[Federal Register Volume 66, Number 66 (Thursday, April 5, 2001)]
[Proposed Rules]
[Pages 18062-18068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8344]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AH32
Endangered and Threatened Wildlife and Plants; Determination of
Whether Designation of Critical Habitat Is Prudent for the Rock Gnome
Lichen
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of proposed finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have
reconsidered our findings concerning whether designating critical
habitat for the rock gnome lichen (Gymnoderma lineare) would be
prudent. The rock gnome lichen was listed as an endangered species
under the Endangered Species Act of 1973, as amended (Act), on January
18, 1995. At the time the plant was listed, we determined that
designation of critical habitat was not prudent because designation
would increase the degree of threat to the species and/or would not
benefit the species.
We repropose that the designation of critical habitat is not
prudent for the rock gnome lichen, because it would likely increase the
threat from collection, vandalism, or habitat degradation and
destruction, both direct and inadvertent.
We solicit data and comments from the public on all aspects of this
proposed finding. We may revise this proposed finding to incorporate or
address comments and new information received during the comment
period.
DATES: We will consider comments received by June 4, 2001.
ADDRESSES: If you wish to comment, you may submit your comments by any
one of several methods:
1. You may submit written comments and information to the State
Supervisor, Asheville Field Office, U.S. Fish and Wildlife Service, 160
Zillicoa Street, Asheville, North Carolina 28801.
2. You may hand-deliver written comments to our Asheville Field
Office, at the above address or fax your comments to 828/258-5330.
3. You may send comments by electronic mail (e-mail) to
[email protected]. For directions on how to submit electronic filing
of comments, see the ``Public Comments Solicited'' section.
Comments and materials received, as well as supporting
documentation used in preparation of this proposed finding, will be
available for public inspection, by appointment, during normal business
hours at the above address.
FOR FURTHER INFORMATION CONTACT: Nora A. Murdock, Fish and Wildlife
Biologist, (828)258-3939.
SUPPLEMENTARY INFORMATION:
Background
Taxonomy and Description
Gymnoderma lineare, first described by Evans (1947) as Cladonia
linearis from material collected in Tennessee, is a squamulose lichen
in the reindeer moss family. This species is the only member of its
genus occurring in North America (Yoshimura and Sharp 1968). Gymnoderma
was considered a monotypic genus for over a century, until its revision
by Yoshimura and Sharp (1968). These authors reclassified Evans' (1947)
Cladonia linearis as
[[Page 18063]]
Gymnoderma lineare on the basis of its short and solid podetia (hollow
upright structures) that lack symbiotic algae (algae that live
cooperatively with a fungus). Gymnoderma lineare occurs in rather dense
colonies of narrow straps (squamules). The only similar lichens are the
squamulose species of the genus Cladonia. Gymnoderma lineare has
terminal portions of the strap-like individual lobes that are blue-grey
on the upper surface and generally shiny-white on the lower surface;
near the base they grade to black (unlike squamulose Cladonia, which
are never blackened toward the base) (Weakley 1988, Hale 1979). Hale's
(1979) description of the species reads as follows: ``Squamules dark
greenish mineral grey; lower surface white to brownish toward the tips,
weakly corticated; podetia lacking but small clustered apothecia common
on low tips.'' Weakley (1988) further describes the species as having
squamules about 1 millimeter (mm) (0.04 inches (in)) across near the
tip, tapering to the blackened base, sparingly branched, and generally
about 1 to 2 centimeters (cm) (0.39 to 0.79 in) long (though they can
be longer or shorter, depending upon environmental factors). The
squamules are nearly parallel to the rock surface, but the tips curl
away from the rock, approaching or reaching a perpendicular orientation
to the rock surface. The fruiting bodies (apothecia) are borne at the
tips of the squamules and are black (contrasting to the brown or red
apothecia of Cladonia spp.) (Weakley 1988). The apothecia are borne
singly or in clusters, usually at the tips of the squamules but
occasionally along the sides; these have been found from July through
September (Evans 1947, North Carolina Natural Heritage Program records
1991). The apothecia are either sessile or borne on short podetia 1 to
2 mm (0.04 to 0.08 in) in height, and the largest of these have a
diameter of about 1 mm (0.04 in), with most being much smaller. The
apothecia are cylindrical in shape and radial in symmetry (Evans 1947).
