[Federal Register Volume 59, Number 24 (Friday, February 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2547]


[[Page Unknown]]

[Federal Register: February 4, 1994]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AB73

 

Endangered and Threatened Wildlife and Plants; Endangered Status 
for Three Plants and Threatened Status for One Plant From Sandy and 
Sedimentary Soils of Central Coastal California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for three plants: Chorizanthe pungens var. hartwegiana 
(Ben Lomond spineflower (also previously known as Hartweg's 
spineflower)), Chorizanthe robusta (inclusive of var. hartwegii and 
var. robusta) (robust spineflower), and Erysimum teretifolium (Ben 
Lomond wallflower). The Service also determines threatened status for 
one plant: Chorizanthe pungens var. pungens (Monterey spineflower). 
These four taxa occur in coastal habitats of southern Santa Cruz and 
northern Monterey Counties and are imperiled by one or more of the 
following factors: Habitat destruction due to residential and golf 
course development, agricultural land conversion, sand mining, military 
activities, and encroachment by alien plant species. This rule 
implements the protection and recovery provisions afforded by the Act 
for these plants.

EFFECTIVE DATE: March 7, 1994.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Ventura Field Office, 2140 Eastman Avenue, 
Suite 100, Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Connie Rutherford at the above address 
(805/644-1766).

SUPPLEMENTARY INFORMATION:

Background

    Chorizanthe pungens Benth. var. hartwegiana Reveal & Hardham, 
Chorizanthe robusta Parry var. hartwegii (Benth. in A. DC), and 
Erysimum teretifolium Eastwood are endemic to sandstone and mudstone 
deposits in the Santa Cruz Mountains in Santa Cruz County, California. 
Chorizanthe pungens Benth var. pungens and Chorizanthe robusta Parry 
var. robusta are endemic to sandy soils of coastal habitats in southern 
Santa Cruz and northern Monterey Counties.
    The Santa Cruz Mountains are a relatively young range composed of 
igneous and metamorphic rocks overlain by thick layers of sedimentary 
material uplifted from the ocean floor and ancient shoreline zone 
(Caughman and Ginsberg 1987). These ancient marine terraces persist as 
pockets of sandstones and limestones that are geologically distinct 
from the volcanic origins of the range. Soils that form from these 
sandstone and limestone deposits tend to be coarse and, at least 
surficially, lose soil moisture rapidly. The more mesic slopes of the 
Santa Cruz Mountains are covered primarily by redwood forest (Zinke 
1988) and mixed evergreen forest (Sawyer et al. 1988).
    In contrast, the drier pockets of sandstone and limestone, referred 
to as the ``Ben Lomond sandhills'' (Thomas 1961), support two unique 
communities--maritime coast range ponderosa pine forest and northern 
maritime chaparral (Griffin 1964, Holland 1986). The ponderosa pine 
forest, locally referred to as ``ponderosa pine sandhill'' or 
``ponderosa pine sand parkland'' (California Native Plant Society 1986, 
Marangio and Morgan 1987), consists of an open park-like forest of 
scattered ponderosa pine (Pinus ponderosa) with knobcone pine (Pinus 
attenuata), coast live oak (Quercus agrifolia), and at a few sites, the 
federally endangered Santa Cruz cypress (Cupressus abramsii). These 
stands intergrade with another unique community, northern maritime 
chaparral, locally referred to as silver-leaf manzanita mixed chaparral 
(Marangio 1985, Marangio and Morgan 1987), and are dominated by the 
endemic silver-leaved manzanita (Arctostaphylos silvicola).
    As uplift of the Santa Cruz Mountains proceeded, some of the raised 
marine terraces of sandstone and limestone were buried beneath layers 
of sedimentary material deposited by flowing water. Pockets of this 
alluvial material, referred to as Santa Cruz mudstone, persisted during 
this process of mountain uplifting and alluvial movement. In the Scotts 
Valley area, mudstone outcrops support annual grasses and herbaceous 
species. These communities were referred to as annual grasslands and 
wildflower fields by Holland (1986).

