductive
individuals.
In recent years, fire (Factor A) impacted the Red Lassic
population, killing both individual Lassics lupine plants and the
overstory that was providing necessary shade to the species. Any future
mixed- or high-severity fire could provide further loss of adult
Lassics lupine plants and damage the habitat features necessary for
their survival. Additionally, earlier snowmelt date, reduced summer
precipitation, and higher summer temperatures associated with climate
change (Factor E) have resulted in a loss of soil moisture in the
shallow soils where the Lassics lupine is found. Further, invasive
species (Factor A) are encroaching near Lassics lupine populations,
although the magnitude of this threat is currently low.
Under the current condition, the Lassics lupine remains distributed
throughout its historical range, but resiliency is low for both
populations and across all ecological settings. Overall current
condition is ranked as low in three of the four analysis units.
Although representation is maintained at current levels throughout the
range, population resiliency and species redundancy are both low,
especially as compared to historical conditions. The current small size
of Lassics lupine populations makes the species less able to withstand
the threats that are currently impacting the species.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that the Lassics lupine is currently facing high-
magnitude threats from vegetation encroachment, pre-dispersal seed
predation, fire, and reduced soil moisture associated with ongoing
effects of climate change. Although ongoing management actions are
helping to reduce the magnitude of seed predation, the majority of
Lassics lupine individuals are concentrated in a single population that
has a reduced ability to withstand both catastrophic events and normal
year-to-year fluctuations in environmental and demographic conditions.
These threats are impacting the species now. Thus, after assessing the
best available information, we determine that the Lassics lupine is in
danger of extinction throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Lassics lupine is in danger of
extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portions of its range. Because
the Lassics lupine warrants listing as endangered throughout all of its
range, our determination does not conflict with the decision in Center
for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020),
because that decision related to significant portion of the range
analyses for species that warrant listing as threatened, not
endangered, throughout all of their range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Lassics lupine meets the Act's
definition of an endangered species. Therefore, we are listing the
Lassics lupine as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and
[[Page 69086]]
threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Recovery teams (composed of
species experts, Federal and State agencies, nongovernmental
organizations, and stakeholders) are often established to develop
recovery plans. When completed, the recovery outline, draft recovery
plan, and the final recovery plan will be available on our website
(<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Arcata
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Once this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the State of California will be
eligible for Federal funds to implement management actions that promote
the protection or recovery of the Lassics lupine. Information on our
grant programs that are available to aid species recovery can be found
at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Please let us know if you are interested in participating in
recovery efforts for the Lassics lupine. Additionally, we invite you to
submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency (action agency) must enter into consultation with us.
Federal agency actions within the species' habitat that may require
consultation as described in the preceding paragraph include management
and any other landscape-altering activities on Federal lands
administered by the USFS (Six Rivers National Forest).
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered plants.
The prohibitions of section 9(a)(2) of the Act, codified at 50 CFR
17.61, make it illegal for any person subject to the jurisdiction of
the United States to import or export; remove and reduce to possession
from areas under Federal jurisdiction; maliciously damage or destroy on
any such area; remove, cut, dig up, or damage or destroy on any other
area in knowing violation of any law or regulation of any State or in
the course of any violation of a State criminal trespass law; deliver,
receive, carry, transport, or ship in interstate or foreign commerce,
by any means whatsoever and in the course of a commercial activity; or
sell or offer for sale in interstate or foreign commerce an endangered
plant. Certain exceptions apply to employees of the Service, other
Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered plants under certain circumstances. Regulations
governing permits for endangered plants are codified at 50 CFR 17.62.
With regard to endangered plants, a permit may be issued for scientific
purposes or for enhancing the propagation or survival of the species.
The statute also contains certain exemptions from the prohibitions,
which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify, to the extent known at the time a
species is listed, specific activities that will not be considered
likely to result in violation of section 9 of the Act. To the extent
possible, activities that will be considered likely to result in
violation will also be identified in as specific a manner as possible.
