Endangered and Threatened Wildlife and Plants; 12-month Finding on a Petition To List Sclerocactus brevispinus, 53211-53222 [E7-18195]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 180 (Tuesday, September 18, 2007)]
[Proposed Rules]
[Pages 53211-53222]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18195]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 12-month Finding 
on a Petition To List Sclerocactus brevispinus (Pariette cactus) as an 
Endangered or Threatened Species; Taxonomic Change From Sclerocactus 
glaucus to Sclerocactus brevispinus, S. glaucus, and S. wetlandicus

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding and proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list Sclerocactus brevispinus 
(Pariette cactus) as an endangered or threatened species under the 
Endangered Species Act of 1973, as amended (Act). We also propose to 
change the taxonomy of the currently threatened Sclerocactus glaucus 
``complex'' to three distinct species: Sclerocactus brevispinus, S. 
glaucus, and S. wetlandicus. Because these species make up what was 
formerly the ``complex'', each will maintain its status of being listed 
as threatened.
    After review of all available scientific and commercial 
information, we find that reclassifying S. brevispinus as endangered is 
warranted but precluded by higher priority actions to amend the Lists 
of Endangered and Threatened Wildlife and Plants. However, S. 
brevispinus is currently listed as threatened as part of the S. glaucus 
(Uinta Basin hookless cactus) complex.
    We further propose to revise the taxonomy of S. glaucus (Uinta 
Basin hookless cactus) (previously considered a ``complex''), which is 
currently listed as a threatened species. In accordance with the best 
available scientific information, we propose to recognize the three 
distinct species: S. brevispinus, S. glaucus, and S. wetlandicus. 
Because each of these three species constitute the S. glaucus complex, 
we consider all three species to be threatened under the Act. In 
addition, we propose common names for S. glaucus and S. wetlandicus.

DATES: The finding announced in this document was made on September 18, 
2007. We will accept comments on the proposed taxonomic change from all 
interested parties until November 19, 2007.

ADDRESSES: Comments on Proposed Taxonomic Change: If you wish to 
comment on the proposed rule to revise the taxonomy of S. glaucus, you 
may submit your comments and materials by any one of several methods:
    1. By mail or hand-delivery to: Larry England, Utah Field Office, 
U.S. Fish and Wildlife Service, 2369 W. Orton Circle, Suite 50, West 
Valley City, UT 84119.
    2. By electronic mail (e-mail) to: fw6_sclerocactus@fws.gov. 
Please see the Public Comments Solicited section for other information 
about electronic filing.
    3. By fax to: the attention of Larry England at 801-975-3331.
    4. By the Federal eRulemaking Portal at: https://
www.regulations.gov. Follow the instructions for submitting comments.
    Supporting Documents for 12-Month Finding: Supporting documents for 
this finding are available for public inspection, by appointment, 
during normal business hours at the Utah Field Office, U.S. Fish and 
Wildlife Service, 2369 W. Orton Circle, Suite 50, West Valley City, UT 
84119. The petition finding, related Federal Register notices, the 
Court Order, and other pertinent information may be obtained on the 
Internet at https://www.fws.gov/mountain-prairie/species/plants/
Pariettecactus/. We ask the public to submit any new data or 
information concerning the status of or threats to Sclerocactus 
brevispinus to us at the above address. This information will help us 
monitor and encourage the ongoing conservation of this species, and 
formulate a future proposed listing rule, should one be necessary.

FOR FURTHER INFORMATION CONTACT: Larry England, Utah Field Office (see 
ADDRESSES) (telephone 801-975-3330; facsimile at 801-975-3331). Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Service (FIRS) at 800-877-8339.

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SUPPLEMENTARY INFORMATION:

Background

    This document consists of: (1) A proposed rule to change the 
taxonomy of the currently threatened Sclerocactus glaucus ``complex'' 
to three distinct species: Sclerocactus brevispinus, S. glaucus, and S. 
wetlandicus, each of which will continue to be listed as threatened; 
and (2) a 12-month finding on a petition to list Sclerocactus 
brevispinus (Pariette cactus) as an endangered or threatened species 
under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 
1531 et seq.). For the sake of convenience, we present the proposed 
taxonomic change first, followed by the 12-month finding.

Proposed Rule for Taxonomic Change From Sclerocactus glaucus to 
Sclerocactus brevispinus, S. glaucus, and S. wetlandicus

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning Sclerocactus taxonomy, including any evaluations of 
the studies cited in this notice.
    You may submit your comments and materials concerning this proposal 
by one of several methods (see ADDRESSES). If you use e-mail to submit 
your comments, please include ``Attn: Pariette Cactus'' in your e-mail 
subject header, preferably with your name and return address in the 
body of your message. If you do not receive a confirmation from the 
system that we have received your e-mail, contact us directly by 
calling our Utah Field Office at 801-975-3330. Please note that we must 
receive comments by the date specified in the DATES section in order to 
consider them in our final determination and that the e-mail address 
fw6_sclerocactus@fws.gov will be closed out at the termination of the 
public comment period.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Utah Field Office, U.S. Fish and Wildlife Service, 2369 W. 
Orton Circle, Suite 50, West Valley City, UT 84119 (telephone 801-975-
3330).