Discussion of the Four Species

    In California, the spineflower genus (Chorizanthe) in the buckwheat 
family (Polygonaceae) comprises species of wiry annual herbs that 
inhabit dry sandy soils along the coast and inland. Because of the 
patchy and limited distribution of such soils, many species of 
Chorizanthe tend to be highly localized in their distribution.
    One subsection of the genus referred to as Pungentes consists of 
seven species distinguished by the following features: The inner and 
outer tepals (petal-like sepals) are of equal length and are entire or 
lobed but not fringed, filaments are free, involucres (whorl of bracts 
subtending the flowers) are 6-toothed with the alternating three 
shorter and the anterior one slightly long-awned, involucral margins 
are not continuously membranaceous across the sinuses, the number of 
stamens are variable (3-9), and plants are decumbent to erect with 
spreading pubescence and are distributed mainly on or near the coast 
from Santa Barbara County northward to Mendocino (Reveal and Hardham 
1989).
    Although three of the seven species in the section Pungentes are 
still thought to be common, the remaining four species are becoming 
increasingly rare. Two of these species (Chorizanthe howellii and C. 
valida) were listed as endangered on June 22, 1992 (57 FR 27848). The 
remaining two species, C. pungens and C. robusta, inclusive of their 
varieties, are subjects of this rule.
    Chorizanthe pungens was first described by George Bentham in 1836 
based on a specimen collected in Monterey. This taxon was recognized by 
George Goodman in 1934 as the type species in describing the Pungentes 
section of the genus. At that time, Goodman also recognized C. pungens 
var. hartwegii, previously described and identified as C. douglasii 
var. hartwegii by Bentham in 1856. It was named after Karl Hartweg who 
collected the type from ``dry mountain pastures near Santa Cruz'' in 
1847 (Reveal and Hardham 1989).
    Chorizanthe pungens var. hartwegiana was distinguished from C. 
pungens var. pungens by James Reveal and Clare Hardham (1989) after 
they noticed a difference between the coastal form and an inland form 
found ``in the Ben Lomond sand hills area.'' The name Chorizanthe 
pungens var. pungens was retained to represent the coastal form of the 
plant. Reveal and Hardham noted that the type for C. pungens var. 
hartwegiana was dissimilar to the plant that was called C. pungens var. 
hartwegii.
    The recent article describing Chorizanthe (Reveal and Hardham 1989) 
treats C. pungens var. pungens and C. pungens var. hartwegiana as 
distinct varieties. Though Hickman (1993) did not treat Chorizanthe 
pungens var. hartwegiana separately in The Jepson Manual, he did state 
that plants with ``more erect petals with pink to purple involucral 
margins have been called var. hartwegiana Rev. & Hardham.'' For the 
purposes of this final rule, the Service lists C. pungens var. pungens 
and C. pungens var. hartwegiana separately because the former variety 
qualifies for threatened status and the latter qualifies for endangered 
status under the Act. Even if the conservative Hickman (1993) treatment 
were used, C. pungens (inclusive of vars. pungens and hartwegiana) 
faces the same threats as described under the section entitled 
``Summary of Factors Affecting the Species'' and would qualify for 
listing under the Act.
    Chorizanthe robusta was first described by Charles Parry in 1889 
based on a collection he made 6 years earlier ``north of Aptos along 
Monterey Bay'' (Parry 1889). Willis Jepson considered it to be a 
variety of C. pungens and thus combined the taxon under the name C. 
pungens var. robusta in his Flora of California in 1914 (Jepson 1914). 
In their revision of the genus in 1989, Reveal and Hardham (1989) 
recognized Parry's treatment and retained the taxon as C. robusta. 
Although they placed in this synonymy the type of C. pungens var. 
hartwegii, Reveal and Hardham noted that the definition of the taxon 
was still not settled with their review.
    Concurrent with the publication of the Reveal and Hardham revision, 
the first collection in over 50 years was made of the inland form that 
matched Hartweg's original collection made in 1847. Reveal was 
therefore able to reconfirm its affinity with Chorizanthe robusta, 
while recognizing the distinctness of this taxon as a variety. Reveal, 
along with local botanist Randall Morgan, published the combination C. 
robusta var. hartwegii (Reveal and Morgan 1989), inclusive of the type 
of C. pungens var. hartwegii.
    The recent article describing Chorizanthe robusta var. hartwegii 
(Reveal and Morgan 1989) treats C. robusta var. robusta and C. robusta 
var. hartwegii as distinct varieties. Though Hickman (1993) did not 
treat C. robusta var. hartwegii separately in The Jepson Manual, he did 
state that plants with ``more erect petals with pink involucral margins 
have been called var. hartwegii (Benth.) Rev. & R. Morgan.'' For the 
purposes of this listing, the Service adds the entire species of C. 
robusta (inclusive of C. robusta var. hartwegii and C. robusta var. 
robusta) to the List of Endangered and Threatened Wildlife and Plants.
    During the Service's review of a petition to list Chorizanthe 
robusta var. hartwegii, Dr. John Thomas questioned the taxonomic 
validity of Chorizanthe robusta var. hartwegii (John Thomas, Stanford 
University, in litt., 1990). To address these concerns, the Service 
reviewed specimens of Chorizanthe robusta var. hartwegii and other 
closely related taxa in the Pungentes subsection of the genus with 
plant taxonomists at the University of California. The Service's review 
indicates that specimens ascribed to C. pungens and C. robusta have 
five morphologically recognizable phases that correspond to ecological 
and geographical patterns. Four of these five phases generally 
correspond to C. pungens var. pungens, C. pungens var. hartwegiana, C. 
robusta var. robusta, and C. robusta var. hartwegii. The fifth phase 
consists of specimens that were identified as C. robusta or C. pungens 
(Ertter 1990). This final rule, by addressing the subject four 
varieties of Chorizanthe, includes all five phases reviewed.
    Chorizanthe pungens var. pungens and Chorizanthe robusta var. 
robusta are endemic to sandy soils of coastal habitats in southern 
Santa Cruz and northern Monterey Counties. The inner rim of Monterey 
Bay is characterized by broad, sandy beaches backed by an extensive 
dune formation. Just inland from the immediate coast, maritime 
chaparral occupies areas with well-drained soils. Coastal dune and 
coastal scrub communities exist along the inner rim of Monterey Bay, 
but portions were affected by habitat modification or destruction.
    Chorizanthe pungens var. pungens (Monterey spineflower) has white 
(rarely pinkish) scarious margins on the involucral lobes and a 
prostrate to slightly ascending habit that distinguish it from 
Chorizanthe pungens var. hartwegiana. The aggregate of flowers (heads) 
tend to be small (less than 1 centimeter (cm) (0.4 inches (in)) in 
diameter) and either distinctly or indistinctly aggregate. The plant is 
found scattered on sandy soils within coastal dune, coastal scrub, 
grassland, maritime chaparral, and oak woodland communities along and 
adjacent to the coast of southern Santa Cruz and northern Monterey 
Counties and inland to the coastal plain of Salinas Valley. 
Historically, the plant ranged along the coast from southern Santa Cruz 
County south to northern San Luis Obispo County and from Monterey 
inland to the Salinas Valley. Only one collection dating from 1842 was 
made from northern San Luis Obispo County; however, in recent years it 
was not collected south of Monterey Peninsula (Reveal and Hardham 
1989).
    Along the immediate coast, Chorizanthe pungens var. pungens was 
documented at Manresa State Beach and the dunes near Marina. The plant 
probably was extirpated from a number of historical locations in the 
Salinas Valley, primarily due to conversion of the original grasslands 
and valley oak woodlands to agricultural crops (Reveal and Hardham 
1989). Significant populations of Chorizanthe pungens var. pungens, 
representing upwards of 70 percent of the range of the plant, were 
recently documented from Fort Ord (Army Corps of Engineers 1992). These 
surveys indicated that within grassland communities the plant occurs 
along roadsides, in firebreaks, and in other disturbed sites. In oak 
woodland, chaparral, and scrub communities, the plants occur in sandy 
openings between shrubs. In older stands with a high cover of shrubs, 
the plant is restricted to roadsides and firebreaks that bisect these 
communities. The highest densities of C. pungens var. pungens are 
located in the central portion of the firing range, where disturbance 
is the most frequent. Although studies were not conducted on factors 
that determine the pattern of distribution and the densities of C. 
pungens var. pungens on Fort Ord, a correlation exists between open 
conditions resulting from activities that disturb habitat and high 
densities of C. pungens var. pungens. Prior to onset of human use of 
this area, this species was possibly restricted to openings created by 
wildfires within these communities.
    Chorizanthe robusta (robust spineflower) is comprised of two 
varieties: C. robusta var. robusta and C. robusta var. hartwegii. A 
description of the species is broken out below by variety.
    Chorizanthe robusta var. robusta has thin white to pinkish scarious 
margins along the basal portions of the teeth and an erect to spreading 
or prostrate habit. The heads are large (1.5 to 2 cm (0.6 to 0.8 in) in 
diameter) and distinctly aggregate. The plant once ranged from Alameda 
to Monterey Counties, but is currently known only from sandy and 
gravelly soils along and adjacent to the coast of southern Santa Cruz 
and northern Monterey Counties. Many of the areas from which 
collections were made in Alameda and San Mateo Counties were urbanized, 
and no new collections were made from there or from Monterey County for 
30 years (Ertter 1990). As with C. pungens var. pungens, the coastal 
dune and scrub communities were affected by recreational use, urban 
development, and military activities, and the coastal plain vegetation 
of the Salinas Valley was converted to agricultural crops. The only 
known extant populations occur northeast of the city of Santa Cruz on 
property recently acquired by the city from the University of 
California and near Sunset and Manresa State Beaches, approximately 12 
miles away. The total number of individuals of the plant was estimated 
to be less than 7,000 in 1990.
    Specimens collected from certain populations of Chorizanthe in the 
vicinity of Sunset State Beach are ``comparable to Chorizanthe 
pungens'' according to Ertter (1990). The Service believes that these 
populations are best assigned to Chorizanthe pungens var. pungens.
    Chorizanthe robusta var. hartwegii has rose-pink involucral margins 
confined to the basal portion of the teeth and an erect habit. The 
heads are medium in size (1 to 1.5 cm (0.4 to 0.6 in) in diameter) and 
distinctly aggregate. The plant is endemic to Purisima sandstone and 
Santa Cruz mudstone in Scotts Valley in the Santa Cruz Mountains. Where 
C. robusta var. hartwegii occurs on Purisima sandstone, the bedrock is 
overlain with a thin soil layer that supports a meadow community 
comprised of herbs and low-growing grasses. The presence of certain 
associated species, such as toad rush (Juncus bufonis), sand pigmyweed 
(Crassula erecta), mosses, and lichens, suggest a high seasonal 
moisture content. Where the plant occurs on Santa Cruz mudstone, the 
bedrock is variously mixed with scree or a thin soil layer that also 
supports a meadow community of herbs and grasses, though of somewhat 
different composition than those on Purisima sandstone, and with a 
lower frequency of toadrush, pigmyweed, and lichens (Habitat 
Restoration Group 1992).
    The only known extant populations of Chorizanthe robusta var. 
hartwegii occur in Scotts Valley in the Santa Cruz Mountains north of 
the city of Santa Cruz. The plant occurs primarily on pockets of Santa 
Cruz mudstones and Purisima sandstones and is associated with annual 
grasslands and wildflower fields (Reveal and Morgan 1989). These 
islands of unique substrates are host to a number of rare plants. Three 
populations of the plant, each consisting of numerous small colonies, 
are scattered over an area 1 mile in diameter on three parcels in 
private ownership. In 1989, shortly after the taxon was rediscovered, 
the total number of individuals was estimated to be approximately 6,000 
(California Natural Diversity Data Base (CNDDB) 1990). As a result of 
two proposals for development that were pending at the time, additional 
surveys were conducted during the next few years. Results of 1992 
surveys were that the two populations on land proposed for a 
development named Glenwood Estates totalled between 30,000 and 100,000 
individuals (Habitat Restoration Group 1992). The numbers of this 
annual plant are expected to fluctuate from year to year, depending on 
climatic conditions.
    Chorizanthe pungens var. hartwegiana (Ben Lomond spineflower) has 
dark pinkish to purple scarious margins on the involucral lobes and a 
slightly ascending to erect habit. The heads are medium in size (1 to 
1.5 cm (0.4 to 0.6 in) in diameter) and distinctly aggregate. The plant 
is found on sandy soils that are the basis for the Ben Lomond sandhills 
communities in the Santa Cruz Mountains, mostly on privately owned 
land. C. pungens var. hartwegiana is confined to outcrops of sandstone 
soils in the Santa Cruz Mountains from Big Basin State Park to the 
Felton area in the Santa Cruz Mountains. These sandstone soils support 
several unique plant communities, including the ponderosa pine-
dominated Ben Lomond sandhills. The majority of occurrences of C. 
pungens var. hartwegiana are found on privately owned lands within the 
area generally bounded by the communities of Ben Lomond, Glenwood, 
Scotts Valley, and Felton.
    Erysimum teretifolium (Ben Lomond wallflower) was first collected 
at Glenwood, Santa Cruz County, by Horace Davis in 1914. This plant was 
described by Alice Eastwood in 1938 as E. filifolium, not realizing 
that this combination was already applied to another plant (Eastwood 
1938). It was therefore renamed E. teretifolium in the following year 
(Eastwood 1939). E. teretifolium is a biennial, or occasionally an 
annual, plant of the mustard family (Brassicaceae). Seedlings form a 
basal rosette of leaves, which then wither as the main stem develops 
flowers clustered in a terminal raceme. The flowers are a deep yellow 
with petals 1.3 to 2.5 cm (0.5 to 1.0 in) long; the slender capsule 
reaches 10 cm (4.0 in) in length and is covered with three-parted 
hairs. The leaves are simple and narrowly linear, a characteristic that 
separates this plant from other wallflowers.
    Erysimum teretifolium is endemic to pockets of sandstone deposits 
in the Santa Cruz Mountains and is presently known from only a dozen 
scattered occurrences. These sandstone deposits support the unique 
ponderosa pine sandhill community, and E. teretifolium seems to prefer 
sites with loose, uncompacted sand in openings between scattered 
chaparral shrubs. Chorizanthe robusta var. robusta is found in close 
proximity with E. teretifolium at some locations. A dozen populations 
of E. teretifolium occur within the area generally bounded by the 
communities of Ben Lomond, Glenwood, Scotts Valley, and Felton, with 
one outlying population occurring in the Bonny Doon area, 5 miles west 
of Felton. One population occurs at Quail Hollow Ranch, which is 
jointly owned by Santa Cruz County, The Nature Conservancy, and the 
California Department of Fish and Game (CDFG). All other populations 
are on privately owned lands.