The primary means of propagation of this lichen appears to be asexual,
with colonies spreading clonally.
Distribution, Habitat, and Life History
Gymnoderma lineare (Evans) Yoshimura and Sharp is endemic (native
to a particular region) to the Southern Appalachian Mountains of North
Carolina, Tennessee, South Carolina, and Georgia, and occurs only in
areas of high humidity, either on high-elevation cliffs, where it is
frequently bathed in fog, or in deep river gorges at lower elevations.
It is primarily limited to vertical rock faces, where seepage water
from forest soils above flows at (and only at) very wet times, and
large stream side boulders, where it receives a moderate amount of
light but not high-intensity solar radiation. It is almost always found
growing with the moss Andreaea in these vertical intermittent seeps.
This association makes it rather easy to search for, due to the
distinctive reddish-brown color of Andreaea that can be observed from a
considerable distance (Weakley 1988). Most populations occur above
1,524 meters (5,000 feet) elevation. In Tennessee, it is apparently
limited to the Great Smoky Mountains and one other mountain on the
North Carolina-Tennessee state line. Very little specific information
is known on the life history and population biology of the rock gnome
lichen. Other common species found growing with or near this species
include Huperzia selago, Stereocaulon sp., Scirpus cespitosus, Carex
misera, Rhododendron spp., Saxifraga michauxii, Krigia montana,
Heuchera villosa, Geum radiatum, and sometimes Juncus trifidus. The
high-elevation coniferous forests adjacent to the rock outcrops and
cliffs most often occupied by the species are dominated by red spruce
(Picea rubens) and Fraser fir (Abies fraseri).
Forty populations of Gymnoderma lineare have been reported
historically; thirty-five remain in existence. The remaining
populations are in Mitchell (two), Jackson (five), Yancey (four), Swain
(one), Transylvania (four), Buncombe (four), Avery (two), Ashe (two),
Haywood (one) and Rutherford (one) Counties, North Carolina; Greenville
County (one), South Carolina; Rabun County (one), Georgia; and Sevier
(seven) and Carter (part of this population is on the State line with
Mitchell County, North Carolina) counties, Tennessee.
Threats
Five populations of rock gnome lichen are known to have been
completely extirpated. The reasons for the disappearance of the species
at most of these sites are undocumented; however, one population is
believed to have been destroyed by highway construction. The
explanation for the disappearance of the other four is a mystery. Among
the other populations that still survive, one has been vandalized, and
portions of two others are known to have been illegally collected.
Although these acts of vandalism and collection did not completely
eliminate the species at those latter sites, they did seriously reduce
the population sizes, and may well have adversely affected the species'
chances of long-term survival at those places. Most of the formerly
occupied sites are subjected to heavy recreational use by hikers,
climbers, and sightseers, which can be highly destructive to the
fragile plant communities that occupy vertical rock faces.
The majority of the high-elevation spruce-fir forests of the
Southeast have suffered extensive changes and declines in extent and/or
vigor during the past century as a result of several factors, including
site deterioration due to the logging and burning practices of the
early 1900's, possibly atmospheric pollution, exposure shock, and other
factors not yet fully understood (Dull et al., 1988; White 1984).
However, the greatest threat to the high-elevation Fraser fir forests,
by far, is infestation by the balsam wooly adelgid (Adelges picea
(Ratzeburg) (Homoptera, Adelgidae)). The balsam wooly adelgid is a
nonnative insect pest believed to have been introduced into the
Northeastern United States from Europe around 1900 (Eagar 1984). The
adelgid was first detected in North Carolina on Mount Mitchell in 1957
(Hoffard et al., 1995), though it may have been established at that
site as early as 1940. From Mount Mitchell, the adelgid spread to
Fraser fir stands throughout the Southern Appalachians (Eager 1984).