Taxonomic Classification

    The original listing rule (44 FR 58868, October 11, 1979) included 
all hookless (straight central spines) Sclerocactus populations at the 
extreme periphery of the Sclerocactus genus' distribution in western 
Colorado and northeastern Utah, and referred to them as Sclerocactus 
glaucus per L. Benson (1966, pp. 50-57; 1982, pp. 728-729). This 
taxonomic classification is no longer supported by results of genetic 
and morphological research. The separation of Sclerocactus glaucus into 
three species (S. glaucus, S. wetlandicus, and S. brevispinus) is 
reinforced by recent genetic studies (Porter et al. 2000, pp. 14, 16; 
Porter et al. 2006, pp. 6, 7, 10), common garden experiments 
(Hochstatter 1993, pp. 94, 98; Welsh et al. 2003, p. 79), and a 
reevaluation of morphological characteristics (Heil and Porter 2004, 
pp. 200-201; Hochstatter 1993b, pp. 93, 97, 99).
    Revisions to the taxonomy of S. glaucus began in 1989 (Hochstatter 
1989 in 1993, pp. 91-92; Heil and Porter 1994, pp. 25-27; Porter et al. 
2000, pp. 8-23; Welsh et al. 2003, p. 79). By 2004, the Flora of North 
America recognized the plant S. glaucus (that we listed in 1979) as 
three distinct species: S. glaucus (Uinta Basin hookless cactus), S. 
wetlandicus (no common name), and S. brevispinus (Pariette cactus). 
Thus, we now consider the Uinta Basin hookless cactus ``complex'' to be 
comprised of three distinct species: S. glaucus, S. wetlandicus, and S. 
brevispinus, and we propose to amend the List of Endangered and 
Threatened Plants at 50 CFR 17.12(h) to reflect this revision to 
taxonomy.
    Sclerocactus glaucus is endemic to western Colorado. Its common 
name, Uinta Basin hookless cactus, refers to a geological area in Utah. 
Therefore, the common name of Uinta Basin hookless cactus is a misnomer 
that would be more accurately applied to S. wetlandicus, which 
currently has no common name. We believe that ``Colorado hookless 
cactus'' is a more appropriate common name for S. glaucus, and we 
propose to adopt that common name.
    Sclerocactus wetlandicus (no common name) was first described in 
1989 (Hochstatter 1989 in 1993, pp. 91-92), and comprises the bulk of 
the previously termed Uinta Basin hookless cactus complex in Utah (in 
the Uinta Basin proper). It is considered a separate population. As 
described above, we believe that the common name ``Uinta Basin hookless 
cactus'' is more appropriate for this species, and propose to adopt 
that common name.
    Sclerocactus brevispinus (Pariette cactus) is a morphologically 
unique Sclerocactus population occurring only in the Pariette Draw in 
the central Uinta Basin in Utah. This cactus is much smaller than 
either S. wetlandicus or S. glaucus, and retains the vegetative 
characteristics of juvenile S. wetlandicus individuals in adult 
flowering plants. At the time of the species listing in 1979, these 
smaller-statured individuals were thought to represent an ecotypic 
variation of S. glaucus. This unique cactus from Pariette Draw has been 
variously named S. wetlandicus var. ilseae (Hochstatter 1993, pp. 95-
97), S. brevispinus (Heil and Porter 1994, p. 26), and S. whipplei var. 
ilseae (Welsh et al. 2003, p. 79). We propose to adopt the taxonomic 
change accepted by the Flora of North America (Heil and Porter 2004, 
pp. 197-207) as S. brevispinus, and propose to adopt the common name 
``Pariette cactus'' for this species.
    In summary, in the Proposed Regulation Promulgation section of this 
document, we propose the taxonomic change from Sclerocactus glaucus to 
Sclerocactus brevispinus (Pariette cactus), Sclerocactus glaucus 
(Colorado hookless cactus), and Sclerocactus wetlandicus (Uinta Basin 
hookless cactus).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), and based on our implementation 
of the Office of Management and Budget's Final Information Quality 
Bulletin for Peer Review, dated December 16, 2004, we are to seek the 
expert opinions of appropriate and independent specialists regarding 
the science in proposed rules. Since the basis for this proposed 
taxonomic change has appeared in peer-reviewed journals, it is not 
necessary to seek additional peer review of this proposed rule.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;

[[Page 53213]]

    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. Since this proposed 
rule is simply a taxonomic change, this rule is not expected to 
significantly affect energy supplies, distribution, or use. Therefore, 
this action is not a significant energy action and no Statement of 
Energy Effects is required.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined under 
the authority of the National Environmental Policy Act of 1969, in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

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, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis.

12-Month Finding on a Petition To List Sclerocactus brevispinus 
(Pariette cactus) as Endangered or Threatened

    Section 4(b)(3)(B) of the Act requires that, for any petition that 
contains substantial scientific and commercial information that listing 
may be warranted, we make a finding within 12 months of the date of our 
receipt of the petition on whether the petitioned action is: (a) Not 
warranted, (b) warranted, or (c) warranted, but the immediate proposal 
of a regulation implementing the petitioned action is precluded by 
other pending proposals to determine whether any species is threatened 
or endangered, and expeditious progress is being made to add or remove 
qualified species from the Lists of Endangered and Threatened Wildlife 
and Plants. Such 12-month findings are to be published promptly in the 
Federal Register. Section 4(b)(3)(C) of the Act requires that a 
petition for which the requested action is found to be warranted but 
precluded be treated as though resubmitted on the date of such finding, 
and requiring a subsequent finding to be made within 12 months.

Previous Federal Actions

    On October 11, 1979, we published a final rule listing Sclerocactus 
glaucus (Uinta Basin hookless cactus) as threatened (44 FR 58868). On 
April 25, 2005, we received a petition, dated April 18, 2005, from the 
Center for Native Ecosystems and the Utah Native Plant Society, 
requesting that we: (1) List Sclerocactus brevispinus (Pariette cactus) 
as an endangered or threatened species under the provisions of section 
4 of the Act (independent of its current listing as threatened as part 
of S. glaucus); (2) promulgate an emergency listing rule; and (3) 
designate critical habitat concurrent with the listing. On October 10, 
2005, the petitioners entered a complaint in the U.S. District Court of 
Colorado seeking to compel us to list S. brevispinus as either 
threatened or endangered. Per an October 11, 2006, court-ordered 
settlement agreement, we agreed to publish a 90-day petition finding in 
the Federal Register on or before December 8, 2006.
    On December 14, 2006, we published a 90-day finding on this 
petition (71 FR 75215) in which we concluded that emergency listing was 
not necessary, but that the petition provided substantial information 
indicating that listing S. brevispinus as endangered or threatened may 
be warranted, and we initiated a status review. Please refer to that 
finding for greater detail concerning the listing history of 
Sclerocactus glaucus (Uinta Basin hookless cactus).
    This notice constitutes the 12-month finding on the April 25, 2005, 
petition to list Sclerocactus brevispinus (Pariette cactus) as an 
endangered or threatened species.

Species Description

    Cacti species of the Uinta Basin hookless cactus complex are 
described in the 90-day petition finding for Sclerocactus brevispinus 
(71 FR 75215, December 14, 2006). Descriptions were adapted from Heil 
and Porter 1994 (pp. 25-27), and Hochstatter 1993 (pp. 91, 95, and 99).

Biology and Distribution

    Sclerocactus brevispinus habitat is a sparsely vegetated desert 
shrubland dominated by Atriplex, Chrysothamnus, and Tetradymia species 
(USFWS 1990, p. 7). The species' life history is poorly known, but it 
is thought to be a long-lived perennial usually flowering after 3 or 4 
years. A broad assemblage of native bees, and possibly other insects 
including ants and beetles, pollinates S. brevispinus (USFWS 1990, p. 
7).
    Sclerocactus brevispinus grows on fine soils in clay badlands 
derived from the Uinta formation (USFWS 1990, p. 7). The species is 
restricted to one population in an area about 16 kilometers (km) (10 
miles (mi)) long by 8 km (5 mi) wide astride the Duchesne-Uintah County 
boundary on Bureau of Land Management (BLM), Ute Tribe, State of Utah, 
and private land. We estimate the total species population to be about 
8,000 individuals on approximately 7,200 hectares (ha) (18,000 acres 
(ac)), distributed largely across BLM and Ute Tribal lands.
    We do not have recent, long-term status or trend population data 
for Sclerocactus brevispinus.
    A 1985 species inventory documented a population of 3,795 
individuals on approximately 6,000 ha (15,000 ac) of BLM land, and 
minor amounts of State and private lands (BLM 1985, p. 4; Heil and 
Porter 1994, p. 45). BLM estimated that this population represented 75 
percent of the species population on BLM-managed lands (Sinclear 1985). 
Based on this information, we consider the Sclerocactus brevispinus 
population on BLM lands to be comprised of approximately 5,000 
individuals. BLM conducted an inventory in 2007, but its final data are 
not yet available. We estimate the total area of potential habitat for 
S. brevispinus on BLM lands to be approximately 6,000 ha (15,000 ac).
    The total population of Sclerocactus brevispinus on the Uintah and 
Ouray Reservation of the Ute Tribe, directly north and adjacent to BLM 
lands, is unknown. The Ute Tribe conducted an inventory in 2007, and 
preliminary results indicate an estimated 3,000 individuals (O'Hearn 
2007). However, the Tribe's final data are not yet