Previous Federal Action

    Federal government actions for one of these four plants began as a 
result of section 12 of the Endangered Species Act of 1973, which 
directed the Secretary of the Smithsonian Institution to prepare a 
report on those plants considered to be endangered, threatened, or 
extinct. This report, designated as House Document No. 94-51, was 
presented to Congress on January 9, 1975. In the report, Erysimum 
teretifolium was recommended for threatened status. On July 1, 1975, 
the Service published a notice in the Federal Register (40 FR 27823) of 
its acceptance of the report as a petition within the context of 
section 4(c)(2) (now section 4(b)(3)(A)) of the Act and of the 
Service's intention thereby to review the status of the plant taxa 
named within.
    The Service published an updated notice of review for plants on 
December 15, 1980 (45 FR 82480). This notice included Erysimum 
teretifolium as a category 1 candidate (species for which data in the 
Service's possession are sufficient to support proposals for listing) 
and Chorizanthe pungens var. pungens as a category 2 candidate (species 
for which data in the Service's possession indicate listing may be 
appropriate, but for which additional biological information is needed 
to support listing). In the September 27, 1985, revised notice of 
review for plants (50 FR 39526), E. teretifolium was again included as 
a category 1 candidate, and C. pungens var. pungens as a category 2 
candidate. In the February 21, 1990 (55 FR 6184), notice of review for 
plants, E. teretifolium was retained in category 1 and Chorizanthe 
pungens var. pungens and Chorizanthe pungens var. hartwegiana in 
category 2.
    Section 4(b)(3)(B) of the Endangered Species Act, as amended in 
1982, requires the Secretary to make findings on certain pending 
petitions within 12 months of their receipt. Section 2(b)(1) of the 
1982 amendments further requires that all petitions pending on October 
13, 1982, be treated as newly submitted on that date. This was the case 
for Erysimum teretifolium because the 1975 Smithsonian report was 
accepted as a petition. In October 1983, 1984, 1985, 1986, 1987, 1988, 
1989, and 1990, the Service found that the petitioned listing of E. 
teretifolium was warranted, but that the listing of this species was 
precluded by other pending proposals of higher priority.
    On May 16, 1990, the Service received a petition from Steve McCabe, 
president, and Randall Morgan of the Santa Cruz Chapter of the 
California Native Plant Society to list Chorizanthe robusta var. 
hartwegii as endangered. Based on a 90-day finding that the petition 
presented substantial information indicating that the requested action 
may be warranted (55 FR 46080), the Service initiated a status review 
of this taxon. During that time the Service also reviewed the status of 
Chorizanthe robusta var. robusta. This final rule constitutes the 
Service's final finding that the listing of C. robusta, inclusive of 
var. robusta and var. hartwegii, as endangered, is warranted, and that 
the listing of Erysimum teretifolium as endangered is warranted.
    On October 24, 1991 (56 FR 55111), the Service published a proposal 
to list Chorizanthe pungens var. hartwegiana, Chorizanthe pungens var. 
pungens, Chorizanthe robusta var. hartwegii, Chorizanthe robusta var. 
robusta, and Erysimum teretifolium as endangered species. That proposal 
was based, in large part, on the survey information, occurrence data, 
and information on pending projects that would adversely affect the 
five plants. C. robusta consisted of varieties hartwegii and robusta at 
the time of the publication of the proposed rule. Because the two C. 
robusta varieties, hartwegii and robusta, qualify for endangered 
status, this rule lists the entire species. Hence this rule lists four 
plants, yet discusses each of the five varieties separately. The 
Service now determines C. pungens var. hartwegiana, C. robusta 
(inclusive of vars. hartwegii and robusta), and E. teretifolium to be 
endangered species, and C. pungens var. pungens to be a threatened 
species, with the publication of this rule.