The intent of this policy is to increase public awareness of the effect
of a final listing on proposed and ongoing activities within the range
of a listed species. As discussed above, certain activities that are
prohibited under section 9 may be permitted under section 10 of the
Act. In addition, to the extent currently known, the following
activities will not be considered likely to result in violation of
section 9 of the Act:
(1) Vegetation management practices, such as hand-pulling invasive
species and trail maintenance outside the populations that are carried
out in accordance with any existing regulations and best management
practices;
(2) Research activities that are carried out in accordance with any
existing regulations and permit requirements;
(3) Vehicle use on existing roads in compliance with the Six Rivers
National Forest land management plan; and
(4) Recreational use (e.g., hiking and walking) with minimal ground
disturbance on existing designated trails.
This list is intended to be illustrative and not exhaustive;
additional activities that will not be considered likely to result in
violation of section 9 of the Act may be identified during coordination
[[Page 69087]]
with the local field office, and in some instances (e.g., with new
information), the Service may conclude that one or more activities
identified here will be considered likely to result in violation of
section 9.
To the extent currently known, the following is a list of examples
of activities that fall under the prohibitions set forth at 50 CFR
17.61 and that will be considered likely to result in violation of
section 9 of the Act:
(1) Unauthorized collecting, handling, removing, possessing,
selling, delivering, carrying, or transporting of the species,
including transport across State lines and import or export across
international boundaries; and
(2) Destruction or alteration of the species by unauthorized
vegetation management, trail maintenance, or research activities.
This list is intended to be illustrative and not exhaustive;
additional activities that will be considered likely to result in
violation of section 9 of the Act may be identified during coordination
with the local field office, and in some instances (e.g., with new or
site-specific information), the Service may conclude that one or more
activities identified here will not be considered likely to result in
violation of section 9.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Arcata Fish
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
II. Critical Habitat
Background
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
[[Page 69088]]
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of these planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Geological Substrate and Soils
The Lassics lupine occurs on or in the vicinity of serpentine soils
in the Lassics Mountains, mainly on barren slopes with very shallow
soil and low organic matter, or less commonly, near edges of Jeffrey
pine forests. Most plants occur on flat or steep slopes with high
proportions of gravel or cobble on the surface. The Lassics Range
occurs in the central Franciscan Belt of the California Coast Ranges.
This area is characterized by moderately steep to very steep slopes and
a complex assemblage of rocks primarily composed of the Franciscan
Complex, the Coast Range Ophiolite, and the Great Valley Sequence
(Kaplan 1984, p. 203; Krueger 1990, p. 1). The sources of these
complexes range from oceanic crusts to underlying mantle that was
forced to the surface by thrusts originating from great distances. The
serpentine rocks are present due to extreme disruptions of faulting and
folding (Alexander 2008, p. 1). These soil parent materials and the
natural erosion on the landscape determine the soil features present
today. Both fluvial erosion and mass wasting have been important
geologic processes in the Lassics area (Alexander 2008, p. 1).
Lassics lupine occurs across four described soil units that are all
characterized as either serpentine and/or clastic (composed of pieces
of older rocks) sedimentary rocks (Alexander 2008, pp. 2-3). Serpentine
soils in general are characterized by their relatively high levels of
magnesium and iron, while being simultaneously low in calcium,
nitrogen, potassium, and phosphorus (Kruckeberg 1985, p. 18; Alexander
2011, p. 28). Additional soil analyses demonstrated that all soils
supporting Lassics lupine are characterized by similar sand content (81
to 91 percent) and similar concentrations of heavy minerals and
nutrients (specifically phosphorus, potassium, calcium, copper, iron,
zinc, total carbon, total nitrogen, and extractable aluminum) when
compared with nearby soils. Nearby soils that do not support Lassics
lupine revealed lower sand content and slightly higher pH. Few
additional sites meet the Lassics lupine soil requirements identified
by these two investigations. Given the narrow range of suitable soils,
it is unlikely that the species was significantly more widespread in
the area historically (Imper 2012, pp. 1-28).
The Lassics lupine occurs in an area that typically experiences
hot, dry summers and snow coverage for up to 7 months a year from late
fall through spring. The soils are fast draining and generally
infertile, as described above. The general inability for the
surrounding soil to retain moisture and/or nutrients results in
potentially increased impacts from climate variables such as rainfall,
snowmelt, and soil temperature.