[[Page 53214]]

available. We estimate the total area of potential habitat for S. 
brevispinus on Ute Tribal lands, based on exposures of the Wagon Hound 
member of the Uinta formation with desert shrub vegetation, to be about 
1,200 ha (3,000 ac).

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and implementing regulations 
at 50 CFR part 424, set forth procedures for adding species to the 
Federal Lists of Endangered and Threatened Wildlife and Plants. In 
making this finding, we summarize below information regarding the 
status and threats to Sclerocactus brevispinus in relation to the five 
factors provided in section 4(a)(1) of the Act.
    In making this 12-month finding, we considered all scientific and 
commercial information received or acquired between the time of the 
initial petition (April 2005) and the end of the public comment period 
(February 12, 2007), and additional scientific information from ongoing 
species surveys and studies as they became available. During the public 
comment period (71 FR 75215, December 14, 2006), we received four 
comments and information on Sclerocactus brevispinus and the other two 
species in the Uinta Basin hookless cactus complex from private 
citizens, organizations, and other entities.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    The total range of Sclerocactus brevispinus comprises approximately 
7,200 ha (18,000 ac) (USFWS 2006, p. 2; Childs 2007, p. 5), within 
which suitable habitat is scattered in naturally occurring mosaics (BLM 
2005b, p. 3-30). The population is comprised of irregularly distributed 
occurrences across the landscape. Its entire known range occurs within 
active and pending oil and gas fields.

Oil and Gas Development

    Seventy-two percent of the total range of the species (5,209 ha /
12,865 ac) occurs within the approved Castle Peak/Eightmile Flat Oil 
and Gas Expansion Project (5,012 ha/12,530 ac) and the pending Gasco 
Uinta Basin Natural Gas Field Development Project (134 ha/335 ac) on 
BLM lands (USFWS 2006, p. 3). Current well-field development in these 
project areas has resulted in direct and indirect effects to 765 ha 
(1,891 ac) of Sclerocactus brevispinus habitat (BLM 2005b, p. 4.1-26). 
BLM proposes to double the number of wells and the amount of surface 
disturbance in cactus habitat (BLM 2005b, p. 4.2-14). An additional 848 
ha (2,095 ac) of S. brevispinus' range (12 percent) contains wells 
drilled in the Sand Wash and Greater Boundary Oil and Gas Field 
adjacent to the Castle Peak/Eightmile Flat Project (USFWS 2006, p. 7). 
In summary, 100 percent of S. brevispinus' range on BLM land (84 
percent of the species' total range) is included within oil and gas 
development project boundaries.
    In addition, the Ute Tribe has leased occupied S. brevispinus 
habitat north of and directly adjacent to the Castle Peak/Eightmile 
Flat Project for oil and gas development. Nine wells, affecting 215 S. 
brevispinus individuals, are scheduled for drilling in 2007 (Childs 
2007, p. 6). The biological assessment for this project indicates that, 
including 12.7 km (7.9 mi) of new road, 15.6 ha (39 ac) of habitat 
would be disturbed, and 3.3 ha (8.2 ac) of occupied habitat would be 
lost (Childs 2007, p. 1). The project boundary will include 100 percent 
of S. brevispinus' range on Ute Tribal land (16 percent of the species' 
total range).
    In its Castle Peak/Eightmile Flat Oil and Gas Expansion Project 
Final Environmental Impact Statement (FEIS), BLM also identifies 
indirect effects to Sclerocactus brevispinus from the Castle Peak/
Eightmile Flat Project, including soil compaction, increased road 
access, increased off-road vehicle (ORV) use, increased surface 
disturbance, and habitat fragmentation (BLM 2005b, pp. 4.1-26, 4.2-22, 
4.3-14, 5-18). In this same FEIS, BLM established a range of influence 
for indirect effects from roads and well pads (such as fugitive dust, 
erosion, and impacts to pollinators) of 300 meters (m) (984 feet (ft)). 
Using this range of influence, BLM calculated that approximately 5,297 
ha (13,090 ac) (73 percent) of S. brevispinus' range within and 
immediately adjacent to the Castle Peak/Eightmile Flat Project area 
would be impacted by indirect effects (BLM 2005b, p. 5-28). Increases 
in well-field facilities within cactus habitat will result in some 
cactus populations becoming more physically isolated from each other 
(BLM 2005b, p. 5-27).
    BLM has identified 261 mi (420 km) of new and existing access 
roads, with adjacent parallel utility corridors for buried water 
pipelines, and above ground natural gas gathering pipelines, in 
connection with the Castle Peak/Eightmile Flat Project (BLM 2005b, ROD 
p. 4). Development of roads in support of oil and gas development can 
result in increased erosion, soil compaction, and sedimentation. Roads 
can cause cactus mortality in areas of high sediment movement and 
deposition (BLM 2005b, p. 4.1-28). Mortality of mature cactus plants, 
including S. brevispinus, has been observed when erosion of road 
sediments bury the plants (BLM 2005b, p. 4.1-28). Cacti seeds have been 
buried and lost due to erosion runoff from well-field facilities (BLM 
2005b, p. 4.1-28). In addition, dust particles increase leaf 
temperature and reduce photosynthesis in cacti (Farmer 1993, pp. 63-75; 
Sharifi et al. 1997, p. 842); the latter may be due to reduced leaf 
areas and greater leaf specific masses with corresponding decreased 
water use efficiency and reduced photosynthesis (Sharifi et al. 1997, 
p. 843). Construction and operation of roads and well pads increase 
dust occurrence substantially (BLM 2005b, pp. 2-4, 2-5, 4.1-8).
    Increased road access results in direct loss of individual plants 
due to increased illegal collection of the species (BLM 2005b, p. 5-18; 
USFWS 1990, p .9). Illegal collection is a continuing and an ongoing 
threat to Sclerocactus brevispinus (see discussion under Factor B 
below).
    Increases in ORV use result from access provided by increased road 
densities connected with well-field development. Developed roads 
provide access to vehicles that carry ORVs into areas that are 
otherwise not accessible, allowing for off-loading of ORVs and off-road 
access within a much wider range of unroaded habitat. ORV use results 
in crushing of cacti, and increased erosion, soil compaction, and 
sedimentation (BLM 2005a, pp. 4-246, 4-265 to 4-271; USFWS 1990, pp. 8, 
10).
    Increased surface disturbance from wells, pipelines, and roads 
facilitates the proliferation of noxious weeds (BLM 2005b, p. 4.1-9 to 
4.1-11, 5-18). Noxious weeds alter the ecological characteristics of 
hookless cactus habitat, making it less suitable (USFWS 1990, pp. 9, 
11; BLM 2005a, p. 3-112). Within the range of Sclerocactus brevispinus, 
a comparison of habitat on BLM land with habitat on adjacent Ute Tribal 
land shows that habitat on Tribal lands, which is less heavily grazed 
and lacks oil and gas developments, has fewer noxious weeds (O'Hearn 
2007; England 2007).
    The combined effects of roads (including increased erosion, soil 
compaction, and sedimentation; overall access; ORV use; illegal cacti 
collection; and spread of noxious weeds) result in direct mortality of 
cacti and habitat fragmentation (BLM 2005b, pp. 4.1-26, 4.2-22, 4.3-14, 
5-27), which decreases the ability of Sclerocactus brevispinus to 
reproduce, maintain genetic viability, and persist as a species.
    Rehabilitation of soils and vegetation following surface 
disturbance is expected to be difficult, because