Summary of Comments and Recommendations

    In the October 24, 1991, proposed rule (56 FR 55111) and associated 
notifications, all interested parties were requested to submit factual 
reports or information that might contribute to the development of a 
final rule. A 60-day comment period closed on December 23, 1991. 
Appropriate State agencies, county governments, Federal agencies, 
scientific organizations, and other interested parties were contacted 
and requested to comment. A request for a public hearing was received 
from Allan Butler of APC International, Inc. On May 15, 1992, and again 
on May 26, 1992, the Service published notices in the Federal Register 
(57 FR 20805 and 57 FR 21993) announcing the publication of the 
proposal, the public hearing, and the reopening of the comment period 
until July 15, 1992. A notice announcing the publication of the 
proposal and the public hearing was published in the Santa Cruz 
Sentinel on May 18, 1992. The Service conducted a hearing on June 4, 
1992, at the Santa Cruz County Government Center in Santa Cruz. 
Testimony was taken from 6 p.m. to 8 p.m. Twenty-one parties presented 
testimony.
    During the comment periods, the Service received written and oral 
comments from 48 parties. CDFG, California Department of Parks and 
Recreation, The Nature Conservancy, California Native Plant Society, 
National Audubon Society, Sierra Club, Environmental Council of Santa 
Cruz County, Southridge Watershed Association, and the Resource Defense 
Fund were some of the 38 commenters expressing support for the listing 
proposal. Eight commenters opposed the listing of Chorizanthe robusta 
var. hartwegii. The city of Marina opposed the listing of Chorizanthe 
pungens var. pungens. Two commenters, one of whom offered technical 
comments on the proposal, were neutral. In addition, results of 
additional surveys for the plants (Army Corps of Engineers 1992, 
Habitat Restoration Group 1992) were incorporated into this final rule. 
Written comments and oral statements obtained during the public hearing 
and comment periods are combined in the following discussion. Opposing 
comments and other comments questioning the rule were organized into 
specific issues. These issues and the Service's response to each are 
summarized as follows:
    Issue 1: Several commenters felt that there was insufficient 
scientific evidence to list Chorizanthe robusta var. hartwegii. Others 
stated that the Service used data that were skewed or selectively 
chosen to support the listing of this plant; ``relied on the expertise 
of an amateur botanist whose opinion [is cited] without investigation 
of contrary opinions by, arguably, more qualified professionals;'' and 
did not utilize information supplied by Dr. Thomas that challenged the 
appropriateness of listing C. robusta var. hartwegii.
    Service Response: In preparing the proposed rule, the Service 
utilized information from botanical collections and observations that 
date from the mid-1800s, as well as data that were submitted to the 
Service in response to a request for information made to local and 
State agencies and other interested parties. The Service therefore 
maintains that the best available commercial and scientific information 
was utilized in preparation of the proposed rule. No data were 
submitted to support the contention that the Service skewed or 
selectively chose data to support the proposal. During preparation of 
the proposal, the Service consulted with a number of professional 
botanists, and other professional biologists commented during the 
comment period. These botanists and biologists gave biological bases 
that supported the listing of Chorizanthe robusta var. hartwegii. The 
Service, therefore, believes that this determination to list the plant 
as endangered under C. robusta is appropriate and is supported by the 
botanical community.
    Issue 2: Several commenters pointed out that the California Fish 
and Game Commission rejected a proposal to State list Chorizanthe 
robusta var. hartwegii, and it was, therefore, inappropriate for the 
Service to pursue Federal listing due to the ``doctrine of comity'' 
(the informal and voluntary recognition by courts of one jurisdiction 
of the laws and judicial decision of another).
    Service Response: The California Fish and Game Commission did not 
reject a proposal to State list Chorizanthe robusta var. hartwegii, 
rather it determined that not enough information was available to 
petition the plant for State listing. The opinions of the California 
Fish and Game Commission were not shared by CDFG, which supported the 
Federal listing at the public hearing and in writing (Ken Berg, CDFG, 
pers. comm., 1992). The Act does not require agreement among State 
agencies. Moreover, CDFG, in collaboration with The Nature Conservancy 
and the California Native Plant Society, supplied the Service with 
data, through the CNDDB (1990), that supports Federal listing of the 
four plants.
    Issue 3: A few commenters, citing Dr. John Thomas's opinions, 
stated that Chorizanthe robusta var. hartwegii is not a distinct taxon. 
Others contended that other botanical experts consulted by the Service 
``did not reach a conclusion which would change the above view'' and 
that their brief reviews were not definitive and did not resolve the 
taxonomic questions that were raised. One commenter stated that a 
thorough taxonomic revision of the Pungentes subsection of the genus 
Chorizanthe was needed.
    Service Response: The Service believes that the recognized 
authority for the taxonomy of the buckwheat family, Dr. James Reveal, 
provided sufficient data to support the taxonomic validity of 
Chorizanthe robusta var. hartwegii. Moreover, other botanical experts 
consulted by the Service did not provide any information that disputed 
the taxonomic validity of this plant. The species C. robusta, inclusive 
of vars. robusta and hartwegii, faces threats as described under the 
section entitled ``Summary of Factors Affecting the Species,'' hence 
even if the conservative Hickman (1993) treatment were used as in The 
Jepson Manual, the entire species would qualify for listing under the 
Act. The Service agrees that additional taxonomic work on the Pungentes 
subsection of the genus Chorizanthe would be desirable, but maintains 
that the existing treatment is sufficient to proceed with the listing.
    Issue 4: Several commenters contended that adequate regulatory 
mechanisms are currently in place, through the California Environmental 
Quality Act and the California Endangered Species Act, to protect 
Chorizanthe robusta var. hartwegii.
    Service Response: The only protection given to State-listed species 
is the requirement that landowners give CDFG 10 days notice of any land 
use change. The California Environmental Quality Act requires 
mitigation for projects that adversely affect listed plants as well as 
those that qualify for State listing; however, many mitigation attempts 
do not achieve the goal of securing long-term protection for such 
plants (Howald 1992). The California Environmental Quality Act process 
allowed the city of Scotts Valley to make a statement of overriding 
considerations to approve the Glenwood Development Company's project 
even though the project will eliminate approximately two-thirds of the 
known habitat for Chorizanthe robusta var. hartwegii (City of Scotts 
Valley 1992). Furthermore, CDFG was unable to come to agreement with 
the Glenwood Development Company on mitigation for impacts to the plant 
and compensation for unavoidable losses (Brian Hunter, CDFG, in litt., 
1993). The failure of existing regulatory mechanisms to adequately 
protect the plant are further discussed under Factor D in the ``Summary 
of Factors Affecting the Species'' section.
    Issue 5: One commenter claimed that the Service has no jurisdiction 
over Chorizanthe robusta var. hartwegii because it occurs on privately 
owned lands, and the plant is neither in interstate commerce nor the 
subject of an international treaty and, therefore, is exclusively under 
the jurisdiction of the State.
    Service Response: Section 4 of the Act directs the Service to 
evaluate species for listing based on biological information only, not 
land jurisdiction. The five factors on which the biological 
vulnerability of species are evaluated are discussed in the ``Summary 
of Factors Affecting the Species'' section. Land ownership is not a 
factor used to determine whether or not listing is appropriate.
    Issue 6: Two commenters stated that data concerning Chorizanthe 
robusta var. hartwegii were obtained in violation of State trespass 
laws on private land; therefore, such ``illegal evidence'' should be 
excluded from consideration in the listing process.
    Service Response: The ``trespass'' issue does not involve the 
Service, and although the Service does not condone entering private 
land without permission, it is charged with using the best commercially 
and scientifically available information in preparation of a proposal. 
Moreover, information concerning the rarity of Chorizanthe robusta var. 
hartwegii, the threats to its continued existence, and information from 
surveys on private land were made part of the public record in 
environmental assessments that were prepared as required by the 
California Environmental Quality Act (City of Scotts Valley 1989, 
Harding Lawson Associates 1991).
    Issue 7: Several commenters charged that the proposed rule for 
Chorizanthe robusta var. hartwegii was promulgated merely to fulfill 
requirements of a settlement resulting from the lawsuit filed against 
the Service by the California Native Plant Society. They further 
contended that this deprived Glenwood Development Company of its rights 
and is contrary to the intent and language of the Endangered Species 
Act.
    Service Response: The California Native Plant Society lawsuit 
settlement requires the Service to propose for listing those plant taxa 
that were identified as category 1 candidates for listing in the 
February 21, 1990, notice of review (56 FR 58804). Of the five taxa 
included in the proposed rule, only Erysimum teretifolium was a 
category 1 candidate in the February 21, 1991, notice of review, and is 
the only one of the four taxa subject to the requirements of the 
lawsuit settlement. However, Federal action on all five taxa began 
prior to the settlement of the California Native Plant Society lawsuit 
(see section on ``Previous Federal Action''). As stated under the 
Service Response to Issue 5 above, the Endangered Species Act directs 
the Service to list species on the basis of biological vulnerability.
    Issue 8: One commenter stated that the Service failed to publish 
the proposed rule within 1 year of having received the petition, which 
therefore failed to meet statutory time requirements, and requested 
that the proposed rule be withdrawn.
    Service Response: The Service endeavors to meet statutory 
timeframes; however, nothing in the statute suggests that the Service 
is required to withdraw proposals because deadlines are missed.
    Issue 9: One commenter stated that the Service failed to prepare 
environmental assessments as required by the National Environmental 
Policy Act.
    Service Response: The Service is exempt from preparing 
environmental assessments regarding the listing of species pursuant to 
the National Environmental Policy Act for reasons outlined in the 
Federal Register on October 25, 1983 (48 FR 49244). This is stated in 
the proposed rule and this final rule under the section titled 
``National Environmental Policy Act.''
    Issue 10: One commenter stated that Erysimum teretifolium is a weed 
and that he had ``seen it in many places in the county'' and on ``all 
kinds of roadbanks,'' presumably meaning that the species is more 
widespread than is indicated in the proposed rule. He also felt that 
the public should be encouraged to grow it as a garden plant, 
presumably to assist in perpetuating the species.
    Service Response: No information was submitted to the Service to 
substantiate the locations of additional populations of Erysimum 
teretifolium. Since the time the proposal was published, no 
documentation has been made of additional populations of the plant 
found by any botanists that contribute to CNDDB (CNDDB 1993). The 
Service, therefore, maintains that this decision is based on the best 
and most current information available and that it is sufficient to 
warrant making a determination on its status. With regard to the 
suggestion to cultivate E. teretifolium as a garden plant, the Service 
recognizes the value of maintaining cultivated collections of rare 
species. Such collections, however, do not replace protection for 