Both Lassics lupine populations occur at the top of the Little Van
Duzen River watershed, which drains into the Van Duzen River, the Eel
River, and then the Pacific Ocean. The primary sources of water for
Lassics lupine plants are snowmelt and rainfall, some of which is
available as groundwater after weather events.
Lassics lupine habitat is typically covered in snow for many winter
months, with soil temperatures close to freezing and high moisture
content. Demographic monitoring data suggest that earlier snowmelt
dates are negatively correlated with survival of Lassics lupine plants
that year, especially during years of lower summer rainfall (Imper
2012, pp. 142-143). The date of snowmelt is influenced by the amount
and type of precipitation in the winter (rain versus snow) and
temperatures. Increased snow cover later in the season is assumed to
provide greater water infiltration into the soils, therefore increasing
the amount of
[[Page 69089]]
available moisture to Lassics lupine plants and decreasing desiccation
of overwintering plants.
Soil temperatures increase dramatically after snow has melted due
to lack of cover and vary with aspect. These temperatures continue to
increase into August. Soil moisture typically remains high in the weeks
following snowmelt and then decreases gradually, with some spikes based
on summer precipitation events. Areas occupied by Lassics lupine have
both high light levels and high available soil moisture in August
compared to unoccupied habitat nearby (Imper 2012, pp. 91-92). Most
areas are located on a north aspect or have some tree cover, both of
which decrease insolation and increase available soil moisture. Some
areas occupied by Lassics lupine are adjacent to mature trees and
experience lower soil temperatures due to shading and decreased
insolation; these areas generally appear to be less suitable for
Lassics lupine based on decreased reproductive vigor and growth rates.
Most of these forested areas experience rapid decreases in available
soil moisture earlier in the growing season, likely due to water
demands of nearby trees (Imper 2012, pp. 91-92). The exception to this
is the Red Lassic population, where there is a seasonally wet area
perched above the population that allows for increased moisture to be
available later in the season.
When it occurs, summer rainfall appears to be beneficial for
Lassics lupine's survival, with lower mortality in years with more
precipitation during the growing season (Imper 2012, pp. 142-143). In
late summer, when available soil moisture is low and soil temperatures
are high, there is the risk of desiccation of seedlings and mature
plants. In years when summer rainfall is low and summer temperatures
are high, there is increased mortality. The effects of these conditions
are exacerbated by early or decreased snowmelt.
Therefore, suitable soils are generally fast-draining and include
serpentine and clastic soils, with very shallow soil and low organic
matter. These soils are also characterized as receiving sufficient snow
and rain for seed germination and moisture for growing plants;
containing relatively high levels of magnesium and iron, while being
simultaneously low in calcium, nitrogen, potassium, and phosphorus; and
having relatively high sand content.
Ecological Community
The area immediately surrounding Lassics lupine habitat is
characterized by Jeffery pine and incense cedar forest, chaparral, and
largely unvegetated serpentine barrens. The predominant canopy cover is
provided by Jeffrey pine and incense cedar, with white fir (Abies
concolor) being prevalent on nonserpentine forest soils of the Lassics
(Alexander 2008, entire). The primary chaparral species are pinemat
manzanita, mountain whitethorn (Ceanothus cordulatus), buckbrush
(Ceanothus cuneatus), and various herbaceous species. Chaparral
habitats occur primarily on the south-facing slopes and forest habitats
on the north-facing slopes.
The majority of Lassics lupine plants occur on serpentine barrens
around Mount Lassic with patchy, or no, tree and shrub cover. Several
small herbs and geophytes, including other rare species, occur on these
serpentine barrens and have been documented over the past few decades
(for more detail see Nelson and Nelson 1983, entire; Cate 2016, pp. 7-
8; Imper and Elkins 2016, p. 11). Some plants occur in closed-canopy
Jeffrey pine-incense cedar forest farther downslope on the north aspect
of Mount Lassic. Plants in this area show decreased vigor and growth,
assumed to be attributed to reduced light and water and increased leaf
litter (Imper 2012, p. 140). A third habitat setting, at Red Lassic, is
dominated by Jeffrey pine and pinemat manzanita and occurs on a south
to southeast aspect.