[[Page 53215]]

approximately 73 percent of soils in the Castle Peak/Eightmile Flat 
Project area have moderate to high revegetation constraints (BLM 2005a, 
p. 4.2-11). BLM estimates that successful revegetation would be 
expected to occur in desert shrub and sagebrush communities, but only 
over the long term (up to 50 years) (BLM 2005b, pp. 4.3-7, 4.2-12). 
Drought conditions could further extend the recovery period, and 
noxious weeds would persist regardless of control efforts (BLM 2005b, 
p. 4.3-7). Noxious weeds are difficult to eradicate and tend to out-
compete native vegetation. Revegetation with native species is 
difficult due to the harsh environment of the lowest elevations of the 
Uinta Basin, which receive less than 15 centimeters (6 inches) of 
rainfall per year, and reach extreme hot and cold temperatures (BLM 
2005a, p. 3-112; BLM 2005b, pp. 3.5-1, 3.5-5, 4.1-11; USFWS 1990, p. 
11).
    BLM has developed and implemented conservation measures to minimize 
the loss of individual cactus from oil and gas activities (BLM 2005a, 
pp. 1-14, 2-2, 2-29, 2-30; BLM 2005b; ROD pp. 5, 18-20). These measures 
include preconstruction cactus surveys and application of spatial 
avoidance buffers. BLM maintains the 4,664 ha (11,660 ac) Pariette 
Wetlands Area of Critical Environmental Concern (ACEC), which 
emphasizes protection of Sclerocactus brevispinus (BLM 1994, pp. 3-20 
to 3-23). Approximately 31 percent of the ACEC (1,434 ha (3,584 ac)) is 
within the range of S. brevispinus. BLM defers approval of new wells 
and ancillary facilities located on BLM land within the Pariette 
Wetlands ACEC until a comprehensive population survey for S. 
brevispinus has been completed; however, conservation measures do not 
preclude development over the long term (BLM 2005b; ROD p. 5). Citing 
valid existing lease rights and current management prescriptions in the 
Diamond Mountain Resource Management Plan, BLM did not stipulate a 
blanket ``no surface occupancy'' requirement for oil and gas 
development within the Pariette Wetlands ACEC, or within the range of 
S. brevispinus (BLM 2005b; ROD p. 5). Following cactus surveys, the 
leasee will expand operations of the Castle Peak/Eightmile Flat Project 
into the ACEC.
    In summary, despite its current listed status as threatened under 
the Act, Sclerocactus brevispinus and its habitat continue to be 
impacted by additional oil and gas development, including wells and 
supporting road and pipeline facilities. Losses of habitat and 
individual plants have occurred despite conservation efforts 
implemented by BLM and the oil field operator. Energy development is 
occurring in S. brevispinus habitat at a rate much greater than existed 
at the time of the original listing of S. glaucus in 1979. Due to the 
extent of current and pending energy development across the cactus' 
entire range, and the resulting direct and indirect effects to the 
species, S. brevispinus is in danger of extinction throughout its range 
or likely to become in danger of extinction in the foreseeable future.

Habitat Fragmentation

    Regardless of conservation efforts related to oil and gas 
activities, adverse indirect effects are expected due to the loss and 
fragmentation of suitable habitat (BLM 2005a, pp. 4-240, 4-243, 4-244, 
4-246, 4-252; BLM 2005b, pp. 3-35, 4.1-26, 4.2-22, 4.3-20, 5-27). A 
recent review of habitat fragmentation experiments concluded that 
fragmentation effects cascade through a plant community by modifying 
inter-specific interactions, exacerbating edge effects, and potentially 
affecting the genetic composition of local populations (Debinski and 
Holt 2002, p. 353). Low population numbers, combined with habitat 
fragmentation, pose a threat to rare plant species' ability to adapt 
genetically to changing environmental conditions (Lienert 2004, pp. 62, 
63, 66; Matthies et al. 2004, pp. 481, 486).
    BLM has initiated monitoring of Sclerocactus brevispinus 
populations, including monitoring of impacts associated with oil and 
gas development. Results are preliminary, because the study was 
initiated in 2005. However, initial results show potential effects of 
oil and gas development (i.e., roads and well pads) on the survival and 
reproductive success of S. brevispinus (Ulloa 2006). For example, 
survival of S. brevispinus in plots within 100 m (328 ft) of roads 
associated with energy development was 17 percent, compared to 47 
percent survival in plots farther than 100 m (328 ft) from a road. On 
plots within 100 m (328 ft) of roads, 13.8 percent of cacti reproduced, 
compared to 22 percent of cacti farther than 100 m (328 ft) from roads. 
More information is needed to determine if these effects are the result 
of energy development or other environmental factors (Ulloa 2006).
    Direct Sclerocactus brevispinus mortality and habitat destruction 
have been caused by livestock trampling and ORV use (Utah Natural 
Heritage Program 2006, p. 3; BLM 2005a, pp. 4-231 to 4-235, 4-238; 
USFWS 1990, p. 11; England 2005; Sinclear 2005; Specht 2005). Recent 
observations show a significant decrease in S. brevispinus plant 
density on the more heavily grazed and roaded BLM lands in the Pariette 
Draw drainage than on adjacent Ute Tribal lands in the same drainage 
(O'Hearn 2007; England 2007). As previously mentioned, invasive weeds 
(Bromus tectorum (cheat grass) and Halogeton glomeratus) are much more 
prevalent on the more heavily grazed BLM lands at the boundary between 
the two land ownerships in the range of S. brevispinus (O'Hearn 2007; 
England 2007).

