[Federal Register Volume 77, Number 81 (Thursday, April 26, 2012)]
[Proposed Rules]
[Pages 24908-24915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-10049]



[[Page 24908]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0016; 4500030114]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List Aliciella formosa (Aztec gilia) as Endangered or 
Threatened With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list Aliciella formosa (Aztec gilia) as 
endangered or threatened under the Endangered Species Act of 1973, as 
amended (Act), and designate critical habitat. Based on our review, we 
find that the petition does not present substantial information 
indicating that listing Aztec gilia may be warranted. Therefore, we are 
not initiating a status review in response to this petition. However, 
we ask the public to submit to us any new information that becomes 
available concerning the status of, or threats to, Aztec gilia or its 
habitat at any time.

DATES: We made the finding announced in this document on April 26, 
2012.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R2-ES-2012-0016. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, New Mexico Ecological Services Field Office, 
2105 Osuna NE., Albuquerque, NM 87113. Please submit any new 
information, materials, comments, or questions concerning this finding 
to the above street address.

FOR FURTHER INFORMATION CONTACT: Wally ``J'' Murphy, Field Supervisor, 
New Mexico Ecological Services Field Office (see ADDRESSES) by 
telephone (505-346-2525) or by facsimile (505-346-2542). Persons who 
use a telecommunications device for the deaf (TTD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files. To the maximum extent practicable, we 
are to make this finding within 90 days of our receipt of the petition 
and publish our notice of this finding promptly in the Federal 
Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that substantial scientific and commercial 
information was presented, we are required to promptly conduct a 
species status review, which we subsequently summarize in our 12-month 
finding.

Petition History

    On February 12, 2010, we received a petition from the WildEarth 
Guardians, dated February 12, 2010, requesting that the Aliciella 
formosa (Aztec gilia) be listed as endangered or threatened and that 
critical habitat be designated under the Act. The petition clearly 
identified itself as such and included the requisite identification 
information for the petitioner, as required at 50 CFR 424.14(a). In a 
July 19, 2010, letter to WildEarth Guardians, we acknowledged receipt 
of the petition, and reviewed the information presented in the petition 
and determined that issuing an emergency regulation temporarily listing 
the species under section 4(b)(7) of the Act was not warranted. This 
finding addresses the petition.

Previous Federal Actions

    For the purposes of this document, we will refer to Aliciella 
formosa by its common name, Aztec gilia.
    In September 1985, we published our candidate notice of review 
(CNOR) classifying Aztec gilia (identified as Gilia formosa) as a 
Category 2 species (50 FR 39526, September 27, 1985). Category 2 status 
included those taxa for which information in the Service's possession 
indicated that a proposed listing rule was possibly appropriate, but 
for which sufficient data on biological vulnerability and threats were 
not available to support a proposed rule. In the February 1990 CNOR, we 
retained a Category 2 designation for Aztec gilia (again identified as 
Gilia formosa) (55 FR 6184; February 21, 1990); in the September 1993 
CNOR, we announced that the status of Aztec gilia (again identified as 
Gilia formosa) was ``declining,'' but was still considered a Category 2 
species (58 FR 51144, September 30, 1993).
    In the 1996 CNOR, we announced a revised list of animal and plant 
taxa that were regarded as candidates for possible addition to the 
Lists of Endangered and Threatened Wildlife and Plants (61 FR 7596, 
February 28, 1996). The revised candidate list included only former 
Category 1 species. All former Category 2 species were dropped from the 
list in order to reduce confusion about the conservation status of 
these species, and to clarify that the Service no longer regarded these 
species as candidates for listing. Because Aztec gilia was a Category 2 
species, it was removed from the candidate list in 1996, and was no 
longer recognized as a candidate species.