Most Lupinus species require outcrossing for effective
fertilization of flowers. All Lupinus species have specialized
pollination mechanisms that require animal pollinators to carry pollen
from one individual to another. While the Lassics lupine may be capable
of some level of self-pollination, it is also visited at high rates by
three bee species: yellow-faced bumblebee, black-tailed bumblebee, and
a mason bee species (Osmia spp.) (Crawford and Ross 2003, p. 2). All
three of the bee species appear to be capable pollinators given that
they are large enough to trigger the mechanism that releases pollen
from the individual flowers (Crawford and Ross 2003, p. 3).
Successful transfer of pollen among Lassics lupine populations may
be inhibited if populations are separated by distances greater than
pollinators can travel and/or if a pollinator's nesting or foraging
habitat and behavior is negatively affected (Cranmer et al. 2012, p.
562; Dorchin et al. 2013, entire). Flight distances are generally
correlated with body size in bees; larger bees are able to fly farther
than smaller bees (Gathmann and Tscharntke 2002, entire; Greenleaf et
al. 2007, pp. 592-594). There is evidence to suggest that larger bees,
which are able to fly longer distances, do not need their habitat to
remain contiguous, but it is more important that the protected habitat
is large enough to maintain floral diversity (Greenleaf et al. 2007, p.
594). While researchers have reported long foraging distance for
solitary bees, the majority of individuals remain close to their nest;
thus, foraging distance tends to be 1,640 ft (500 m) or less (Antoine
and Forrest 2021, p. 152). The most common bee and wasp pollinators
have a fixed location for their nest, and thus their nesting success is
dependent on the availability of resources within their flight range
(Xerces 2009, p. 14).
Many insect communities are known to be influenced not only by
local habitat conditions, but also the surrounding landscape condition
(Klein et al. 2004, p. 523; Xerces 2009, pp. 11-26; Tepedino et al.
2011, entire; Dorchin et al. 2013, entire; Inouye et al. 2015, pp. 119-
121). In order for genetic exchange of Lassics lupine to occur,
pollinators must be able to move freely between populations.
Alternative pollen and nectar sources (other plant species within the
surrounding vegetation) are needed to support pollinators during times
when Lassics lupine is not flowering. Conservation strategies that
maintain plant-pollinator interactions, such as maintenance of diverse,
herbicide-free nectar resources, would serve to attract a wide array of
insects, including pollinators of Lassics lupine (Cranmer et al. 2012,
p. 567). Therefore, Lassics lupine habitat must also support
populations of bee species that, in turn, require abundant, diverse
sources of pollen and nectar.
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the Lassics lupine from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2023, entire;
available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R8-ES-
2022-0083). We have determined that the following physical or
biological features are essential to the conservation of the Lassics
lupine:
(1) A plant community that consists of the following:
(a) Areas of open to sparse understory to ensure competition with
Lassics lupine is inhibited. When sparse understory is present, the
composition is predominantly native vegetation.
(b) Suitable solar insolation levels to support growth. These
suitable levels can be achieved by the appropriate combination of
canopy cover and aspect, with hotter and drier west-facing
[[Page 69090]]
slopes needing moderate and more protective canopy cover compared to
cooler north-facing slopes where there can be little to no canopy
cover.
(c) A diversity and abundance of native plant species whose
blooming times overlap to provide pollinator species with pollen and
nectar sources for foraging throughout the seasons and to provide
nesting and egg-laying sites; appropriate nest materials; and
sheltered, undisturbed habitat for hibernation and overwintering of
pollinator species and insect visitors.
(2) Sufficient pollinators, particularly bees, for successful
Lassics lupine reproduction and seed production.
(3) Suitable soils and hydrology that consist of the following:
(a) Open, relatively barren, upland sites categorized as receiving
sufficient snow and rain for seed germination and moisture for growing
plants.