Conclusion for Factor A

    Threats from existing and planned oil and gas development occur 
within the entire known range of Sclerocactus brevispinus. These 
threats include direct mortality, erosion, soil compaction, 
sedimentation, increased road access, ORV use, surface disturbance, and 
habitat fragmentation. In addition, these combined effects could 
decrease the reproductive rate of S. brevispinus. Rehabilitation of 
habitat areas following oil and gas projects is especially difficult 
due to the habitat conditions and climate of the desert plant 
community, and is expected to meet with limited success. The same is 
true for conservation measures implemented to minimize the loss of 
individual cacti due to oil and gas activities. Due to the magnitude 
and extent of the combined effects of ongoing and planned oil and gas 
development, we find that S. brevispinus is in danger of extinction 
throughout all of its range or likely to become in danger of extinction 
in the foreseeable future due to destruction, modification, and 
curtailment of its habitat and range.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The original listing of Sclerocactus glaucus concluded that the 
cactus will continue to be prized among collectors and, therefore, is 
threatened by unregulated commercial trade (44 FR 58869, October 11, 
1979). This remains true for S. brevispinus. Illegal collecting 
continues, is often documented, and negatively affects the species by 
fragmenting plant populations and reducing population sizes which can 
result in limiting reproduction (USFWS 1990, p. 9). BLM recognized that 
additional energy development and ensuing road development in the 
Castle Peak/Eightmile Flat Project would result in increased potential 
for illegal collecting (BLM 2005b, p. 4.1-26).

[[Page 53216]]

Approximately 56 percent of the known plant locations (40 percent of 
the species' range) are within 100 m (328 ft) of project-related roads 
or well pads in the project area (USFWS 2006, p. 4), and close 
proximity to a road facilitates this cactus' discovery by illegal 
collectors (Ulloa 2006).
    In 2006, BLM documented that at least 60 Sclerocactus brevispinus 
plants were illegally collected, many from existing monitoring plots 
within the Castle Peak/Eight Mile Flat Project area (Ulloa 2006). 
Illegal collection areas were all within 100 m (382 ft) of roads 
associated with oil and gas development (Ulloa 2006). Additional plants 
were lost in 2007; however, the actual number of documented plant 
losses has not yet been determined.

Conclusion for Factor B

    In conclusion, we have determined that illegal collection continues 
to be a threat to Sclerocactus brevispinus throughout all of its range. 
The magnitude of this threat is increasing due to development, and 
combined with other threats to the species, contributes to its 
likelihood of becoming extirpated. Collection alone, however, may not 
cause the species to become in danger of extinction throughout all of 
its range or likely to become in danger of extinction in the 
foreseeable future.

C. Disease or Predation

    Parasitism by the cactus-borer beetle (Moneilema semipunctatum) is 
a significant source of mortality to all Sclerocactus species on the 
Colorado Plateau, especially in larger, mature, reproducing individuals 
(USFWS 1990, p. 11; Ulloa 2006; Sinclear 2005; Specht 2005). However, 
additional studies are needed in order to determine the long-term, 
population-level effects of the cactus borer beetle to S. brevispinus.

Conclusion for Factor C

    Parasitism is identified as a threat to Sclerocactus species, 
however the significance to S. brevispinus is not currently known. 
Therefore, we can draw no conclusions about the contribution of this 
threat to the population status of the species.

D. Inadequacy of Existing Regulatory Mechanisms

    BLM policy regarding federally listed species includes measures to 
implement management plans and programs that will conserve listed 
species and their habitats, and to comply with the Act (BLM 2001, pp. 
5-6). However, complying with the Act requires incorporating measures 
that minimize adverse impacts to federally listed species within 
reasonable and prudent guidelines. This threshold does not eliminate 
adverse impacts, and the policy is implemented under BLM's broader 
mandate for land use planning and policy that requires technologically 
and economically feasible implementation of existing lease rights.
    BLM's Diamond Mountain Resource Management Plan, approved in 1994, 
includes objectives and management prescriptions for the Pariette 
Wetlands ACEC (BLM 1994, pp. 3-20 to 3-23). The Pariette Wetlands ACEC 
provides protection for part of the Uinta Basin hookless cactus 
complex, which includes S. brevispinus and S. wetlandicus. The stated 
objective of the ACEC includes a goal to ``enhance and protect the 
wetlands community and associated habitat adjacent to Pariette and 
Castle Peak Washes * * * while meeting the management objectives of the 
final recovery plans for the special status species associated with the 
area'' (BLM 1994, p. 3-20). The Pariette Wetlands ACEC management 
prescriptions also state that BLM will authorize no action in suitable 
habitat for threatened and endangered species if it would jeopardize 
the continued existence of the species or result in severe modification 
of the habitat. However, much of the ACEC is leased for oil and gas 
exploration, development, and production. Of BLM's 4,664 ha (11,660 ac) 
in the Pariette Wetlands ACEC, about 8 ha (20 ac) are open with 
standard lease terms and conditions for leasable minerals; 3,152 ha 
(7,880 ac) are leased with stipulations; and 1,480 ha (3,700 ac) are 
leased with highly restricted measures, but do not include a ``no 
surface occupancy'' stipulation (BLM 1994, p. 3-21).
    Conservation needs of Sclerocactus brevispinus, as part of the 
Uinta Basin hookless cactus complex, are addressed through interagency 
consultation (section 7 requirements) between the Service and BLM. BLM 
maintains S. brevispinus as a special status species, because it is not 
specifically included on the Federal List of Endangered and Threatened 
Plants. Currently, S. brevispinus is federally listed as threatened as 
part of the greater habitat range of the Uinta Basin hookless cactus 
complex. Therefore, BLM is required to consult on projects that affect 
S. brevispinus. The Service is required to provide reasonable and 
prudent measures to be included in projects that could adversely affect 
a listed species. The Castle Peak/Eightmile Flat Oil and Gas Expansion 
Project FEIS included conservation measures to specifically protect S. 
brevispinus and its habitat (BLM 2005b, pp. 4.1-26 to 28, 4.2-22, 4.3-
14, 5-7, 5-18; ROD pp. 5, 18 to 20; Appendix B pp. 2, 27, 34, 39-41). 
For example, BLM and the leasee have agreed to a moratorium on new oil 
field developments within the Pariette Wetlands ACEC until a complete 
re-inventory of S. brevispinus is completed. The Pariette Wetlands ACEC 
contains approximately 1,249 ha (3,086 ac) (17 percent) of the known 
range of S. brevispinus. Approximately 75 percent of the inventory was 
completed during the species' flowering period in spring 2007. The 
remainder of the inventory is tentatively scheduled for completion in 
2008 (Gerbig 2007).
    Because of valid existing lease rights and management 
prescriptions, the Diamond Mountain Resource Management Plan Record of 
Decision did not stipulate a blanket ``no surface occupancy'' 
requirement for oil and gas development within the Pariette Wetlands 
ACEC (BLM 1994, p. 5). After cactus surveys are completed, the leasee 
will expand operations, subject to the Service's reasonable and prudent 
measures developed during the consultation process, of the Castle Peak/
Eightmile Flat Project into the Pariette Wetlands ACEC.
    BLM has recently established a population monitoring program for 
Sclerocactus brevispinus to track population changes, impacts from 
developments within the species' habitat, and direct threats such as 
grazing, parasitism, and unauthorized collection (Ulloa 2006), and 3 
years of monitoring data have been collected. Initial results include 
documentation of illegal collection, and greater population declines 
nearer disturbances. Correlations of declines to specific threat 
factors, such as dust or soil compaction, have not yet been determined. 
Despite this monitoring, the extent of oil and gas development 
projects, and resulting documented direct and indirect impacts, 
throughout the range of Sclerocactus brevispinus, indicate that 
existing regulatory mechanisms are insufficient to conserve the 
species.
    Despite implementation of conservation measures, Sclerocactus 
brevispinus is not adequately protected by the current designation (as 
part of the Uinta Basin hookless cactus complex) as threatened. 
Evaluation of impacts to S. brevispinus under section 7 of the Act is 
diluted by the fact that it is currently listed as part of the much 
larger distribution of the entire Uinta Basin hookless cactus complex. 
Therefore, actions included in determinations under section 7 of the 
Act are evaluated on whether they would jeopardize the