native ecosystems, which is the intent of the Endangered Species Act.
    Issue 11: Two agencies (CDFG and California Department of Parks and 
Recreation) recommended that the Service list Chorizanthe pungens var. 
pungens as threatened rather than endangered.
    Service Response: Since publication of the proposal, the Service 
has reviewed additional biological information, including surveys for 
Chorizanthe pungens var. pungens recently conducted on Fort Ord by an 
environmental consulting firm, Jones and Stokes Associates (Army Corps 
of Engineers 1992). Substantial new populations were located on Fort 
Ord, but the pending disposal of Fort Ord still places these 
populations at risk. The Service therefore determined that threatened 
status for this plant is appropriate.
    Issue 12: Several commenters requested that the Service designate 
critical habitat for Chorizanthe robusta var. hartwegii.
    Service Response: Under section 4(a)(3)(A) of the Act, the 
Secretary must designate critical habitat to the maximum extent prudent 
and determinable at the time a species is determined to be endangered 
or threatened. In the proposed rule, the Service found that 
determination of critical habitat was not prudent for these species. As 
discussed under the ``Critical Habitat'' section below, the Service 
finds that designation of critical habitat for Chorizanthe robusta, 
inclusive of vars. robusta and hartwegii, is prudent but not 
determinable at this time. For certain populations that would likely 
not be imperiled by the threat of vandalism, collecting, or other human 
activities, the Service will propose designation of critical habitat.
    Issue 13: One commenter expressed concern that several specimens of 
Chorizanthe collected by Yadon from Fort Ord, Monterey County, were not 
discussed in the proposed rule. The specimens were originally annotated 
as Chorizanthe robusta var. hartwegii by Dr. James Reveal.
    Service Response: The specimens that were collected from Fort Ord 
were among those that were reviewed by taxonomists at the University 
Herbarium and the Jepson Herbarium at the University of California, 
Berkeley, prior to preparation of the proposed rule (Ertter 1990). In 
their report, the taxonomists indicated that the specimens belong in 
Chorizanthe douglasii rather than Chorizanthe robusta. They cite the 
well-developed united involucral margins, a feature that separates the 
subsection Legnota (which includes Chorizanthe douglasii) from the 
seven other subsections of the genus Chorizanthe (which includes the 
subsection Pungentes) that do not have united involucral margins 
(Ertter 1990, Reveal and Hardham 1989). On the basis of this taxonomic 
review, the Service concludes that no confirmed collections of 
Chorizanthe robusta var. hartwegii exist from Fort Ord or anywhere else 
in Monterey County. No additional discussion concerning the specimens 
from Fort Ord has been included in the final rule.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that Chorizanthe pungens var. 
hartwegiana (Ben Lomond spineflower), Chorizanthe robusta (inclusive of 
vars. hartwegii and robusta) (robust spineflower), and Erysimum 
teretifolium (Ben Lomond wallflower) should be classified as endangered 
species, and Chorizanthe pungens var. pungens (Monterey spineflower) 
should be classified as a threatened species. Procedures found at 
section 4 of the Endangered Species Act (16 U.S.C. 1531 et seq.) and 
regulations (50 CFR part 424) promulgated to implement the listing 
provisions of the Act were followed. A species may be determined to be 
an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1). These factors and their 
application to Chorizanthe pungens Benth. var. hartwegiana Reveal & 
Hardham (Ben Lomond spineflower), Chorizanthe pungens Benth. var. 
pungens (Monterey spineflower), Chorizanthe robusta Parry (inclusive of 
var. hartwegii (Benth. in A. DC) Reveal & Morgan and var. robusta) 
(robust spineflower), and Erysimum teretifolium Eastwood (Ben Lomond 
wallflower) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. Three taxa (Chorizanthe pungens 
var. hartwegiana, Chorizanthe robusta var. hartwegii, and Erysimum 
teretifolium) are restricted to sandstone and mudstone soils in the 
Santa Cruz Mountains. Two taxa (Chorizanthe pungens var. pungens and 
Chorizanthe robusta var. robusta) are found only on sandy soils of 
coastal and near coastal habitats in southern Santa Cruz and northern 
Monterey Counties. These species and their associated habitats are 
threatened by one or more of the following: residential and golf course 
development, agricultural land conversion, recreational use, sand 
mining, dune stabilization projects, and military activities.
    Sand quarrying resulted in the direct removal of Chorizanthe 
pungens var. hartwegiana habitat, and a currently proposed expansion of 
operations at Quail Hollow Quarry may eliminate additional populations. 
Residential development on smaller parcels of privately owned lands 
also contributed to the elimination of C. pungens var. hartwegiana and 
the fragmentation of the remaining habitat. Protective management for 
sandhill parkland communities will be developed for one parcel recently 
acquired by the State of California.
    In the 1870s, limestone quarries began operating in the Bonny Doon 
area of the Santa Cruz Mountains, as well as in other locations around 
the county (Caughman and Ginsberg 1987). In more recent years, sand 
quarrying replaced limestone mining as a viable economic activity. At 
least half of the habitat occupied by Chorizanthe pungens var. 
hartwegiana is on property owned by sand and gravel companies. 
Operations at a number of quarries, including Kaiser 1 and 2, Olympia, 
and Quail Hollow, have already extirpated populations of Erysimum 
teretifolium (Randall Morgan, botanist, Soquel, California, pers. 
comm., 1990). Expanded operations are currently proposed for Quail 
Hollow Quarry (John Gilchrist and Associates 1990, Strelow 1993). One 
parcel (Quail Hollow Ranch), which was recently acquired by Santa Cruz 
County and the State of California, supports a large population of 
Chorizanthe pungens var. hartwegiana, as well as other unique species 
of the sandhill parklands habitat. Management plans for Quail Hollow 
Ranch are under development by Santa Cruz County, hence proposed 
recreational facilities may affect populations of both C. pungens var. 
hartwegiana and E. teretifolium (County of Santa Cruz 1990). Another 
parcel owned by the San Lorenzo Valley Water District also supports 
several of the unique elements of the Ben Lomond sandhills habitat, 
including Chorizanthe pungens var. hartwegiana. This parcel was badly 
damaged by off-road vehicles despite efforts to fence off the area by 
the District. Small populations of C. pungens var. hartwegiana are also 
known to occur at the Bonny Doon Ecological Preserve, managed by The 
Nature Conservancy, and at Big Basin and Henry Cowell State Parks. 
These parks, however, have not yet developed management plans for C. 
pungens var. hartwegiana.
    The remaining coastal dune and coastal scrub habitats that support 
Chorizanthe pungens var. pungens were affected by industrial and 
residential development, recreational use, and dune stabilization due 
to the introduction of non-native species. Along the coast of the north 
side of Monterey Peninsula, human and equestrian use threaten scattered 
occurrences of Chorizanthe pungens var. pungens, and a development is 
planned for a parcel owned by the Pebble Beach Corporation (Vern Yadon, 
retired, Museum of Natural History, Pacific Grove, pers. comm., 1991). 
Other small scattered occurrences within maritime chaparral habitat may 
become affected by residential development and by a realignment of 
Highway 101.
    Chorizanthe pungens var. pungens was probably extirpated from a 
number of historical locations in the Salinas Valley, primarily due to 
conversion of the original grassland and valley oak woodland habitat to 
agricultural crops. One occurrence at Manzanita County Park near 
Prunedale currently is not protected. A route realignment proposed for 
Highway 101 in northern Monterey County could destroy scattered 
occurrences (R. Morgan, pers. comm., 1991).
    The Fort Ord Army Base probably supports the largest extant 
population of Chorizanthe pungens var. pungens. In recent years, road 
development and construction of an ammunition supply depot on the base 
eliminated some C. pungens var. pungens habitat, and fragmented the 
remaining habitat. As mitigation for recent construction, the 
Department of Defense, with the assistance of the California Native 
Plant Society, established a series of small preserves, ranging in size 
from 1 to 15 acres, for the purpose of protecting rare species, 
including C. pungens var. pungens. The small size of these preserves, 
however, is not likely to be sufficient to ensure long-term protection 
for the plant. Just prior to publication of the proposal to list the 
five taxa under discussion, the Department of Defense announced 
intentions to close the base at Fort Ord. The impact that base closure 
will have on C. pungens var. pungens is not known at this time but will 
largely be determined by the intended uses of the land by the agencies 
or entities to which the land will be transferred.
    In southern Santa Cruz County, Chorizanthe pungens var. pungens is 
known to occur at Sunset and Manresa State Beaches, and within the past 
few years, scattered occurrences were found as far north as Day Valley 
(R. Morgan, pers. comm., 1991). Populations at Sunset State Beach 
possibly were inadvertently affected by trampling and the introduction 
of non-native species during dune stabilization projects.
    Populations of Chorizanthe robusta var. robusta in coastal dune and 
coastal scrub habitats were affected by residential development, 
recreational use, and the introduction of non-native species. 
Management plans for Chorizanthe robusta var. robusta at Sunset State 
Beach are not yet developed. Sunset State Beach has the largest known 
population, numbering about 5,000 individuals in 1988 (CNDDB 1993). 
Smaller populations of a few hundred each near Manresa State Beach and 
on property owned by the city of Santa Cruz are not currently 
protected. The city will be developing a management plan to manage the 
property as a ``low impact'' park and intends to protect habitat for 
the plant (Ken Thomas, City of Santa Cruz, pers. comm., 1993).
    A patch of 300 individuals of Chorizanthe robusta var. robusta that 
was reported in 1985 from Manresa State Beach could not be relocated in 
1990 (CNDDB 1990). Efforts were started at Sunset State Beach to 
restore the native dune species by removing the introduced non- native 
species (Ferreira 1989). If the presence of Chorizanthe robusta var. 
robusta is taken into consideration in areas targeted for such 
restoration, impacts to the plant may be avoided.
    Virtually the entire range of Chorizanthe robusta var. hartwegii 
occurs on three parcels, all in private ownership. Two parcels, 
totaling 282 acres, are currently proposed for a residential 
development and golf course named Glenwood Estates Development (City of 
Scotts Valley 1989). Surveys indicated that suitable habitat for C. 
robusta var. hartwegii occupied 12 acres of the 282 acres of the two 
Glenwood Estates parcels, and 10 percent of this suitable habitat was 
occupied by the C. robusta var. hartwegii (Habitat Restoration Group 
1992). One other 116-acre parcel was planned for residential 
development, but the ownership was transferred to a software 
development and marketing firm that intends to establish world 
headquarters on the site. The firm indicated that the pending expansion 
of its global headquarters would affect less than 20 percent of the 
116-acre parcel (Pat Welch, Borland Corporation, pers. comm., 1993). 
The firm expressed intention to set aside habitat for C. robusta var. 
hartwegii, but since no legal protection currently exists for any of 
the known populations of the plant, C. robusta var. hartwegii is 
threatened with the direct destruction of a portion of currently 
occupied habitat and with secondary impacts as discussed under Factor 
E.
    Historical and continuing threats to Erysimum teretifolium include 
the direct removal of habitat by sand quarrying and residential 
development. Alteration of habitat may also be occurring in the form of 
increased canopy density within the Ben Lomond sandhills as a result of 
fire suppression. Currently, the only population that is potentially 
protected is on the recently acquired Quail Hollow Ranch site; however, 
development of recreational facilities is proposed for a portion of the 