Species Information

    The Aztec gilia (originally Gilia formosa) type specimen was 
collected prior to 1907, near Aztec, New Mexico (San Juan County), and 
was subsequently described by E. L. Greene in 1907 (Greene 1907, p. 
119; Martin and Hutchins 1980, p. 1584; Kartesz 1994, p. 468). 
Additional collections are at the U.S. National Herbarium and the 
Missouri Botanical Gardens (Knight and Cully 1986, p. 5). In 1998, G. 
formosa was reclassified to Aliciella formosa (family Polemoniaceae) 
(Porter 1998, p. 33).
    Aztec gilia is a monocarpic herbaceous perennial (a plant that 
lives for more than 2 years, flowers, sets seed, and then dies) (Porter 
1998, p. 33). The plant is up to 30 centimeters (cm) (12 inches (in)) 
tall. Older plants are woody at the base, are glandular (sticky), and 
have numerous branched stems with long, sharp-pointed, smooth-edged 
leaves that are about 25 millimeters (mm) (1.0 in) tall. Flowers are up 
to 22 mm (0.87 in) long, pinkish-purple, and trumpet-shaped. Aztec 
gilia blooms from late April through May and is distinguished from 
several closely related species by its perennial nature, woody base of 
older plants, entire leaves, and pinkish-purple flowers (New Mexico 
Native Plants Protection Advisory Committee (NMNPPAC) 1984, p. 218; 
Knight and Cully 1986, p. 7; Porter 1998, p. 33).
    Aztec gilia is only known to occur in San Juan County, near the 
towns of Aztec and Bloomfield, New Mexico (Knight and Cully 1986, p. 
8). This species appears to be found only in

[[Page 24909]]

sandy clay soils of the Animas Formation, specifically the Nacimiento 
Formation, mostly on slopes, benches, and summits of gently rolling 
hills between 1,740 to 1,890 meters (m) (5,800 to 6,200 feet (ft)) 
(Knight and Cully 1986, p. 17; Porter 1998, p. 33). The Nacimiento 
Formation (the southern extension of the Animas Formation of the San 
Juan Basin) is made up of black and gray shales, with occasional 
channel sandstone beds (Fassett 1974, p. 229).
    Aztec gilia is commonly associated with Erigeron bistiensis (Bisti 
fleabane) and Sclerocactus cloverae ssp. brackii (Brack's cactus) 
(Sivinski 1997, pp. 10-12; New Mexico Rare Plant Technical Council 
(NMRPTC) 2005, p. 2). General habitat associates found in areas 
inhabited by this species include Juniperus osteosperma (Utah juniper), 
Pinus edulis (Pinyon pine), Purshia tridentata (antelope bitterbrush), 
Cercocarpus montanus (mountain mahogany), Amelanchier utahensis (Utah 
serviceberry), Ephedra spp. (Mormon tea), Yucca angustissima 
(narrowleaf yucca), and Atriplex confertifolia (shadscale saltbush) 
(Sivinski 1997, pp. 10-12).
    The petition provided no specific information on Aztec gilia 
populations. However, the Service's files reflect that Aztec gilia is 
known from more than 75 populations, ranging in size from a few dozen 
to thousands of plants (Knight and Cully 1986, p. 18; The Nature 
Conservancy 1990, p. A-3; DeBruin 1995, p. 6; Ecosphere Environmental 
Services (Ecosphere) 1995, p. 15; 1997, p. 3; Sivinski 1997, pp. 10-12; 
Marron et al. 2008, p. 26). Surveys estimated about 15,000 plants occur 
on Bureau of Land Management (BLM) lands, but several surveys only 
counted the number of populations, indicating that the total number of 
plants on BLM lands may be higher than 15,000. There are 5 populations 
of approximately 1,400 total plants on lands owned by the State of New 
Mexico and 14 populations (unknown number of plants) on private lands 
(Knight and Cully 1986, p. 20; Sivinski 1997, pp. 10-12). Finally, 
several Aztec gilia populations are known to occur on Navajo Nation 
lands in Kutz Canyon (mixed land ownership with BLM), but the number of 
plants is unknown (Navajo Nation 2008, p. 3; Navajo Natural Heritage 
Program 2008, p. 89). The petitioner provides no information indicating 
that any of these populations are declining or have been extirpated. In 
fact, Knight and Cully (1986, p. 16) reported no populations have ever 
been extirpated. We do not have any additional information on abundance 
or long-term monitoring data from populations throughout the range of 
the species.
    In addition to the known populations described above, there appears 
to be a large amount of potentially suitable habitat unoccupied by the 
species (Knight and Cully 1986, pp. 16, 23; Sivinski 1997, p. 35). In 
1990, the BLM contracted with the Nature Conservancy to conduct survey 
work within the Farmington Resource Area for several federally listed 
and sensitive species, including the Aztec gilia. This survey concluded 
that approximately 5,700 hectares (ha) (14,000 acres (ac)) of public 
land support thousands of individual plants (The Nature Conservancy 
1990, P. A-3). An additional 51,000 ha (125,000 ac) of BLM lands were 
described as unoccupied potential habitat (The Nature Conservancy 1990, 
p. A-3). We have no information on the amount of Aztec gilia habitat 
outside of BLM lands.