All ages of fir trees are attacked by the adelgid, but effects are
generally not lethal until the trees reach maturity, at around 30 years
of age (Hoffard et al. 1995). Most mature Fraser firs are easily killed
by the adelgid, with death occurring within 2 to 7 years of the initial
infestation (Eagar 1984). The death of the fir trees and the resultant
opening of the forest canopy causes the remaining trees (including the
red spruce) to be more susceptible to wind and other storm damage. The
adelgid is transported and spread primarily by the wind but may also be
spread by contaminated nursery stock; on the fur or feathers of animals
and birds; or by humans on contaminated clothes, equipment, or vehicles
(Eagar 1984). All efforts to control the spread of the adelgid have
failed thus far. The death of the forests above the rock faces occupied
by the rock gnome lichen has resulted in locally drastic changes in
microclimate, including desiccation and increased temperatures which
can prove lethal to this species.
The continued existence of this species is threatened by trampling
and associated soil erosion and compaction, other forms of habitat
disturbance due to heavy recreational use of some inhabited areas by
hikers, climbers, and
[[Page 18064]]
sightseers, as well as by development for commercial recreational
facilities and residential purposes. It is also threatened by
collectors and vandals, and is potentially threatened by logging, and
possibly by air pollution. In addition, the extremely limited and
restricted range of each of the rock gnome lichen populations makes
them extremely vulnerable to extirpation from a single event.
Currently, no one has succeeded in propagating the rock gnome lichen.
Only 7 of the remaining 35 populations cover an area larger than 2
square meters (m\2\) (2.4 square yards (yd\2\). Most are 1 m\2\ (9
square feet (ft\2\) or less in size. It is unknown what constitutes a
genetic individual in this species, and it is possible that each of
these small colonies or patches consists of only a single clone
(Weakley 1988). Over the past decade several of the currently extant
populations have undergone significant declines (Paula DePriest,
Smithsonian Institution, personal communication, 1992; Karin Heiman,
Environmental Consultant, personal communication, 1992), some within as
little as 1 year (Alan Smith, Environmental Consultant, personal
communication, 1992). Although most of the remaining populations are in
public ownership, they continue to be impacted by collectors,
recreational use, and unknown environmental factors.
In a recent study funded cooperatively by the Service and the U.S.
Forest Service, experts in lichenology and air pollution attempted to
determine if air pollution constituted a significant threat to the rock
gnome lichen, as it does to many lichen species. The study could not
conclusively link documented declines with atmospheric pollutants.
Heavy metal concentrations did not exceed toxic levels. However, the
lowest sulfur concentrations were measured in the colonies having the
best health status, and the highest in colonies with the worst health
conditions. The authors of the study warned that future increases in
sulfur compound deposition might cause damage to rock gnome lichen,
especially where it occurs on substrates with low buffering capacity.
The results of the study were further complicated by the discovery of
parasitic algae and lichens that were found to be attacking the rock
gnome lichen in several populations. The relationship between these
parasitic organisms and environmental factors such as sedimentation,
and accumulation of sulfur and phosphorus requires further study
(Martin et al 1996).
Previous Federal Actions
Federal Government actions on Gymnoderma lineare began with the
1990 publication in the Federal Register of a revised notice of review
of plant taxa for listing as endangered or threatened species (55 FR
6184); Gymnoderma lineare was included in that notice as a category 2
species. Prior to 1996, a category 2 species was one that we were
considering for possible addition to the Federal List of Endangered and
Threatened Wildlife and Plants, but for which conclusive data on
biological vulnerability and threats were not available to support a
proposed rule. We discontinued designation of category 2 species in the
February 28, 1996, Notice of Review (61 FR 7956).
Subsequent to the 1990 notice, the Service received additional
information from the North Carolina Natural Heritage Program (Alan
Weakley, North Carolina Natural Heritage Program, personal
communication, 1991) and the Smithsonian Institution (Paula DePriest,
personal communication, 1992); this information and additional field
data gathered by us, the North Carolina Natural Heritage Program, and
the National Park Service (Keith Langdon and Janet Rock, Great Smoky
Mountains National Park, personal communication, 1992; Bambi Teague,
Blue Ridge Parkway, personal communication, 1991) indicated that the
addition of Gymnoderma lineare to the Federal Candidate List of
endangered or threatened plants was warranted. A candidate species is a
species for which we have on file sufficient information to propose it
for protection under the Act.