ranch (County of Santa Cruz 1990). The suppression of wildfires within 
the Santa Cruz mountains caused the density of woodland within the pine 
sandhill community to increase, which in turn may reduce the 
availability of suitable habitat for the plant (California Native Plant 
Society 1986).
    The largest population of Erysimum teretifolium, located at the 
Quail Hollow Quarry, contains about 75 percent of the total number of 
known individuals of this species (approximately 5,400 individuals) 
(Bittman 1986). This population was already reduced in size by sand 
quarrying, and ongoing quarrying will likely continue to reduce the 
size of the population. A current proposal to expand mining operations 
at this quarry would eliminate habitat supporting several hundred 
individuals of E. teretifolium, as well as an undetermined number of 
Chorizanthe pungens var. hartwegiana (Strelow 1993). Of the remaining 
populations, none comprise over 400 individuals, and about half total 
less than 100 individuals each (Bittman 1986). Aside from the largest 
population, several of the smaller populations were also reduced in 
size by quarrying, as well as by development of private lots. 
Occurrences of the plant were repeatedly vandalized in the Bonny Doon 
area (California Native Plant Society 1986), apparently by landowners 
intent on developing their properties. Quail Hollow Ranch, a site which 
supports less than 300 plants, was recently acquired as a park through 
the joint efforts of The Nature Conservancy, Santa Cruz County, and the 
State of California. However, management plans developed for the county 
portion of Quail Hollow Ranch may include development of recreational 
facilities, which may affect E. teretifolium (County of Santa Cruz 
1990).
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. No evidence of collection for commercial, 
scientific, recreational, or educational purposes exists; however, acts 
of vandalism have impacted Erysimum teretifolium and Chorizanthe 
pungens var. hartwegiana. In addition, increased awareness of the need 
for protection of these species could increase the threat of vandalism 
to these plants and their habitats.
    At least one population of Erysimum teretifolium was destroyed by a 
private landowner during and shortly after the plant was processed for 
endangered status by CDFG in 1981 (CNDDB 1992). Other occurrences of 
vandalism of this species were reported from a sand and gravel mine 
(Bittman 1986). A parcel of land owned by the San Lorenzo Valley Water 
District that supports several of the unique elements of the Ben Lomond 
sandhills habitat, including Chorizanthe pungens var. hartwegiana, was 
badly damaged by off-road vehicles despite efforts to fence off the 
area by the District.
    C. Disease or predation. Two of three populations of Chorizanthe 
robusta var. hartwegii were grazed by horses in Scotts Valley. No data 
exist to substantiate whether grazing threatens this plant. No 
information exists concerning the threat of disease or predation to the 
other three plants.
    D. The inadequacy of existing regulatory mechanisms. Under the 
Native Plant Protection Act (Division 2, Chapter 10, sec. 1900 et seq. 
of the Fish and Game Code) and the California Endangered Species Act 
(Division 3, Chapter 1.5, sec. 2050 et seq.), the California Fish and 
Game Commission listed Erysimum teretifolium as endangered in 1981. 
Though both the Native Plant Protection Act and the California 
Endangered Species Act prohibit the ``take'' of State-listed plants 
(Chapter 10, sec. 1908, and Chapter 1.5, sec. 2080), State law does not 
protect the plants from taking via habitat modification or land use 
change by the landowner. After CDFG notifies a landowner that a State-
listed plant grows on his or her property, State law requires only that 
the landowner notify the agency ``at least 10 days in advance of 
changing the land use to allow salvage of such plant'' (Chapter 10, 
sec. 1913). Although these State laws provide a measure of protection 
to the species, these laws are not adequate to protect the species in 
all cases. Numerous activities do not fall under the purview of this 
legislation, such as certain projects proposed by the Federal 
government and projects falling under State statutory exemptions. Where 
overriding social and economic considerations can be demonstrated, 
these laws allow project proposals to go forward, even in cases where 
the continued existence of the species may be jeopardized or where 
adverse impacts are not mitigated to the point of insignificance.
    The California Environmental Quality Act requires that 
environmental documents disclose the full scope of impacts anticipated 
to sensitive resources within a project area. The initial documentation 
of a project in Chorizanthe robusta var. hartwegii habitat failed to 
include adequate information concerning the presence of and the 
potential impacts to this plant. A lawsuit settlement required that 
additional surveys of occupied and suitable but unoccupied habitat for 
the plant be completed (Jane Haines, Environmental Law Services, in 
litt., 1992). However, the lawsuit failed to specify that the 
information was to be used in redesigning the project to provide 
adequate protection for the plant.
    Part of the environmental review process under the California 
Environmental Quality Act for projects that result in the loss of sites 
supporting these plant species generally includes the development of 
mitigation plans. Such plans may involve establishing long-term 
protection for certain sites by designating them as ``reserves,'' 
enhancing degraded sites to improve or extend suitable habitat, 
transplanting affected species to an off-site location, and/or creating 
artificial habitat. Proponents for the Glenwood Estates Development 
proposed a mitigation plan that calls for establishing reserves that 
would set aside 0.9 acre of habitat occupied by approximately 90 
percent of the total number of Chorizanthe robusta var. hartwegii 
individuals, as well as an additional 6 acres of suitable but 
unoccupied habitat (APC International, Inc. 1992). Although the project 
proponents have the intention of setting aside the largest 
concentrations, and therefore the largest number of individuals of C. 
robusta var. hartwegii, the distribution of this plant is already so 
restricted that any loss would be considered biologically significant. 
A review of past mitigation measures applied to other species similar 
to C. robusta var. hartwegii in their very narrow distributions have 
indicated that such measures failed to adequately effect long-term 
protection. Frequently cited reasons include inadequate reserve size, 
inadequate buffer zones, and inappropriate adjacent land uses that 
result in the disruption of ecological processes affecting soil and 
water conditions and pollinator and seed disperser populations (Howald 
1992). Furthermore, areas that currently support smaller concentrations 
of this plant or areas of suitable habitat that are currently 
unoccupied by the plant would not be protected from habitat alteration 
and would be lost for future recovery efforts.
    Mitigation plans for State-listed species are typically formalized 
in a Mitigation Agreement between CDFG and the project proponent. 
Although C. robusta var. hartwegii is not currently State listed, CDFG 
attempted to secure a Mitigation Agreement because of its concern over 
the effects of the project to the plant. However, CDFG was not able to 
reach an agreement with the Glenwood Development Company. CDFG believes 
that the reserves, as delineated, will not be adequate to ensure long-
term viability of the resources targeted for protection. Furthermore, 
no compensation was offered for the loss of resources that will not be 
avoided (Hunter, in litt., 1993).
    The city of Scotts Valley has regulatory authority over 90 percent 
of the lands within the proposed project area. They approved the 
project acknowledging that it would have unmitigable impacts to 
Chorizanthe robusta var. hartwegii by issuing a statement of overriding 
considerations. Although the California Environmental Quality Act 
process allows for such approval, the goal of requiring mitigation that 
secures long-term protection for plants that qualify for State listing 
has not been achieved. The Santa Cruz County Planning Commission, which 
has regulatory authority over the remaining 10 percent of the lands 
within the proposed project area, recently rejected approval of the 
project. This decision, however, is being appealed by the project 
proponent to the County Board of Supervisors.
    E. Other natural or manmade factors affecting its continued 
existence. The introduction of non-native species to coastal dunes for 
the purpose of sand stabilization adversely affected native dune flora, 
probably including Chorizanthe robusta var. robusta and Chorizanthe 
pungens var. pungens. Such introduced species as European beach grass 
(Ammophila arenaria), sea-fig (Carpobrotus ssp.), and iceplant 
(Mesembryanthemum ssp.) invaded dune habitats and in many cases 
outcompeted the native flora. While public agencies are now aware of 
the adverse impacts of introducing non-native species, efforts to 
restore dune habitats with native species may also result in further 
impacts to sensitive plants, if not done properly.
    As currently proposed, the Glenwood Estates Development would 
destroy numerous small colonies of Chorizanthe robusta var. hartwegii, 
but would set aside several reserves for the densest concentrations of 
the plant. These reserves would be left as small islands within the 
golf course portion of the project. Grading of adjacent portions of the 
course may alter surface and subsurface hydrologic processes of these 
remaining reserves. In addition, the reserves may be affected by the 
application of pesticides, herbicides, and fertilizers on the adjacent 
course. Application of such chemicals may alter the balance of 
nutrients in the soil and may affect the ability of C. robusta var. 
hartwegii to survive, either directly or through competition with 
exotic species that may be favored by application of these chemicals 
(Edmondson 1987; Carl Wishner, botanist, pers. comm., 1993).
    Typically, annuals and other monocarpic plants (individuals that 
die after flowering and fruiting), such as the four plants that are the 
subject of this final rule, are vulnerable to random fluctuations or 
variation (stochasticity) in annual weather patterns and other 
environmental factors (Huenneke et al. 1986). All four of the plants 
are restricted to habitats of limited distribution within a small 
geographic range. All but Chorizanthe pungens var. pungens are 
currently vulnerable to stochastic extinction due to their small and 
isolated populations. Chorizanthe robusta var. hartwegii and 
Chorizanthe robusta var. robusta are particularly threatened by this 
factor as C. robusta var. hartwegii is found on Santa Cruz mudstones 
and Purisima sandstones within a 1-mile diameter in Scotts Valley in 
the Santa Cruz Mountains and C. robusta var. robusta is found in only 
three locations over a 12-mile range in southern Santa Cruz County.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these taxa in determining to make this rule 
final. Because three of the four plants are threatened by one or more 
of the following factors--urban and agricultural development, 
recreational use, sand mining, dune stabilization projects, or 
extinction from stochastic events--the preferred action is to list 
Chorizanthe pungens var. hartwegiana, Chorizanthe robusta (inclusive of 
vars. hartwegii and robusta), and Erysimum teretifolium as endangered. 
Other alternatives to this action were considered but not preferred 
because not listing these species at all or listing these species as 
threatened would not provide adequate protection and would not be in 
keeping with the purposes of the Act.
    Chorizanthe pungens var. pungens is also threatened by the same 
factors listed above, as well as by ongoing military activities on the 
Fort Ord Army Base and its pending disposal. However, the wider range 
and greater number of populations and individuals of this species 
indicate that it is not now in danger of extinction throughout a 
significant portion of its range, as are the other three species, but 
is likely to become endangered within the foreseeable future. 
Therefore, the preferred action is to list C. pungens var. pungens as 
threatened. Not listing this species would not provide adequate 
protection and would not be in keeping with the purposes of the Act. 
For reasons discussed below, the Service is not designating critical 
habitat for these species at this time.