Evaluation of Information for This Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the factor to determine 
whether the species responds to the factor in a way that causes actual 
impacts to the species. If there is exposure to a factor, but no 
response, or only a positive response, that factor is not a threat. If 
there is exposure and the species responds negatively, the factor may 
be a threat and we then attempt to determine how significant a threat 
it is. If the threat is significant, it may drive or contribute to the 
risk of extinction of the species such that the species may warrant 
listing as endangered or threatened as those terms are defined by the 
Act. This does not necessarily require empirical proof of a threat. The 
combination of exposure and some corroborating evidence of how the 
species is likely impacted could suffice. The mere identification of 
factors that could impact a species negatively may not be sufficient to 
compel a finding that listing may be warranted. The information must 
contain evidence sufficient to suggest that these factors may be 
operative threats that act on the species to the point that the species 
may meet the definition of endangered or threatened under the Act.
    In making this 90-day finding, we evaluated whether information on 
threats to the Aztec gilia, as presented in the petition and other 
information readily available in our files, is substantial, thereby 
indicating that the petitioned action may be warranted. Our evaluation 
of this information is presented below.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    The petition states that Aztec gilia and its habitat are threatened 
by the following: Oil and gas development; surface mining; road 
construction and use; off-road vehicle (ORV) use; electric transmission 
line installation; livestock grazing; human population growth; and BLM 
land uses. Each of these topics is discussed below.
Oil and Gas Development
    The petitioner claims that extensive oil and gas development has 
occurred within the range of Aztec gilia in the San Juan Basin 
(WildEarth Guardians 2010, pp. 9-12, citing Engler et al. 2001; BLM 
2003; GO-TECH 2010a-e). The petitioner states that oil and gas 
extraction causes destruction and degradation of Aztec gilia habitat, 
and also kills plants. Moreover, the petitioner contends that 
associated roads, well pads, pipelines, waste pits, power lines, 
railroad tracks, and other infrastructure used in oil and gas 
operations cause significant habitat disturbance (WildEarth Guardians 
2010, p. 10, citing Weller et al. 2002). The petitioner claims that, as 
of 2010, 18,000 active oil and gas wells were located within the San 
Juan Basin. The petitioner also claims that there are an additional 
9,942 wells authorized over the next 20 years within areas known to be 
occupied by Aztec gilia (WildEarth Guardians 2010, pp. 9-10, citing BLM 
2003). To support these additional wells, the petitioner indicates that 
5,794 kilometers (km) (3,600 miles (mi)) of new gas pipeline will have 
a disturbance footprint of at least 4,709 ha (11,636 ac) (WildEarth 
Guardians 2010, p. 9, citing Engler et al. 2001).