(b) Soils that are generally fast-draining, including serpentine or
clastic (composed of pieces of older rocks) soils, with very shallow
soil and low organic matter.
(c) Soils characterized by their relatively high levels of
magnesium and iron, while being simultaneously low in calcium,
nitrogen, potassium, and phosphorus.
(d) Soils characterized by relatively high sand content.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the following threats: pre-dispersal seed predation, native woody
vegetation encroachment, invasive species encroachment, and the ability
to withstand drought due to climate change. Management activities that
could ameliorate these threats include, but are not limited to: (1)
Caging plants to reduce the threat of pre-dispersal seed predation; (2)
habitat restoration activities that include the removal of woody
vegetation; (3) removal of nonnative, invasive species; and (4)
augmentation and reintroduction programs to expand Lassics lupine
populations.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the species because we have
not identified any unoccupied areas that meet the definition of
critical habitat.
We are designating one occupied critical habitat unit for the
Lassics lupine. The one unit is comprised of approximately 512 ac (207
ha) of land in Humboldt and Trinity Counties, California, and is
completely on lands under Federal (USFS) land ownership. The unit was
determined using location information for Lassics lupine after extant
population boundaries were collected in 2018 by Six Rivers National
Forest staff around Mount Lassic with global positioning system (GPS)
units. This dataset was provided to the Arcata Fish and Wildlife
Office. This unit includes the physical footprint of where the plants
currently occur, as well as their immediate surroundings out to 1,640
ft (500 m) in every direction from the periphery of each population.
This area of surrounding habitat contains components of the physical
and biological features (i.e., the pollinator community and its
requisite native vegetative assembly), necessary to support the life-
history needs of the Lassics lupine.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands lack the physical or
biological features necessary for the Lassics lupine. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this rule have been excluded by text in
the rule and are not designated as critical habitat. Therefore, a
Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action will affect the
physical or biological features in the adjacent critical habitat.
We are designating as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. The critical habitat unit is designated based on all of the
physical or biological features being present to support the Lassics
lupine's life-history processes.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document under Regulation Promulgation. We include more-detailed
information on the boundaries of the critical habitat designation in
the preamble of this document. We will make the coordinates or plot
points or both on which each map is based available to the public on
<a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R8-ES-2022-0083, and on
our internet site at <a href="https://www.fws.gov/species/lassics-lupine-lupinus-constancei">https://www.fws.gov/species/lassics-lupine-lupinus-constancei</a>.
Final Critical Habitat Designation
We are designating one unit as critical habitat for the Lassics
lupine. The critical habitat area we describe below constitutes our
current best assessment of the area that meets the definition of
critical habitat for the Lassics lupine. The area we designate as
critical habitat is in the Mount Lassic area. Table 2 shows the
critical habitat unit and its approximate area.
Table 2--Final Critical Habitat Unit for the Lassics Lupine
[Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
Size of unit
Critical habitat unit Land ownership by type in acres Occupied?
(hectares)
----------------------------------------------------------------------------------------------------------------
Mount Lassic Unit...................... Federal (USFS)........... 512 (207) Yes.
----------------------------------------------------------------------------------------------------------------
[[Page 69091]]
We present a brief description of the unit and reasons it meets the
definition of critical habitat for the Lassics lupine, below.
Mount Lassic Unit
The Mount Lassic Unit consists of 512 ac (207 ha) of USFS land.
This unit is located on the border of Humboldt and Trinity Counties,
California, surrounding Mount Lassic and Red Lassic peaks. All of this
unit is on Federal land managed solely by the Six Rivers National
Forest. This unit is currently occupied and contains two populations of
Lassics lupine consisting of less than 4 ac (1.6 ha) total. This unit
is essential to the recovery of Lassics lupine because it includes all
the habitat that is occupied by Lassics lupine across the species'
range. This unit currently has all the physical or biological features
essential to the conservation of the species, including open to
sparsely vegetated areas with low native plant cover and stature;
nesting, egg-laying, and foraging habitat for pollinator species and
insect visitors; and suitable soils with appropriate textures and
chemistry. This unit faces threats from encroaching woody vegetation
and high-severity fire and drought due to climate change. Cheatgrass
occurs within and adjacent to this unit and has encroached within 100
ft of individual plants. Special management may be required to mitigate
future impacts to Lassics lupine. It is likely that there is room for
expansion of the species in this unit provided that woody vegetation
management occurs to further limit pre-dispersal seed predation and
improve the quality of solar insolation.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
Compliance with the requirements of section 7(a)(2) of the Act is
documented through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation on previously reviewed actions.