[[Page 53217]]

continued existence of the larger listed entity rather than whether 
they would jeopardize the continued existence of S. brevispinus. S. 
brevispinus, in accordance with the best taxonomic information 
available, warrants evaluation of effects of proposed actions at a 
smaller scale, specific to it as a separate species. For example, if a 
project impacts 3,795 plants (last population count for S. brevispinus 
(BLM 1985, p. 4)) out of a total 10,000 plants (i.e., Uinta Basin 
hookless cactus complex as currently listed), it impacts 30 percent of 
the total population. However, if the same project occurs entirely 
within S. brevispinus habitat, it could theoretically directly or 
indirectly impact 100 percent of the total known population. The FEIS 
for the Castle Peak/Eightmile Flat Oil and Gas Expansion Project 
includes discussion of these concerns in its cumulative effects 
evaluation based in part on the overall population and distribution of 
the Uinta Basin hookless cactus complex (BLM 2005b, pp. 4.2-22, 5-18). 
The Service provided reasonable and prudent measures related to 
conserving S. brevispinus; however, these measures result in protecting 
individual plants, and tend to not limit the extent of drilling within 
the range of the species.
    Oil and gas development has not yet been implemented on Ute Tribal 
land; however, the Tribe has leased occupied S. brevispinus habitat 
that will disturb 15.6 ha (39 ac) of habitat. These lands are not 
covered by regulations that apply to Federal lands; no protection under 
the Act is afforded plants on Tribal land.

Conclusion for Factor D

    Despite BLM policy regarding federally listed species, existing oil 
and gas leases continue to directly and indirectly impact Sclerocactus 
brevispinus and its habitats. In addition, Tribal lands are not subject 
to regulations that restrict energy development, and are only subject 
to section 7 consultation for projects that have a Federal nexus, such 
as Federal grant money or Bureau of Indian Affairs involvement. 
Specifically, neither BLM nor the Tribe have regulations or policies 
that include ``no surface occupancy'' stipulations; this deficiency 
allows for the ongoing and planned expansion of energy developments 
that endanger the continued existence of Sclerocactus brevispinus and 
its habitat. The extent and magnitude of oil and gas-related threats 
demonstrate that existing regulatory mechanisms are not adequate to 
protect remaining occupied and essential S. brevispinus habitat. 
Therefore, we find Sclerocactus brevispinus to be in danger of 
extinction throughout all of its range or likely to become in danger of 
extinction in the foreseeable future due to the inadequacy of existing 
regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting its Continued Existence

    Potential threats to Sclerocactus brevispinus from drought are well 
documented (USFWS 1990, p. 11; Specht 2005; Heil 2005). In addition to 
plant mortality due to lack of precipitation, drought causes streams to 
dry up, thereby removing additional moisture from the environment. In 
addition, noxious weeds are often able to out-compete native species 
under drought conditions. Many dead S. brevispinus individuals were 
observed in the Uinta Basin after the severe drought of 1976 to 1977 
(USFWS 1990, p. 11). The specific effects of climate change on S. 
brevispinus are unknown, but climate changes that lead to longer or 
more frequent drought in the future could potentially affect the 
species.
    Sclerocactus brevispinus exists in and adjacent to areas that 
receive pesticide treatments to remove undesirable species, such as 
noxious weeds and insect pests (USFWS 1990, pp. 10-11). Individual 
cactus are likely directly affected by use of herbicides, and 
indirectly by pesticides that affect pollinators (USFWS 1990, pp. 10-
11). However, specifics of the species' pollination biology are 
currently unquantified.
    The inherent vulnerability of Sclerocactus brevispinus due to its 
small population size is a concern (Ellestrand and Ellam 1993, p. 228). 
However, no information exists to indicate that the species' range and 
population numbers have been significantly larger than they are 
currently, except for recent documented losses due to oil and gas 
development and illegal collection. The species' small population size, 
in combination with habitat fragmentation and other threat factors 
discussed herein, may be affecting reproductive success.

Conclusion for Factor E

    Although several other natural or manmade factors--including 
drought, herbicide and pesticide application, and small population 
size--may affect the continued existence of Sclerocactus brevispinus, 
we cannot conclude that any one of these factors alone currently puts 
the species in danger of extinction throughout all or a significant 
portion of its range, or makes it likely to become in danger of 
extinction in the foreseeable future.