[[Page 24910]]

Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claims, the factual description of 
oil and gas development presented appears plausible. However, the 
petitioner provided no specific data to support that oil and gas 
development might impact Aztec gilia populations. Information in our 
files indicates that some of the oil and gas wells likely overlap with 
Aztec gilia habitat, but the petition did not contain, nor do we have, 
any information on the extent or degree of occupied habitat that has 
been impacted or may be impacted. The petition states that, as of 2010, 
there are 18,000 active oil and gas wells located in the San Juan 
Basin. However, the petition does not address how much Aztec gilia 
habitat or how many populations may have been affected by these oil and 
gas wells. Habitat for Aztec gilia does not encompass the entirety of 
the San Juan Basin.
    Despite the claim that destruction and degradation of Aztec gilia 
habitat has occurred from oil and gas activities, the petitioner does 
not provide citations or other substantial information to support their 
assertions regarding the present or threatened destruction, 
modification, or curtailment of habitat or range from oil and gas 
activities. On the contrary, the petitioner cites that this plant 
tolerates and recovers from some habitat disturbance (NatureServe 
2009). Similarly, Sivinski (1997, p. 11) found a re-establishing 
occurrence of about 100 plants on a gas well pad and several other 
healthy populations near well pads and roads. Our files also contain 
BLM reports that summarize 4 years of monitoring (1991-1995) indicating 
a significant overall increase in the abundance of Aztec gilia, 
including those plots associated with oil and gas extraction activities 
(BLM 1996, pp. 6-8; DeBruin 1995, entire). The BLM concluded that oil 
and gas, among other activities, did not cause the extirpation of 
plants, but populations associated with oil and gas activities 
contained younger individuals (seedlings and juveniles) (DeBruin 1995, 
p. 8; BLM 1996, pp. 6-8). This information illustrates that the species 
may be tolerant of disturbance. Based on this review, we find that the 
information provided in the petition, as well as other information 
readily available in our files, does not present substantial scientific 
or commercial information indicating that oil and gas development 
constitutes a threat to the destruction, modification, or curtailment 
of Aztec gilia's habitat or range.
Surface Mining
    The petitioner claims that surface mining has occurred within the 
range of Aztec gilia in the San Juan Basin (WildEarth Guardians 2010, 
pp. 2 and 18). The petitioner states that surface mining causes 
destruction and degradation of Aztec gilia habitat, and causes direct 
plant mortality. The BLM's 2003 Resource Management Plan (RMP) 
indicates that surface mining, specifically coal leases, will continue 
to be managed as specified in their 1988 RMP, with new coal leases 
considered on a case-by-case basis (BLM 2003, p. 8). The extent of 
surface mining leases that overlap with occupied Aztec gilia habitat 
was not provided by the petitioner nor do we have any readily available 
information on the extent or degree of occupied habitat that has been 
or may be impacted by surface mining activities.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claims, the factual description of 
surface mining presented appears plausible. The petitioner cites the 
BLM's 2003 RMP in the discussion of multiple use activities, which 
includes surface mining, on BLM land; however, the petitioner provided 
no specific data to support how surface mining might impact Aztec gilia 
populations. Despite the claim that surface mining could detrimentally 
affect Aztec gilia habitat, the petitioner does not provide citations 
or other substantial information to support their assertions regarding 
the present or threatened destruction, modification, or curtailment of 
habitat or range from surface mining. Therefore, we find that the 
information provided in the petition, as well as other information 
readily available in our files, does not present substantial scientific 
or commercial information indicating that surface mining constitutes a 
threat to the destruction, modification, or curtailment of Aztec 
gilia's habitat or range.
Road Construction and Use
    The petitioner states that road construction and use can 
detrimentally impact imperiled plants, including Aztec gilia, through 
soil compaction, soil erosion, spread of noxious weeds, heavy metals, 
and dust pollution, which can alter water flows, destabilize slopes, 
and offer increased access by ORVs (WildEarth Guardians 2010, p. 14, 
citing Forman and Alexander 1998; Trombulak and Frissell 2000; Glebard 
and Belknap 2003). The petitioner asserts that road density is high in 
the Aztec gilia's range and is increasing due to oil and gas activities 
(WildEarth Guardians 2010, p. 15, citing BLM 2008b). The petition does 
not define or quantify the parameters used to describe road density as 
``high''. The petitioner claims that one of the objectives in the 2003 
BLM RMP is to improve existing roads, and that the maintenance 
activities associated with road improvement would increase disturbance 
to adjacent areas (WildEarth Guardians 2010, p. 14). The petitioner 
also asserts that the human populations in the towns of Farmington, 
Bloomfield, and Aztec, New Mexico, increased approximately 9 to 13 
percent between the years 2000 and 2008, which may suggest that more 
roads will be constructed (WildEarth Guardians 2010, p. 14). The 
petitioner provides one example of a proposed road construction project 
within the City of Aztec, where 16 Aztec gilia plants might potentially 
be destroyed incidentally (WildEarth Guardians 2010, p. 14, citing 
Marron et al. 2008), but no further information was provided by the 
petitioner or found in our files.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claims concerning impacts from 
road construction and use, the factual description presented appears 
plausible. However, we reviewed citations provided by the petitioner 
and assertions regarding road construction and use, and find that the 
petitioner's statements concerning detrimental impacts from road 
construction and use to be unsubstantiated. The petition fails to 
describe how and to what extent roads may be affecting the species. 
There is no information with regards to whether the proposed City of 
Aztec road was built or if any plants were impacted. Nonetheless, the 
majority of habitat is on Federal land, and the potential loss of 
plants on City of Aztec lands is likely not significant to the overall 
population. On BLM lands, surveys are required prior to project 
implementation (see discussion under Factor D, below). Under the BLM's 
Special Status Species policy, if Aztec gilia individuals are 
discovered on BLM lands, the agency requires that the project proponent 
minimize or avoid impacts. Therefore, we find that the information 
provided in the petition, as well as other information readily 
available in our files, does not present substantial scientific or 
commercial information indicating that road use and construction 
constitutes a threat to the