These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (d) if a new species is listed or critical habitat
designated that may be affected by the identified action. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management in certain circumstances).
Application of the ``Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to, wildfire operations and
management within or adjacent to occupied areas. Such activities could
include, but are not limited to, construction of new access roads, use
of heavy equipment, and use of fire retardant. These activities could
significantly reduce the species' population size and range, and could
remove corridors for pollinator movement, seed dispersal, and
population expansion or significantly fragment the landscape and
decrease the resiliency and representation of the species throughout
its range.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in
[[Page 69092]]
writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation. There are no DoD lands of
any kind within this critical habitat designation for the Lassics
lupine.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (2016 Policy; 81 FR 7226, February 11, 2016)--
both of which were developed jointly with the National Marine Fisheries
Service (NMFS). We also refer to a 2008 Department of the Interior
Solicitor's opinion entitled, ``The Secretary's Authority to Exclude
Areas from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act'' (M-37016). We explain each decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable.
The Secretary may exclude any particular area if she determines
that the benefits of such exclusion outweigh the benefits of including
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making the determination to exclude a particular area, the
statute on its face, as well as the legislative history, are clear that
the Secretary has broad discretion regarding which factor(s) to use and
how much weight to give to any factor. In this final rule, we are not
excluding any areas from critical habitat.
Exclusions Based on Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (IEc 2022, entire). The analysis, dated March 16, 2022, was
made available for public review from October 6, 2022, through December
5, 2022 (87 FR 60612; October 6, 2022). The economic analysis addressed
probable economic impacts of critical habitat designation for the
Lassics lupine. Following the close of the comment period, we reviewed
and evaluated all information submitted during the comment period that
may pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. Additional information
relevant to the probable incremental economic impacts of critical
habitat designation for the Lassics lupine is summarized below and
available in the screening analysis for the Lassics lupine (IEc 2022,
entire), available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the
designation of critical habitat for the Lassics lupine, first we
identified probable incremental economic impacts associated with the
following categories of activities: fuels reduction, trail maintenance,
invasive plant removal, habitat restoration, Forest Route 1S07
operation and maintenance, protective plant caging and population
monitoring, prescribed fire, population management, and cattle
exclusion. We considered each industry or category individually.
Additionally, we considered whether the activities have any Federal
involvement. Critical habitat designation generally will not affect
activities that do not have any Federal involvement; under the Act,
designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies. In areas where
the Lassics lupine is present, Federal agencies will be required to
consult with the Service under section 7 of the Act on activities they
fund, permit, or implement that may affect the species. Our
consultations would include an evaluation of measures to avoid the
destruction or adverse modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Lassics lupine's critical habitat. Because the designation of critical
habitat for the Lassics lupine is being adopted concurrently with the
listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm to constitute jeopardy to
the Lassics lupine would also likely adversely affect the essential
physical or biological features of critical habitat. The IEM outlines
our rationale concerning this limited distinction between baseline
conservation efforts and incremental impacts of the designation of
critical habitat for this species. This evaluation of the incremental
effects has been used as the basis to evaluate the probable incremental
economic impacts of this designation of critical habitat.
The critical habitat designation for the Lassics lupine consists of
a single unit totaling 512 ac (207 ha). This unit is occupied and falls
entirely within federally owned land within the boundary of the Six
Rivers National Forest.
The screening analysis concluded that the anticipated number of
consultations and associated costs will be small and will be limited to
administrative efforts to consider adverse modification. This is
because the single critical habitat unit is relatively small and
because it occurs entirely on Federal lands, including a large portion
of the unit that is in a designated wilderness area. The analysis
predicts that there will be approximately 10 formal consultations over
the next 10 years and will result in approximately $5,400 in
incremental costs per year (IEc 2022, p. 10, exhibit 3). Few other
additional costs are anticipated. Overall, the additional
administrative burden is anticipated to fall well below the $200
million annual threshold.