The Service approved this species for elevation to category 1
status on August 30, 1993, and proposed it for listing as endangered on
December 28, 1993 (58 FR 68623). The proposal provided information on
the species' range, biology, status, and threats to its continued
existence. The proposal included a proposed determination that
designation of critical habitat was not prudent for the species because
such designation would not be beneficial and could further threaten the
rock gnome lichen. Through associated notifications, we invited
comments on the proposal and factual reports or information that might
contribute to the development of a final rule. We contacted and
requested comments from appropriate Federal and State agencies, county
governments, scientific organizations, individuals knowledgeable about
the species or its habitat, and other interested parties. We published
legal notices, which invited public comment, in newspapers covering the
range of the rock gnome lichen. We received 15 written comments. Eleven
of these expressed strong support for the proposal, as presented,
without critical habitat. One commenter presented additional
information without stating a position. One additional respondent took
no position on the proposal but expressed a negative view toward the
potential designation of critical habitat. Two respondents opposed the
proposal: one stated no reason for opposition; the other expressed the
opinion that logging was not a potential threat to the lichen and that
extinction is a natural process. One of those on record as supporting
the proposal with no critical habitat designation was the Southern
Appalachian Biodiversity Project (plaintiff in the current settlement
discussed below against the Service for non-designation of critical
habitat for this species).
Following our review of all the comments and information received
throughout the listing process, by final rule (60 FR 3557) dated
January 18, 1995, we listed the rock gnome lichen as endangered. We
addressed all the comments received throughout the listing process and/
or incorporated changes into the final rule as appropriate. That
decision included a determination that the designation of critical
habitat was not prudent for the rock gnome lichen because, after a
review of all the available information, we determined that such
designation would not be beneficial to the species and that designation
of critical habitat could further threaten the lichen (see ``Prudency
Determination'' section).
On June 30, 1999, the Southern Appalachian Biodiversity Project and
the Foundation for Global Sustainability filed a lawsuit in United
States District Court for the District of Columbia against the Service,
the Director of the Service, and the Secretary of the Department of the
Interior, challenging the not prudent critical habitat determinations
for four species in North Carolina--the spruce-fir moss spider
(Microhexura montivaga), Appalachian elktoe (Alasmidonta raveneliana),
Carolina heelsplitter (Lasmigona decorata), and rock gnome lichen. On
February 29, 2000, the U.S. Department of Justice entered into a
settlement agreement with the plaintiffs in which we agreed to
reexamine our prudency determination for the rock gnome lichen and
submit a new proposed prudency determination to the Federal Register,
by April 1, 2001. If prudent, we also agreed to submit by that same
date a new proposed critical habitat
[[Page 18065]]
determination. If, upon consideration of all available information and
comments, we determine that designating critical habitat is not prudent
for the rock gnome lichen, we have agreed to submit a final notice of
that finding to the Federal Register by October 1, 2001. If we
determine that designation of critical habitat is prudent for the rock
gnome lichen, we have agreed to send a final rule of this finding to
the Federal Register by January 1, 2002.
This proposed finding is the product of our reexamination of our
prudency determination for the rock gnome lichen and reflects our
interpretation of the recent judicial opinions on critical habitat
designation and the standards placed on us for making a ``not prudent''
determination. If additional information becomes available on the
species' biology, distribution, and threats, we may reevaluate this
proposed finding.
Prudency Determination
Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
we designate critical habitat at the time a species is determined to be
endangered or threatened. Regulations under 50 CFR 424.12(a)(1) state
that designation of critical habitat is not prudent when one or both of
the following situations exist--(1) The species is threatened by taking
or other activity and the identification of critical habitat can be
expected to increase the degree of threat to the species or (2) such
designation of critical habitat would not be beneficial to the species.
In our January 18, 1995, final rule, we determined that both situations
applied to the rock gnome lichen.
The regulations that provide protection for critical habitat come
into play through section 7 of the Act. Requirements under section 7 of
the Act apply only to Federal actions and activities. They require
Federal agencies to ensure, in consultation with us, that activities
they fund, authorize, or carry out are not likely to jeopardize the
continued existence of listed species or result in the destruction or
adverse modification of designated critical habitat. Regulations for
the implementation of section 7 of the Act (50 CFR 402.2) provide for
both a ``jeopardy'' standard and an ``adverse modification or
destruction of critical habitat'' standard.