[[Page 24911]]

destruction, modification, or curtailment of Aztec gilia's habitat or 
range.
Off-Road Vehicles
    The petitioner asserts that ORV use is detrimental to native 
vegetation and imperiled plants (Stokowski and Lapointe 2000; WildEarth 
Guardians 2010, p. 17 citing BLM 2006) and that the amount of ORV use 
on the Farmington Field Office BLM lands is increasing (BLM 2003). The 
petitioner claims that ORVs can access BLM lands that are occupied by 
Aztec gilia, or contain potentially suitable habitat, and that ORVs 
could run over and kill plants (WildEarth Guardians 2010, pp. 17, 19). 
Further, the petitioner believes that ORV use is not limited to 
designated trails within a large, unquantified area of potentially 
suitable Aztec gilia habitat (WildEarth Guardians 2010, p. 17). The 
petitioner suggests that the number of juvenile Aztec gilia is reduced 
in these areas with high ORV use (WildEarth Guardians 2010, p. 19, 
citing NatureServe 2009).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claim concerning impacts from 
ORVs, the factual description of impacts from ORV use presented appears 
plausible. Information in the petition discusses that ORV use can 
impact native vegetation and imperiled plants, in general (Stokowsi and 
Lapointe 2000, p. 3; BLM 2006, p. 58).
    No information was presented indicating that ORV use is detrimental 
to Aztec gilia. ORV users can likely access areas with Aztec gilia 
populations and potentially suitable habitat (BLM 2003, pp. 3, 7; BLM 
2006, pp. 42, 66). We also reviewed NatureServe (2009, p. 2) but could 
not substantiate the petitioner's claim that higher ORV use resulted in 
reduced juvenile Aztec gilia plants. In fact, DeBruin (1995, p. 7) 
found that plots disturbed by ORV use had the greatest increase in new 
recruits of Aztec gilia. Nevertheless, we acknowledge that ORVs 
partially damaged one monitoring plot of Aztec gilia, but note that the 
majority of the damage is likely due to a combination of drought and 
pipeline construction (Floyd-Hanna 1993, p. 8). We believe that this 
level of impact may not be significant to the species, because it did 
not result in the extirpation of Aztec gilia at this location. 
Moreover, Sivinski (1997, p. 11) reported healthy populations of Aztec 
gilia adjacent to an area heavily impacted by ORV traffic and in an 
area with a single gas well pad, road, and a motorcycle trail through 
the middle of the species' habitat. Based on this review, we find that 
the information provided in the petition, as well as other information 
readily available in our files, does not present substantial scientific 
or commercial information indicating that ORV use constitutes a threat 
to the destruction, modification, or curtailment of Aztec gilia's 
habitat or range.
Electric Transmission Lines
    The petitioner claims that in 2008, the city of Farmington, New 
Mexico, and their electric company, Kinder Morgan, proposed to 
construct a 14-mile electric transmission line that had known 
occurrences of Aztec gilia within the project area (WildEarth Guardians 
2010, p. 17, citing City of Farmington 2008). The transmission line 
right-of-way is mostly on Federal land administered by the BLM with a 
few sections on State and private land (City of Farmington 2008).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claim concerning impacts from an 
electric transmission line installation by the City of Farmington, New 
Mexico, the factual information presented appears plausible. No 
information was presented that indicates there were direct impacts on 