Finding

    We have carefully assessed the best scientific and commercial 
information available regarding threats to Sclerocactus brevispinus 
(Pariette cactus). We reviewed the petition, available published and 
unpublished scientific and commercial information, and information 
submitted to us during the public comment period following the 
publication of our 90-day petition finding. This 12-month finding 
reflects and incorporates information that we received during the 
public comment period or that we obtained through consultation, 
literature research, and field visits. On the basis of this review, we 
find that reclassifying S. brevispinus as endangered is warranted, due 
to threats associated with habitat loss and degradation due largely to 
energy development (Factor A), unauthorized collection (Factor B), and 
the inadequacy of existing regulatory mechanisms (Factor D). However, 
reclassifying S. brevispinus as endangered is precluded at this time by 
pending proposals for other species with higher listing priorities 
based on taxonomic uniqueness (i.e., the only species described for the 
genus), or other species that are not currently listed (see discussion 
under Preclusion and Expeditious Progress).
    We have determined that the magnitude of threats affecting 
Sclerocactus brevispinus to be ``high,'' because there is a single 
population and 72 percent of its habitat is affected by oil and gas 
development. The species cannot tolerate the cumulative effects from 
existing and proposed energy projects, especially due to the extent of 
roads within S. brevispinus habitat. We have also determined that the 
immediacy of threats is ``imminent,'' because the species'' habitat is 
already being impacted by oil and gas developments, and the remaining 
area is currently being proposed for development. Therefore, we assign 
a listing priority number of 2 to this species.

Emergency Listing

    We reviewed the available information to determine if existing and 
foreseeable threats to Sclerocactus brevispinus are of sufficient 
extent and magnitude to require emergency listing as threatened or 
endangered. We have determined that an emergency listing is not 
warranted for this species at this time, because it is currently 
treated as a threatened species as part of the S. glaucus (Uinta Basin 
hookless cactus) complex. It receives protection under the Act through 
sections 4, 7, and 9,

[[Page 53218]]

which provide for recovery actions, and provide some protection from 
habitat disturbance through interagency consultation and from illegal 
collection and trade.

Critical Habitat

    We considered the need to designate critical habitat for this 
species, and have found that designating critical habitat for 
commercially-exploited species, such as rare cacti, is not prudent. 
Designating critical habitat requires that we identify specific and 
narrowly delineated geographical areas containing populations, which 
would make the species more vulnerable to increased unauthorized and 
illegal collection. There is a long and clear record that Sclerocactus 
brevispinus is not only a highly desirable species for collectors, but 
that significant numbers have been collected illegally. Designating 
critical habitat for this species would exacerbate this ongoing threat. 
Therefore, in accordance with the Act and its implementing regulations, 
we have determined that the designation of critical habitat for S. 
brevispinus is not prudent for the above mentioned reasons and the 
potential increased degree of threat to this species that may result 
from such designation.

Significant Portion of the Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is threatened or endangered in a significant 
portion of its range. Because this 12-month finding to list the species 
as threatened or endangered throughout its entire range is warranted 
but precluded, we do not need to perform a ``significant portion of the 
range'' analysis for the species at this time. Due to the restricted 
nature of Sclerocactus brevispinus' range, we assessed its entire known 
range. The species is restricted to one population of an estimated 
8,000 individuals, distributed across a relatively small area that is 
16 km (10 mi) long by 8 km (5 mi) wide. Threats to the species' 
survival are similar across its range, with energy development 
occurring across virtually all of the species' range. Because of its 
relatively restricted population distribution, the threats described 
above, and the uniformity of threats across its range, we have 
determined that S. brevispinus should be listed as threatened or 
endangered throughout its entire range.

Preclusion and Expeditious Progress

    Preclusion is a function of the listing priority of a species in 
relation to the resources available and competing demands for them. In 
any given Fiscal Year (FY), multiple factors dictate whether it will be 
possible to undertake work on a proposed listing regulation or whether 
promulgation of such a proposal is warranted but precluded by higher 
priority listing actions.
    The resources available for listing actions are determined through 
the annual congressional appropriations process. The appropriation for 
the Listing Program is available to support work involving the 
following listing actions: Proposed and final listing rules; 90-day and 
12-month findings on petitions to add species to the Lists or to change 
the status of a species from threatened to endangered; resubmitted 
petition findings; proposed and final rules designating critical 
habitat; and litigation-related, administrative, and program management 
functions (including preparing and allocating budgets, responding to 
congressional and public inquiries, and conducting public outreach 
regarding listing and critical habitat). The work involved in preparing 
various listing documents can be extensive and may include, but is not 
limited to, gathering and assessing the best scientific and commercial 
data available and conducting analyses used as the basis for our 
decisions; writing and publishing documents; and obtaining, reviewing, 
and evaluating public and peer review comments on proposed rules and 
incorporating relevant information into final rules. The number of 
listing actions that we can undertake in a given year also is 
influenced by their complexity, i.e., more complex actions generally 
are more costly. For example, during the past several years, the cost 
(excluding publication costs) for preparing a 12-month finding, without 
a proposed rule, has ranged from approximately $11,000 for a species 
with a restricted range and involving a relatively uncomplicated 
analysis, to $305,000 for a species that is wide-ranging and involved a 
complex analysis.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (see 31 U.S.C. 
1341(a)(1)(A)). In addition, in FY 1998 and for each FY since then, 
Congress has placed a statutory cap on funds that may be expended for 
the Listing Program, equal to the amount expressly appropriated for 
that purpose in that FY. This cap was designed to prevent funds 
appropriated for other functions under the Act, or for other Service 
programs, from being used for Listing Program actions (see House Report 
105-163, 105th Congress, 1st Session, July 1, 1997).
    Recognizing that designation of critical habitat for species 
already listed would consume most of the overall Listing Program 
appropriation, Congress also put a critical habitat subcap in place in 
FY 2002, and has retained it each subsequent year to ensure that some 
funds are available for other work in the Listing Program. ``The 
critical habitat designation subcap will ensure that some funding is 
available to address other listing activities'' (House Report No. 107-
103, 107th Congress, 1st Session, June 19, 2001). In FY 2002, and each 
year since then, the Service has had to use virtually the entire 
critical habitat subcap to address court-mandated designations of 
critical habitat. Consequently, none of the critical habitat subcap 
funds have been available for other listing activities.
    Through the listing cap, the critical habitat subcap, and the 
amount of funds needed to address court-mandated critical habitat 
designations, Congress and the courts have in effect determined the 
amount of money available for other listing activities. Therefore, the 
funds in the listing cap, other than those needed to address court-
mandated critical habitat for already listed species, set the limits on 
our determinations of preclusion and expeditious progress.
    Congress recognized that the availability of resources was the key 
element in deciding whether, when making a 12-month petition finding, 
we would prepare and issue a listing proposal or make a ``warranted but 
precluded'' finding for a given species. The Conference Report 
accompanying Public Law 97-304, which established the current statutory 
deadlines and the warranted but precluded finding, states (in a 
discussion on 90-day petition findings that by its own terms also 
covers 12-month findings) that the deadlines were ``not intended to 
allow the Secretary to delay commencing the rulemaking process for any 
reason other than that the existence of pending or imminent proposals 
to list species subject to a greater degree of threat would make 
allocation of resources to such a petition [i.e., for a lower-ranking 
species] unwise.'' In FY 2007, ``expeditious progress'' is the amount 
that could be achieved with $5,193,000, which is the Listing Program 
appropriation that is not within the critical habitat subcap.
    Our process is to make determinations of preclusion on a nationwide 
basis to ensure that the species most in need of listing will be 
addressed first, and to allocate our listing budget on a nationwide 
basis. However, through court orders and court-approved settlements, 
Federal district courts have