Because of the extremely restricted range and limited amount of
suitable habitat available to the rock gnome lichen, we determined in
the January 18, 1995, final rule that any action that would likely
result in the destruction or adverse modification of the species'
habitat would also likely jeopardize the species' continued existence.
Since Federal actions resulting in jeopardy are also prohibited by
section 7, we determined that designation of critical habitat would not
provide any additional protection benefitting the species beyond that
provided by the jeopardy standard.
Further, we have documented evidence that collecting and other
human disturbance have already detrimentally affected this species.
Concern that the species would be over-collected by lichenologists led
Mason Hale to state emphatically in his 1979 book, How To Know the
Lichens, which is the standard reference for lichen identification for
amateurs and professionals alike; ``This [rock gnome lichen] is one of
the most unusual endemic lichens in North America and should not be
collected by individuals.'' Nevertheless, populations of rock gnome
lichen have been decimated by scientific collectors. Paula DePriest
(Smithsonian Institution, personal communication, 1992) observed that
the type locality for rock gnome lichen was virtually wiped out by
lichenologists who collected them during a field trip, in spite of the
fact that this collection within a national park was not permitted.
After the species was listed, another illegal collection occurred at a
different location within a national park. Another population outside
the park was vandalized for unknown reasons (the lichens were scraped
off the rock to form graffiti). Illegal collection and/or vandalism is
difficult to document, but is suspected as a possible cause for the
precipitous declines in some of the other populations that are close to
trails or roads. Some of these populations have been reduced in
coverage by as much as 90 percent in a single year. A state park in
South Carolina, upon discovering a small population of this species
close to an existing trail, relocated the trail away from the rock face
to deter potential collectors.
The National Park Service, which developed the recovery plan for
this species in cooperation with the Service, requested that we remove
any mention of particular mountains from the recovery plan because they
feared that this would give enough information to knowledgeable
collectors to allow them to find the lichen and collect it. Park
Service personnel believe that divulging locations or producing maps of
rock gnome lichen habitat would greatly compromise their ability to
protect the species within the national parks where it occurs (K.
Langdon, J. Rock, National Park Service, personal communication, 1999).
Three internationally recognized lichen experts are on record as
being opposed to making public the specific locations of rare lichens
because of the danger from collectors (P. DePriest, Smithsonian
Institution, personal communication, 2000; J. Dey, Illinois Wesleyan
University, personal communication, 2000; J. Martin, Eurouniversity,
Estonia, personal communication, 2000). Dr. Paula DePriest, Associate
Curator in Charge of Lichen Collections at the National Museum of
Natural History, Smithsonian Institution, emphasized that the
Smithsonian deliberately deletes location data for rare lichens from
its publically disseminated database. She further related several
incidents of damaging collections of rare lichens in areas within the
range of rock gnome lichen. In at least one instance, this collecting
was done on a field trip led by professional lichenologists who had
forewarned the participants that no collecting of rare species would be
tolerated; the rarest species were collected anyway when the field trip
leaders were not looking. Dr. Juri Martin, Rector of Estonia's
Eurouniversity, further emphasized the danger of making public the
locations of rare lichen species. In Estonia, as well as in Italy,
Switzerland, and other European countries, databases with specific
location data for rare lichen species are kept in guarded locations
where only a few professionals have access to them. They are never made
public because of the danger of collecting. Dr. Martin emphasized that
in these countries, even though there are regulations prohibiting the
collection of these rare species, those laws have been found to be
ineffective; the only real protection for those lichens is the
safeguarding of specific location data and maps. Nothing more specific
than county or forest distribution is ever made public. Dr. Martin
recommended that rock gnome lichen be included on the World Red List of
Endangered Lichens. Dr. Jon Dey, eminent lichenologist at Illinois
Wesleyan University, further emphasized that he believed it would be
inadvisable to publish specific location data for endangered lichen
species, since the general public and hobbyists could, as a result,
inadvertently or even purposely damage them. He further stated his
belief that, although it might be necessary to allow legitimate
professionals access to a single closely monitored population for the
purposes of observation and research, that even
[[Page 18066]]
scientists should not be able to collect endangered lichens from the
wild.