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the Lassics lupine based on economic impacts.
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we determined that there are no lands
within the
[[Page 69093]]
designated critical habitat for the Lassics lupine that are owned or
managed by the DoD or Department of Homeland Security, and, therefore,
we anticipate no impact on national security or homeland security. We
did not receive any additional information during the public comment
period for the proposed designation regarding impacts of the
designation on national security or homeland security that would
support excluding any specific areas from the final critical habitat
designation under the authority of section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19, as well as the 2016 Policy.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security as discussed above. To identify other relevant impacts that
may affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs), or whether
there are non-permitted conservation agreements and partnerships that
would be encouraged by designation of, or exclusion from, critical
habitat. In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
We are not excluding any areas from critical habitat. In preparing
this final rule, we have determined that there are currently no HCPs or
other management plans for the Lassics lupine, and the designation does
not include any Tribal lands or trust resources. We anticipate no
impact on Tribal lands, partnerships, or HCPs from this final critical
habitat designation. We did not receive any additional information
during the public comment period for the proposed rule regarding other
relevant impacts to support excluding any specific areas from the final
critical habitat designation under the authority of section 4(b)(2) of
the Act and our implementing regulations at 50 CFR 424.19, as well as
the 2016 Policy. Accordingly, the Secretary is not exercising her
discretion to exclude any areas from this designation based on other
relevant impacts.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself; in other words, the RFA does not require agencies to
evaluate the potential impacts to indirectly regulated entities. The
regulatory mechanism through which critical habitat protections are
realized is section 7 of the Act, which requires Federal agencies, in
consultation with the Service, to ensure that any action authorized,
funded, or carried out by the agency is not likely to destroy or
adversely modify critical habitat. Therefore, under section 7, only
Federal action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Consequently, it is our position that
only Federal action agencies will be directly regulated by this
designation. There is no requirement under the RFA to evaluate the
potential impacts to entities not directly regulated. Moreover, Federal
agencies are not small entities. Therefore, because no small entities
will be directly regulated by this rulemaking, we certify that this
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
October 6, 2022, proposed rule (87 FR 60612) that may pertain to our
consideration of the probable incremental economic impacts of this
critical habitat designation. Based on this information, we affirm our
[[Page 69094]]
certification that this critical habitat designation will not have a
significant economic impact on a substantial number of small entities,
and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects ``to the extent
permitted by law'' when undertaking actions identified as significant
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a
``significant energy action'' as an action that (i) is a significant
regulatory action under E.O. 12866 (or any successor order, including
most recently E.O. 14094 (88 FR 21879; Apr. 11, 2023)); and (ii) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This rule is not a significant
regulatory action under E.O. 12866 or 14094. Therefore, this action is
not a significant energy action, and there is no requirement to prepare
a statement of energy effects for this action.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because only Federal lands are included in the
designation. Therefore, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the Lassics lupine in a takings implications assessment.