[[Page 53219]]

mandated that we must complete certain listing activities for specified 
species, and have established the schedules for completion of the 
activities. The species involved in these court-mandated listing 
activities are not always the ones that we have identified as being 
most in need of listing. A large majority of the $5,193,000 
appropriation available in FY 2007 for new listings of species is being 
used for court-mandated listing activities; by ordering or sanctioning 
these actions, the courts determined that they were the highest 
priority actions to be undertaken with available funding. Copies of the 
court orders and settlement agreements referred to below are available 
from the Service and are part of our administrative record.
    The FY 2007 appropriation of $5,193,000 for listing activities, not 
related to critical habitat designations for species that are already 
listed, is fully allocated to fund work in the following categories: 
compliance with court orders and court-approved settlement agreements 
requiring that petition findings or listing determinations be completed 
by a specific date; section 4 (of the Act) listing actions with 
absolute statutory deadlines; essential litigation-related and 
administrative- and program-management functions; and a few high-
priority listing actions. The allocations for each specific listing 
action are included in the Service's FY 2007 Allocation Table. Although 
more funds are available in FY 2007 than in previous years for work on 
listing actions that were not the subject of court orders or court-
approved settlement agreements, limited FY 2007 funds are available for 
work on proposed listing determinations for the following high-priority 
candidate species: Two Oahu plants (Doryopteris takeuchii, Melicope 
hiiakae), seven Kauai plants (Chamaesyce eleanoriae, Charpentiera 
densiflora, Melicope degeneri, Myrsine mezii, Pritchardia hardyi, 
Psychotria grandiflora, Schiedea attenuata), and four Hawaiian 
damselflies (Megalagrion nesiotes, Megalagrion leptodemas, Megalagrion 
oceanicum, Megalagrion pacificum). These species have all been assigned 
a listing priority number (LPN) of 2.
    Our decision that a proposed rule to reclassify Sclerocactus 
brevispinus as endangered is warranted but precluded includes 
consideration of its current listed status as threatened. One of the 
primary reasons that reclassifying Sclerocactus brevispinus as 
endangered is a lower priority is that it is currently listed as 
threatened under the Act, and therefore already receives certain 
protections. The Service promulgated regulations extending take 
prohibitions for endangered species under section 9 to threatened 
species (50 CFR 17.31). Protections included under section 7(a)(2) of 
the Act specify that Federal agencies must ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of any endangered or threatened species.
    We consider the priority for changing the status of Sclerocactus 
brevispinus from threatened to endangered to be lower than for 
candidate species in need of protection under the Act. In accordance 
with guidance we published on September 21, 1983, we assign a LPN to 
each candidate species (48 FR 43098). Such a priority ranking guidance 
system is required under section 4(h)(3) of the Act (16 U.S.C. 
1533(h)(3)). Using this guidance, we assign each candidate a LPN of 1 
to 12, depending on the magnitude of threats, imminence of threats, and 
taxonomic status; the lower the listing priority number, the higher the 
listing priority, i.e., a species with an LPN of 1 would have the 
highest listing priority. We currently have more than 120 species with 
an LPN of 2 (see Table 1 of the September 12, 2006, Notice of Review; 
71 FR 53756). For the next 2 years, we have funded proposed listings 
for several species with an LPN of 2. We consider Sclerocactus 
brevispinus to be precluded by these high priority candidate species.
    A determination that listing, or changing the status from 
threatened to endangered, is warranted but precluded also must 
demonstrate that expeditious progress is being made to add qualified 
species to, and remove qualified species from, the Lists. Our 
expeditious progress made in the FY 2007 Listing Program, up to the 
date of this 12-month finding, included preparing and publishing the 
following:

                               FY 2007 Completed Listing Actions as of 06/06/2007
----------------------------------------------------------------------------------------------------------------
      Publication date              Title/species               Actions              Federal Register pages
----------------------------------------------------------------------------------------------------------------
10/11/2006.................  Withdrawal of the Proposed  Final withdrawal,      71 FR 59700-59711.
                              Rule to List the Cow Head   Threats eliminated.
                              Tui Chub (Gila biocolor
                              vaccaceps) as Endangered.
10/11/2006.................  Revised 12-Month Finding    Notice of 12-month     71 FR 59711-59714.
                              for the Beaver Cave         petition finding,
                              Beetle (Pseudanophthalmus   Not warranted.
                              major).
11/14/2006.................  12-Month Finding on a       Notice of 12-month     71 FR 66292-66298.
                              Petition to List the        petition finding,
                              Island Marble Butterfly     Not warranted.
                              (Euchloe ausonides
                              insulanus) as Threatened
                              or Endangered.
11/14/2006.................  90-Day Finding for a        Notice of 90-day       71 FR 66298-66301.
                              Petition to List the        petition finding,
                              Kennebec River Population   Substantial.
                              of Anadromous Atlantic
                              Salmon as Part of the
                              Endangered Gulf of Maine
                              Distinct Population
                              Segment.
11/21/2006.................  90-Day Finding on a         Notice of 90-day       71 FR 67318-67325.
                              Petition To List the        petition finding,
                              Columbian Sharp-Tailed      Not substantial.
                              Grouse as Threatened or
                              Endangered.
12/05/2006.................  90-Day Finding on a         Notice of 90-day       71 FR 70483-70492.
                              Petition To List the        petition finding,
                              Tricolored Blackbird as     Not substantial.
                              Threatened or Endangered.
12/06/2006.................  12-Month Finding on a       Notice of 12-month     71 FR 70717-70733.
                              Petition To List the        petition finding,
                              Cerulean Warbler            Not warranted.
                              (Dendroica cerulea) as
                              Threatened with Critical
                              Habitat.
12/6/2006..................  90-Day Finding on a         Notice of 90-day       71 FR 70715-70717.
                              Petition To List the        petition finding,
                              Upper Tidal Potomac River   Not substantial.
                              Population of the
                              Northern Water Snake
                              (Nerodia sipedon) as an
                              Endangered Distinct
                              Population Segment.
12/14/2006.................  90-Day Finding on a         Notice of 5-year       71 FR 75215-75220.
                              Petition to Remove the      Review Initiation.
                              Uinta Basin Hookless       Notice of 90-day
                              Cactus From the List of     petition finding,
                              Endangered and Threatened   Not substantial.
                              Plants; 90-Day Finding on  Notice of 90-day
                              a Petition To List the      petition finding,
                              Pariette Cactus as          Substantial.
                              Threatened or Endangered.

[[Page 53220]]

 
2/19/2006..................  Withdrawal of Proposed      Notice