plants, nor is there any documentation of direct or indirect impacts to 
Aztec gilia from this project in our files. We reviewed information 
provided by the petitioner and found that 10 Aztec gilia plants were 
located within the preliminary right-of-way for the project; however, 
the final design avoided all plants (City of Farmington 2008, p. 32). 
Under the BLM's 2003 RMP, if Aztec gilia individuals are discovered on 
BLM lands, the agency requires that the project proponent minimize or 
avoid impacts (see discussion under Factor D, below) (City of 
Farmington 2008, Exhibit A, p. 5). Also, readily available information 
in our files indicates that other transmission line projects have 
similarly avoided damaging or destroying Aztec gilia plants. In 1987, 
Aztec gilia plants were also avoided along a proposed transmission line 
associated with the Navajo Dam project (City of Farmington 1987, p. 1). 
Additionally, Farmington Electric Utility Services, in coordination 
with the BLM, also avoided 21 populations with approximately 550 plants 
near the Potter Canyon compressor station electric utility powerline 
(Ecosphere 1997, p. 1). For these reasons, we find that the information 
provided in the petition, as well as other information readily 
available in our files, does not present substantial scientific or 
commercial information indicating that electric transmission line 
construction constitutes a threat to the destruction, modification, or 
curtailment of Aztec gilia's habitat or range.
Livestock Grazing
    The petitioner claims that domestic livestock grazing occurs within 
Aztec gilia's habitat on private, Navajo Nation, New Mexico State, and 
BLM lands (WildEarth Guardians 2010, p. 17). The petitioner asserts 
that the BLM disregarded livestock grazing as a potential threat in an 
environmental assessment for two grazing allotments within areas that 
potentially contain suitable habitat for Aztec gilia, because neither 
plant surveys nor mitigation measures were mentioned in that assessment 
(WildEarth Guardians 2010, p. 17, citing BLM 2009; WildEarth Guardians 
2010a, b). The petitioner believes that livestock grazing spreads 
noxious weeds and invasive plants that could alter the habitat for 
Aztec gilia (WildEarth Guardians 2010, p. 17, citing Fleischner 1994; 
Belsky and Gelbard 2000; DiTomaso 2000; Parker et al. 2006). The 
petitioner further claims that grazing compacts soil, increases 
erosion, and results in soil degradation. Moreover, the petitioner 
asserts that livestock trample and eat Aztec gilia.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claim concerning impacts from 
domestic livestock grazing, the factual information presented appears 
plausible. The petitioner states that domestic livestock grazing occurs 
on private, BLM, New Mexico State, and Navajo Nation lands. The 
petitioner states that grazing can destroy and degrade Aztec gilia 
habitat by promoting the spread of noxious weeds and invasive plants 
that could outcompete the Aztec gilia and by trampling the soil, 
leading to compaction and erosion of Aztec gilia habitat (WildEarth 
Guardians 2010, p. 17). In addition, Aztec gilia plants may be trampled 
and eaten by livestock.
    However, the citations listed for this statement do not involve New 
Mexico private or State land, or BLM or Navajo Nation land, further, 
they are not citations specific to Aztec gilia (WildEarth Guardians 
2010, p. 17, citing Fleischner 1994; Belsky and Gelbard 2000; DiTomaso 
2000; Parker et al.