The Act does not authorize us to regulate private actions on private
lands or confiscate private property as a result of critical habitat
designation. Designation of critical habitat does not affect land
ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed and
concludes that this designation of critical habitat for the Lassics
lupine does not pose significant takings implications for lands within
or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this critical habitat designation with,
appropriate State resource agencies. From a federalism perspective, the
designation of critical habitat directly affects only the
responsibilities of Federal agencies. The Act imposes no other duties
with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, this final rule does not
have substantial direct effects either on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The designation may have some benefit to these governments
because the areas that contain the features essential to the
conservation of the species are more clearly defined, and the physical
or biological features of the habitat necessary for the conservation of
the species are specifically identified. This information does not
alter where and what federally sponsored activities may occur. However,
it may assist State and local governments in long-range planning
because they no longer have to wait for case-by-case section 7
consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act will be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical
[[Page 69095]]
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule will not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, this rule
identifies the physical or biological features essential to the
conservation of the species. The areas of designated critical habitat
are presented on maps, and the rule provides several options for the
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with federally recognized
Tribes on a government-to-government basis. In accordance with
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that no Tribal
lands fall within the boundaries of the critical habitat designation
for the Lassics lupine, so no Tribal lands will be affected by this
designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rule are the staff members of the Fish
and Wildlife Service's Species Assessment Team and the Arcata Fish and
Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.12, in paragraph (h), amend the List of Endangered and
Threatened Plants by adding an entry for ``Lupinus constancei'' in
alphabetical order under FLOWERING PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Scientific name Common name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Lupinus constancei.............. Lassics lupine..... Wherever found..... E 88 FR [INSERT
FEDERAL REGISTER
PAGE WHERE THE
DOCUMENT BEGINS],
10/5/2023; 50 CFR
17.96(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96, in paragraph (a), by adding an entry for ``Family
Fabaceae: Lupinus constancei (Lassics lupine)'' after the entry for
``Family Fabaceae: Astragalus pycnostachyus var. lanosissimus (Ventura
Marsh milk-vetch)'', to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Fabaceae: Lupinus constancei (Lassics lupine)
(1) The critical habitat unit is depicted for Humboldt and Trinity
Counties, California, on the map in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the Lassics lupine consist of the
following components:
(i) A plant community that consists of the following:
(A) Areas of open to sparse understory to ensure competition with
Lassics lupine is inhibited. When sparse
[[Page 69096]]
understory is present, the composition is predominantly native
vegetation.
(B) Suitable solar insolation levels to support growth. These
suitable levels can be achieved by the appropriate combination of
canopy cover and aspect, with hotter and drier west-facing slopes
needing moderate and more protective canopy cover compared to cooler
north-facing slopes where there can be little to no canopy cover.
(C) A diversity and abundance of native plant species whose
blooming times overlap to provide pollinator species with pollen and
nectar sources for foraging throughout the seasons and to provide
nesting and egg-laying sites; appropriate nest materials; and
sheltered, undisturbed habitat for hibernation and overwintering of
pollinator species and insect visitors.
(ii) Sufficient pollinators, particularly bees, for successful
Lassics lupine reproduction and seed production.
(iii) Suitable soils and hydrology that consist of the following:
(A) Open, relatively barren, upland sites categorized as receiving
sufficient snow and rain for seed germination and moisture for growing
plants.
(B) Soils that are generally fast-draining, including serpentine or
clastic (composed of pieces of older rocks) soils, with very shallow
soil and low organic matter.
(C) Soils characterized by their relatively high levels of
magnesium and iron, while being simultaneously low in calcium,
nitrogen, potassium, and phosphorus.
(D) Soils characterized by relatively high sand content.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
November 6, 2023.
(4) Data layers defining the map unit were created based on surveys
conducted with global positioning system (GPS) units collecting in
WGS84 coordinates, and the critical habitat unit was then mapped using
Universal Transverse Mercator (UTM) Zone 10N coordinates. The map in
this entry, as modified by any accompanying regulatory text,
establishes the boundaries of the critical habitat designation. The
coordinates or plot points or both on which the map is based are
available to the public at the Service's internet site at <a href="https://www.fws.gov/office/arcata-fish-and-wildlife">https://www.fws.gov/office/arcata-fish-and-wildlife</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R8-ES-2022-0083, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Mount Lassic Unit, Humboldt and Trinity Counties, California.
(i) The Mount Lassic Unit consists of 512 acres (207 hectares) of
land in Humboldt and Trinity Counties. The entirety of the unit falls
within the boundary of the Six Rivers National Forest.
(ii) Map of the Mount Lassic Unit follows:
Figure 1 to Family Fabaceae: Lupinus constancei (Lassics lupine)
paragraph (5)(ii)
BILLING CODE 4333-15-P
[[Page 69097]]
[GRAPHIC] [TIFF OMITTED] TR05OC23.058
[[Page 69098]]
* * * * *
Janine Velasco,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-21477 Filed 10-4-23; 8:45 am]
BILLING CODE 4333-15-C
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</html>Indexed from Federal Register on October 5, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.