The Great Smoky Mountains National Park has recently undertaken an
All Taxa Biodiversity Inventory; in the process of this comprehensive
survey, experts on different taxa from all over the world are being
brought into this half-million acre park to inventory and document
occurrences of all species within its boundaries. In the process of
this ambitious inventory, several watersheds within the Park were
identified by experts as having internationally significant
concentrations of rare bryophytes and lichens, and the guest scientists
petitioned the Park Service to formally designate these areas as
lichen/ bryophyte sanctuaries (K. Langdon, pers. com. 2000). The Park
Service declined because of their fear of attracting collectors to the
areas; not only collectors of rare species, but indiscriminate moss
collectors who routinely ravage the Park and the adjacent National
Forests for ``log moss'' to sell in mass quantities (truck loads have
been confiscated from poachers in the Great Smokies) in the commercial
florist trade.
Rock gnome lichen is extremely fragile and is easily scraped off
its rocky substrate; denuded habitat is not re-colonized quickly, if at
all. Because this species occupies such limited areas (with most of the
populations being less than a square meter in size), even a single
person climbing on a rock face could cause significant damage to the
species and its habitat that could lead to the extirpation of an entire
population. Increased visits to population locations stimulated by
critical habitat designation, even without deliberate collecting, could
adversely affect the species due to the associated increase in
trampling of its fragile habitat. We believe that the designation of
critical habitat and the required public dissemination of maps and
descriptions of occupied sites could result in the demise or severe
diminishment of this species. The moss collectors or poachers (referred
to above) that the Park Service is trying to combat have been caught
leaving the Great Smoky Mountains National Park (Park) with dump truck
loads full of moss and anything that looks like moss including lichens,
liverworts, and other bryophytes. Many species of moss and lichens are
superficially similar in appearance and are similarly decorative in
floral arrangements. Earlier, we mentioned that the rock gnome lichen
is almost always found growing with the moss Andreaea. These collectors
or poachers are indiscriminate, stripping everything moss-like from
logs, rocks, and trees within entire coves and watersheds. This
includes essentially anything they think can be sold in the commercial
florist trade. The largest and best remaining populations of rock gnome
lichen are located within the Great Smoky Mountains National Park,
where they are more accessible and therefore more susceptible to
intentional or inadvertent collection. Therefore, the Park Service has
expressed concerns that attracting moss collectors to watersheds
designated as sanctuaries and occupied by the endangered lichen could
result in devastating incidental collection of the listed species.
The Park Service has expressed definite concerns about any plans to
designate critical habitat for the rock gnome lichen because of the
collection danger to this species' tiny, vulnerable populations. In
fact, legislation has recently been enacted that gives the Park Service
the authority to withhold from the public any specific locality data
for endangered, threatened, rare, or commercially valuable resources
within a park (Thomas Bill, Section 207, 16 U.S.C. 5937).
Given the very small size of most colonies and the slow growth rate
of this species, extirpation by collecting, vandalism, and habitat
degradation by curiosity seekers is a distinct possibility (Weakley
1988; personal observation). Many of the populations are easily
accessible, being close to trails or roads, but they are currently
unadvertised and therefore mostly unnoticed by the general public.
Publicity could generate an increased demand and intensify collecting
pressure, or facilitate opportunities for further vandalism. This
species has already been subjected to excessive collecting by
scientific collectors at several sites. Increased publicity and a
provision of specific location information associated with critical
habitat designation could result in increased collection from the
remaining wild populations. Although taking of endangered plants from
lands under Federal jurisdiction and reduction to possession is
prohibited by the Act, these taking provisions are difficult to
enforce. We believe publication of critical habitat descriptions would
make rock gnome lichen more vulnerable to collectors and curiosity-
seekers, and would increase enforcement problems for the U.S. Forest
Service and the National Park Service. Also, the populations on private
lands would be more vulnerable to taking, where they receive little or
no protection under the Act.