[[Page 24912]]

2006). Likewise, we have no substantial readily available information 
in our files regarding grazing as a possible threat to Aztec gilia, or 
whether grazing co-occurs with the species on New Mexico State or 
private lands. Additionally, DeBruin (1995, p. 7) monitored Aztec gilia 
over 4 years and found the species responded positively (i.e., 
increased in number) when disturbed by livestock. Finally, we have no 
readily available information in our files regarding the threat to 
Aztec gilia and its habitat from noxious weeds and invasive species 
that may be spread by livestock grazing. The BLM's 2003 RMP outlines 
that the goals of the Livestock Management program include promoting 
native plant health, and soil stability, and providing the basic 
requirements of rangeland ecological sites. Based on this review, we 
find that the information provided in the petition, as well as other 
information readily available in our files, does not present 
substantial scientific or commercial information indicating that the 
livestock grazing, and the possible spread of noxious weeds and 
invasive species constitutes a threat to the destruction, modification, 
or curtailment of Aztec gilia's habitat or range.
Human Population Growth
    The petitioner asserts that human population growth of Aztec, 
Bloomfield, and Farmington, New Mexico, will increase commercial and 
residential construction, farming, and recreational impacts and will 
result in a threat to Aztec gilia and its habitat (WildEarth Guardians 
2010, p. 18).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The petitioner provided no specific information, nor do we have any 
readily available information in our files, to substantiate the extent 
of human population growth and its potential impact on Aztec gilia. 
Furthermore, the petitioner provided no specific information, nor do we 
have any readily available information in our files, to substantiate if 
human population growth would result in any increase in commercial and 
residential construction, farming, or recreational impacts and their 
potential impact on Aztec gilia. Therefore, we find that the 
information provided in the petition, as well as other information 
readily available in our files, does not present substantial scientific 
or commercial information indicating that human population growth 
constitutes a threat to the destruction, modification, or curtailment 
of Aztec gilia's habitat or range.
Other BLM Land Uses
    The petitioner asserts that a variety of activities occur on BLM 
land that could detrimentally affect Aztec gilia habitat including 
mining, motorized and non-motorized vehicle use on roads and trails, 
hiking, horseback riding, camping, and infrastructure developments such 
as picnic ground and camping areas (WildEarth Guardians 2010, p. 18).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claim concerning impacts from 
other BLM land uses, the factual information presented appears 
plausible. The petitioner cites the BLM's 2003 RMP in the discussion of 
multiple use activities on BLM land; however, the petitioner provided 
no specific data to support how these other land uses might impact 
Aztec gilia populations. Despite the claim that these other land uses 
could detrimentally affect Aztec gilia habitat, the petitioner does not 
provide citations or other substantial information to support their 
assertions regarding the present or threatened destruction, 
modification, or curtailment of habitat or range from other BLM land 
uses. Therefore, we find that the information provided in the petition, 
as well as other information readily available in our files, does not 
present substantial scientific or commercial information indicating 
that other BLM land uses constitute a threat to the destruction, 
modification, or curtailment of Aztec gilia's habitat or range.
    In summary, on the basis of a review of the information provided by 
the petitioner and readily available in our files, we determined that 
the petition does not present substantial information to indicate that 
listing Aztec gilia may be warranted due to the present or threatened 
destruction, modification, or curtailment of its habitat or range by 
any threats, including oil and gas development, surface mining, road 
construction and use, off-road vehicles, electric transmission line 
construction, livestock grazing, human population growth, or other BLM 
land uses.