Critical Habitat

    Section 4(a)(3) of the Act, as amended, requires that, to the 
maximum extent prudent and determinable, the Secretary designate 
critical habitat at the time a species is determined to be endangered 
or threatened. Section 4(b)(6)(C) further indicates that a concurrent 
critical habitat designation is not required if the Service finds that 
a prompt determination of endangered or threatened status is essential 
to the conservation of the involved species or that critical habitat is 
not then determinable. The Service finds that designation of critical 
habitat for Chorizanthe robusta and Chorizanthe pungens var. pungens is 
prudent but presently not determinable and that designation of critical 
habitat for Chorizanthe pungens var. hartwegiana and for Erysimum 
teretifolium is not prudent.
    The Service will propose designation of critical habitat for 
certain populations of Chorizanthe robusta and Chorizanthe pungens var. 
pungens that would likely not be imperiled by the threat of vandalism, 
collecting, or other human activities. Section 7(a)(2) requires Federal 
agencies to insure that their activities are not likely to destroy or 
adversely modify critical habitat of a listed species. This stipulation 
for Federal agencies is in addition to the requirement to insure that 
their actions do not jeopardize the continued existence of federally 
listed species. Therefore on lands where Federal actions, funding, 
authorizations, or licensing occurs, critical habitat would provide an 
added benefit to the conservation of these species. On non-Federal 
land, the designation of critical habitat may result in increased 
awareness of the need for protection. The designation of critical 
habitat could be useful for State landowners because they could use the 
designation to identify areas of special concern and to help establish 
priorities for their own land management.
    Section 4(b)(2) of the Act requires the Service to consider 
economic and other impacts of designating a particular area as critical 
habitat. The Service must evaluate the effects of activities that occur 
within the ranges of these plants. The Service must gather data on 
precise habitat needs and ownership boundaries to be able to precisely 
define the critical habitat of these two plant taxa. In addition, the 
Service must analyze the economic impacts that could result from the 
designation of particular areas as critical habitat. Designation of 
critical habitat for Chorizanthe robusta and Chorizanthe pungens var. 
pungens is currently not determinable due to the need for this type of 
information. A proposal to designate critical habitat at this time 
would delay this final rule to list the species as threatened or 
endangered. The Service believes that a prompt determination of 
endangered or threatened status for these species is essential to 
ensure the benefits of conservation measures provided to species upon 
listing under the Act. Once the Service has gathered the necessary 
data, it will publish a proposal to designate critical habitat for 
Chorizanthe robusta and Chorizanthe pungens var. pungens. 
    Each of the four plants face anthropogenic threats (see Factor A 
and Factor B in ``Summary of Factors Affecting the Species''), and many 
of the remaining populations of these species occur on privately owned 
property for which development is proposed or on which vandalism has 
already been noted. Due to the small number of populations of C. 
pungens var. hartwegiana and Erysimum teretifolium and the documented 
vandalism and proposed development of their habitats, the publication 
of precise maps and descriptions of critical habitat in the Federal 
Register would make them more vulnerable to such incidents and could 
contribute to their decline. In addition, no known Federal action, 
authorization, licensing, or funding on these lands exist, hence a 
designation of critical habitat would provide no additional protection 
under section 7 of the Act. Therefore, it would not be prudent to 
designate critical habitat for these two species. The appropriate 
agencies and landowners can be notified of the locations and management 
needs of these plants. Protection of these populations will be 
addressed through the recovery process.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Endangered Species Act include recognition, 
recovery actions, requirements for Federal protection, and prohibitions 
against certain activities. Recognition through listing encourages and 
results in conservation actions by Federal, State, and private 
agencies, groups, and individuals. The Endangered Species Act provides 
for possible land acquisition and cooperation with the States and 
requires that recovery actions be carried out for all listed species. 
The protection required of Federal agencies and the prohibitions 
against certain activities involving listed plants are discussed, in 
part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) requires Federal agencies to insure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into formal consultation with the Service.
    Federal activities potentially impacting one or more of the four 
taxa include road and building construction projects and perhaps 
waterfowl management practices on Federal land. Populations of one of 
the four plants occur, at least in part, on Federal land. Fort Ord, 
which is managed by the Department of Defense, supports populations of 
Chorizanthe pungens var. pungens on the western and southern portion of 
the base. The Department of Defense indicated that closure and transfer 
of the base at Fort Ord will be phased over many years. Therefore, 
potential impacts to C. pungens var. pungens as a result of the land 
transfer cannot be determined at this time. C. pungens var. pungens is 
also thought to occur on the Salinas River National Wildlife Refuge, 
which is managed by the U.S. Fish and Wildlife Service; currently no 
activities occur on the Refuge that are known to affect the C. pungens 
var. pungens.
    Activities relating to the discharge of fill materials into waters 
of the United States and other special aquatic sites are regulated by 
section 404 of the Clean Water Act and may affect Chorizanthe pungens 
var. hartwegiana and Erysimum teretifolium where they occur adjacent to 
sand quarry operations. The pending proposal to develop the two 
Glenwood Estates parcels in Scotts Valley may also involve the 
discharge of fill materials. The Army Corps of Engineers would be 
required to consult with the Service on any section 404 permitting 
actions that may affect these species.
    The Act and its implementing regulations found at 50 CFR 17.61, 
17.62, and 17.63 for endangered species and 17.71 and 17.71 for 
threatened species set forth a series of general prohibitions and 
exceptions that apply to all endangered or threatened plants. With 
respect to the four plant taxa that are the subject of this final rule, 
all trade prohibitions of section 9(a)(2) of the Act, implemented by 50 
CFR 17.61 and 17.71, apply. These prohibitions, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to import or export, transport in interstate or foreign commerce in the 
course of a commercial activity, sell or offer for sale in interstate 
or foreign commerce, or to remove and reduce to possession any such 
species from areas under Federal jurisdiction. Seeds from cultivated 
specimens of threatened plant species, in this case Chorizanthe pungens 
var. pungens, are exempt from these prohibitions provided that a 
statement of ``cultivated origin'' appears on their containers. In 
addition, for listed plants, the Act prohibits malicious damage or 
destruction of any such species on any area under Federal jurisdiction, 
and the removal, cutting, digging up, or damaging or destroying any 
such species on any other area in knowing violation of any State law or 
regulation, or in the course of any violation of a State criminal 
trespass law. Certain exceptions apply to agents of the Service and 
State conservation agencies. The Act and 50 CFR 17.62 and 17.63 also 
provide for the issuance of permits to carry out otherwise prohibited 
activities involving endangered or threatened plant species under 
certain circumstances. It is anticipated that few trade permits would 
ever be sought or issued because the four plant species are not common 
in cultivation or in the wild. Requests for copies of the regulations 
on plants and inquiries regarding them may be addressed to the Office 
of Management Authority, U.S. Fish and Wildlife Service, room 420C, 
4401 North Fairfax Drive, Arlington, Virginia 22203-3507 (703/358-
2104).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that an Environmental 
Assessment, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act of 1973, as amended. A notice outlining the Service's 
reasons for this determination was published in the Federal Register on 
October 25, 1983 (48 FR 49244).