Our fears of increased human threats to the species from
publication of maps of the occupied sites is based upon specific
experience, not on conjecture. Another federally listed North Carolina
mountain plant for which critical habitat was designated was severely
impacted by collectors immediately after the maps were published. This
collection happened even though this plant was not previously known to
be desired by rare plant collectors and had never been offered for sale
in commercial trade. Some of the collectors appeared in the local
Forest Service district offices, with the critical habitat map from the
local newspaper in their hands, asking directions to the site. Such
incidents are extremely difficult to document. The only reason we were
able to do so in this case was because, for this very rare and
restricted plant, every individual was mapped. When plants vanished
from our permanent plots, we were able to find the carefully covered
excavations where they had been removed. Otherwise, we would have only
observed a precipitous crash in the populations without knowing that
the cause was directly attributable to collection apparently stimulated
by publication of specific critical habitat maps.
Increased visits to population locations stimulated by critical
habitat designation, even without collection of the species, could
adversely affect rock gnome lichen due to the associated increase in
trampling of the fragile habitat it occupies. This might not be as
serious a concern in other parts of the country where there is
relatively little recreational pressure, but the Great Smoky Mountains
National Park has more visitors annually than any other park in the
United States. Even if just a small percentage of those people visited
the sites occupied by the lichen, the potential adverse effects to the
species could be tremendous and irreparable.
Another concern for this species is the fact that, despite attempts
by lichenologists and tissue culture experts, no one has been able to
propagate rock gnome lichen. If populations are vandalized or collected
to the point of extirpation, it is not possible to restore them.
Similarly, restoration of devastated populations of other lichens has
often not been successful (Science News, August 2000). We believe that
anything that increases the chances of losing additional populations,
such as publicizing locations of remaining sites, represents an
unconscionable risk to the species' chance of survival and recovery.
In addition, we believe that designation would not provide
significant benefits that would outweigh these increased risks. A
majority of the
[[Page 18067]]
remaining populations are on public lands, primarily under the
jurisdiction of the United States Forest Service and National Park
Service. These agencies are cooperating with us to protect the species
from trampling and inappropriate collection, as well as to monitor the
effects of air pollution. We are also working with the North Carolina
and Tennessee Heritage Programs, the North Carolina Plant Conservation
Program, and The Nature Conservancy to determine protection priorities
for the remaining populations. The Nature Conservancy has recently
secured a conservation easement for one of the most significant
privately owned sites. We, along with all of these agencies, work to
inform the public about the lichen and its importance, while at the
same time ensuring the protection of the species and its habitat from
potential threats. Within the National Parks, there is no commercial
logging. Occupied sites outside the Parks are almost exclusively on
steep rock faces and cliffs where no federal projects are likely to
occur. In cases where excessive degradation of the lichen's cliff
habitat has resulted from recreational overuse, both the National Park
Service and the U.S. Forest Service have acted to close those sensitive
areas to the public. No greater protection would be afforded by
critical habitat designation.
The Service has always recognized the value of habitat to the
conservation of endangered and threatened species, and continues to
work with other agencies and non-federal land managers to accomplish
the most effective protection and management of lands critical to the
survival of listed species. The Federal and State agencies and
landowners involved in managing the habitat of this species have been
informed of the species' locations and of the importance of protection.
In addition, we are working with several private landowners of
significant sites to protect the populations on their lands. Although
we have not yet been able to definitively link population declines in
rock gnome lichen to air pollution, we remain concerned that air
quality may be an important factor for this species, as it is for many
other lichens. The largest and best remaining populations of rock gnome
lichen are within the Great Smoky Mountain National Park, which is
designated by the Environmental Protection Agency as a Class I Air
Quality Area, where no degradation of air quality is allowed.
Therefore, designation of areas of the Park as critical habitat for
this species would offer no additional protection of the species from
air quality problems if these are determined to be a critical factor
for this species' continued existence.