References Cited

APC International, Inc. 1992. Letter to Robert J. Hannah, dated 
October 6, 1992.
Army Corps of Engineers, Sacramento District. 1992. Flora and fauna 
baseline study of Fort Ord, California. December. With technical 
assistance from Jones and Stokes Associates, Inc. (JSA 90-214) 
Sacramento, California.
Bittman, R. 1986. Element conservation plan for Erysimum 
teretifolium. The Nature Conservancy, San Francisco, California. 5 
pp.
California Native Plant Society. 1986. California Native Plant 
Status Report for Erysimum teretifolium. Sacramento, California. 3 
pp.
California Natural Diversity Data Base. 1990. Unpublished rare plant 
occurrence data. Sacramento, California.
California Natural Diversity Data Base. 1992. Unpublished rare plant 
occurrence data. Sacramento, California.
California Natural Diversity Data Base. 1993. Unpublished rare plant 
occurrence data. Sacramento, California.
Caughman, M., and J.S. Ginsberg. 1987. California Coastal Resource 
Guide. University of California Press, Los Angeles.
City of Scotts Valley. 1989. Final supplemental environmental impact 
report for Glenwood Estates and Golf Course Development, Scotts 
Valley, California. Prepared by Powers & Associates for the City of 
Scotts Valley.
City of Scotts Valley. 1992. Resolution #1443.1 of the City Council 
of the City of Scotts Valley.
County of Santa Cruz. 1990. Quail Hollow Ranch master plan. Prepared 
by Jeff Oberdorfer & Associates, Inc., for the County of Santa Cruz.
Eastwood, A. 1938. Two new wallflowers. Leaflets of Western Botany. 
Vol. II, No. 5., p. 73.
Eastwood, A. 1939. Erysimum filifolium. Leaflets of Western Botany. 
Vol. II, No. 8., p. 144.
Edmondson, J. 1987. Hazards of the game. Audubon. November 1987, pp. 
24-37.
Ertter, B. 1990. Report on the results of a panel to evaluate the 
taxonomic validity of Chorizanthe robusta var. hartwegii. 
Unpublished report submitted to the U.S. Fish and Wildlife Service.
Ferreira, J. 1989. Project status report on dune restoration at 
Sunset State Beach. Unpublished report no. 219-410-01-04. California 
Department of Parks and Recreation.
Griffin, J.R. 1964. Isolated Pinus ponderosa forests on sandy soils 
near Santa Cruz, California. Ecology 45 (1964):410-412.
Habitat Restoration Group. 1992. Glenwood Estates rare plant survey. 
Prepared for the City of Scotts Valley, September 3, 1992.
Harding Lawson Associates. 1991. Polo Ranch draft environmental 
impact report. Prepared for the City of Scotts Valley.
Hickman, J.C. 1993. Chorizanthe. In: Hickman, J.C. (ed.). The Jepson 
Manual; Higher Plants of California. University of California Press, 
Berkeley, California. Pp. 856-860.
Holland, R.F. 1986. Preliminary descriptions of the terrestrial 
natural communities of California. Unpublished report, California 
Department of Fish and Game, Sacramento, California.
Howald, A.M. 1992. Finding effective approaches to endangered plant 
mitigation. Unpub. rept. California Department of Fish and Game, 
Yountville Office.
Huenneke, L.F., K. Holsinger, and M.E. Palmer. 1986. Plant 
population biology and the management of viable plant populations. 
In: Wilcox, B.A., P.E. Brussard, B.G. Marcot (eds.). The Management 
of Viable Populations: Theory, Applications, and Case Studies. 
Center for Conservation Biology, Stanford University, Stanford, 
California. Pp. 169-183.
Jepson W.L. 1914. Polygonaceae. A flora of California, vol. 1, part 
4: 376-428. Associated Students Store, University of California, 
Berkeley.
John Gilchrist and Associates. 1990. Santa Cruz Aggregates Quail 
Hollow Quarry revised draft environmental impact report. Prepared 
for the County of Santa Cruz.
Marangio, M.S. 1985. Preservation study: sandhills biotic 
communities of Santa Cruz County, California. Unpublished master's 
thesis, University of California, Berkeley.
Marangio, M.S., and R. Morgan. 1987. The endangered sandhills plant 
communities of Santa Cruz County. In: Elias, T.S. (ed.). 
Conservation and management of rare and endangered plants. 
California Native Plant Society, Sacramento. Pp. 267-274.
Parry, C.C. 1889. Chorizanthe, R. Brown. Review of certain species 
heretofore improperly characterized or wrongly referred; with two 
new species. Proc. Davenport Academy of Natural Sciences 5:174-184.
Reveal, J.L., and C.B. Hardham. 1989. A revision of the annual 
species of Chorizanthe (Polygonaceae: Eriogonoideae). Phytologia 
66:98-198.
Reveal, J.L., and R. Morgan. 1989. A new combination in Chorizanthe 
robusta C. Parry (Polygonaceae: Eriogonoideae) from California. 
Phytologia 67(5):357-360.
Sawyer, J.O., D.A. Thornburgh, and J.R. Griffin. 1988. Mixed 
evergreen forest. In: Barbour, M.G., and J. Major (eds.). 
Terrestrial Vegetation of California. California Native Plant 
Society, Special Publication No. 9. Pp. 359-381.
Strelow, S. 1993. Revised draft environmental impact report for 
Santa Cruz Aggregates, Quail Hollow Quarry.
Thomas, J.H. 1961. Flora of the Santa Cruz Mountains of California. 
Stanford University Press, Stanford, California.
Zinke, P.J. 1988. The redwood forest and associated north coast 
forests. In: Barbour, M.G., and J. Major (eds.). Terrestrial 
Vegetation of California. California Native Plant Society, Special 
Publication No. 9. Pp. 679-698.

Author

    The primary author of this final rule is Connie Rutherford, Ventura 
Field Office (see ADDRESSES section), telephone 805-644-1766.

List Subjects in 50 CFR Part 17

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

Regulations Promulgation

    Accordingly, part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations is amended as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise 
noted.

    2. Amend Sec. 17.12(h) by adding the following, in alphabetical 
order under the families ``Brassicaceae--Mustard family'' and 
``Polygonaceae-- Buckwheat family,'' to the List of Endangered and 
Threatened Plants:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                              Species                                                                                                                   
-------------------------------------------------------------------          Historic range             Status     When listed    Critical     Special  
         Scientific name                     Common name                                                                          habitat       rules   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *                                                                     
Brassicaceae--Mustard family:                                                                                                                           
                                                                      * * * * * * *                                                                     
    Erysimum teretifolium.......  Ben Lomond wallflower...........  U.S.A. (CA)....................  E                     528           NA           NA
                                                                      * * * * * * *                                                                     
Polygonaceae--Buckwheat family:                                                                                                                         
                                                                      * * * * * * *                                                                     
    Chorizanthe pungens var.      Ben Lomond spineflower..........  U.S.A. (CA)....................  E                     528           NA           NA
     hartwegiana.                                                                                                                                       
                                                                      * * * * * * *                                                                     
    Chorizanthe pungens var.      Monterey spineflower............  U.S.A. (CA)....................  T                     528           NA           NA
     pungens.                                                                                                                                           
                                                                      * * * * * * *                                                                     
    Chorizanthe robusta.........  Robust spineflower..............  U.S.A. (CA)....................  E                     528           NA           NA
                                                                      * * * * * * *                                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: January 31, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-2547 Filed 2-3-94; 8:45 am]
BILLING CODE 4310-55-P