For species like rock gnome lichen, that have extremely small
populations (most are less than 1 m\2\ [approx. 9 ft\2\]) and a very
small, restricted range, the triggers for ``jeopardy'' and ``adverse
modification'' of critical habitat under section 7 of the Act are
essentially identical. Because the triggers for ``jeopardy'' and
``destruction or adverse modification'' of critical habitat both
require that the Service find that a Federal action is likely to have
an appreciable effect on both the survival and recovery of the species,
we have determined that because of the precarious status of the
species, the small size of the surviving populations, the restricted
range of the species, and the limited amount of suitable habitat
available to the species, any Federal action with the potential to
trigger the standard for destruction or adverse modification of
critical habitat would also jeopardize the species' continued existence
(the jeopardy standard without critical habitat). Therefore, no
additional protection would be provided to this species through
designation of critical habitat that would not already be provided
through the jeopardy standard. We acknowledge that critical habitat
designation in some situations may provide some value to the species,
for example, by identifying areas important for conservation. However
for the rock gnome lichen, we have weighed the potential benefits of
designating critical habitat against the significant risks of doing so,
and find that the minor benefits of designating critical habitat do not
outweigh the potential increased threats from collection, vandalism,
and inadvertent habitat degradation caused by curiosity-seekers.
Therefore, we propose that designation of critical habitat for the rock
gnome lichen is not prudent.
Secretarial Order 3206: American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities and the Endangered Species Act
In accordance with the Presidential Memorandum of April 29, 1994,
and Executive Order 13175, we are required to assess the effects of
determinations on tribal land and tribal trust resources. We propose
that designation of critical habitat for the rock gnome lichen is not
prudent. Therefore, we do not anticipate any effects on tribal trust
resources if this proposed finding is made final.
Public Comments Solicited
We intend that any final action resulting from this proposed
finding will be as accurate and as effective as possible. Therefore, we
solicit comments or suggestions from the public, other concerned
governmental agencies, Native American tribes, the scientific
community, industry, or any other interested party concerning this
proposed finding. We particularly seek comments concerning whether
designating critical habitat for the rock gnome lichen is prudent, and
the possible risks and benefits of such designation.
Please submit comments as an ASCII file format and avoid the use of
special characters and encryption. Please also include ``Attn: [1018-
AH32]'' and your name and return address in your e-mail message. If you
do not receive a confirmation from the system that we have received
your e-mail message, contact us directly by calling our Asheville Field
Office (see Addresses section).
Our practice is to make all comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. In some circumstances, we would withhold
from the rulemaking record a respondent's identity, as allowable by
law. If you wish for us to withhold your name and/or address, you must
state this prominently at the beginning of your comments. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed finding. The
purpose of such review is to ensure that listing decisions are based on
scientifically sound data, assumptions, and analyses. We will send
these peer reviewers copies of this proposed finding immediately
following publication in the Federal Register. We will invite these
peer reviewers to comment, during the public comment period, on the
specific assumptions and conclusions regarding the proposed non-
designation of critical habitat.
[[Page 18068]]
We will consider all comments and information received during the
60-day comment period on this proposed finding during preparation of a
final finding. Accordingly, the final decision may differ from this
proposed finding.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this document easier to understand, including answers to questions
such as the following: (1) Are the requirements in the document clearly
stated? (2) Does the document contain unnecessary technical language or
jargon that interferes with the clarity? (3) Does the format of the
proposed finding (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce its clarity? (4) Is the description
of the notice in the Supplementary Information section of the preamble
helpful in understanding the notice? (5) What else could we do to make
the notice easier to understand?
Send a copy of any comments that concern how we could make this
notice easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW, Washington,
DC 20240. You may e-mail your comments to this address:
[email protected].
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed finding does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under 44 U.S.C. 3501 et seq. This proposed finding will
not impose new record-keeping or reporting requirements on State or
local governments, individuals, businesses, or organizations.
National Environmental Policy Act
We have determined that we do not need to prepare an Environmental
Assessment or an Environmental Impact Statement as defined by the
National Environmental Policy Act of 1969 in connection with
regulations adopted pursuant to section 4(a) of the Endangered Species
Act, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).
References Cited
A complete list of all references cited in this proposed finding is
available upon request from the Asheville Field Office (see Addresses
section).
Author
The primary author of this document is Nora Murdock (see Addresses
section).
Dated: March 29, 2001.
Marshall P. Jones, Jr.,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 01-8344 Filed 4-4-01; 8:45 am]
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