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

Information Provided in the Petition
    The petitioner cites that plants and seeds of Aztec gilia have been 
collected in the past by permit for mitigation efforts. However, the 
petioner does characterize the collection of Aztec gilia plants and 
seeds for mitigation purposes as overutilization (WildEarth Guardians 
2010, p. 19).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Readily available information in our files confirms that plants and 
seeds have been collected under a BLM permit (Floyd-Hanna 1994, entire; 
Ecosphere 1996, entire; BLM 1996, p. 5; Reeves 1996, entire; Murray 
2006, p. 1). We do not know how many seeds were collected on BLM lands, 
thus we have no evidence of possible overutilization impacts to the 
species resulting from these activities. In addition, based on Service 
experience, the amount of seeds and plants collected for mitigation 
purposes is usually collected in a sustainable fashion so as not to 
impact the extant populations. In summary, on the basis of a review of 
the information provided by the petitioner and readily available in our 
files, we determined that the petition does not present substantial 
information to indicate that listing Aztec gilia may be warranted due 
to overutilization for commercial, recreational, scientific, or 
educational purposes. Therefore, we have determined that the petition 
does not present substantial information to indicate that listing may 
be warranted under this factor.

C. Disease or Predation

Information Provided in the Petition
    The petitioner provides no information pertaining to Factor C.
Evaluation of Information Available in Service Files
    Information in our files indicates that moth larvae (family 
Gelechiidae) may at times bore into the lower, woody caudex of Aztec 
gilia, contributing to mortality (Porter and Floyd 1992, p. 246; Floyd-
Hanna 1993, p. 8). However, we have no information indicating that any 
populations have been significantly affected by moth larvae. We have no 
information of any other disease or predation potentially affecting the 
species. In summary, on the basis of a review of the information 
provided by the petitioner and readily available in our files, we 
determined that the petition does not present substantial information 
to indicate that listing Aztec gilia may be warranted due to disease or 
predation. Therefore, we have determined that the petition does not 
present substantial information to

[[Page 24913]]

indicate that listing may be warranted under this factor.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition
    The petitioner asserts that Aztec gilia is not adequately protected 
by Federal or State laws or policies to prevent its endangerment or 
extinction. The petition reports that Aztec gilia is listed as 
endangered by the State of New Mexico; however, the petitioner claims 
that this designation provides little regulatory protection for the 
habitat of the species (WildEarth Guardians 2010, p. 18, citing New 
Mexico Energy, Minerals, and Natural Resources Department 1995). The 
petitioner states that the Navajo Nation lists the species as 
endangered (WildEarth Guardians 2010, p. 18, citing Navajo Nation 
2008). This information is incorrect. The Navajo Nation has this 
species listed as G4, which is defined as any species or subspecies for 
which the Navajo Nation Department of Fish and Wildlife (NNDFWL) does 
not currently have sufficient information to support listing the 
species as G2 or G3 (endangered), but is actively seeking information 
to determine if this species warrants further protection on the Navajo 
Nation. The petition also states that NatureServe classifies this 
species as G2, globally imperiled; N2, nationally imperiled; S1 
critically imperiled in the Navajo Nation; and S1, imperiled in the 
State of New Mexico (WildEarth Guardians 2010, p. 18, citing 
NatureServe 2009). The G2 status is defined as imperiled because it is 
a very narrow endemic dependent on soil type and has a high risk for 
extinction. The N2 status defined as imperiled due to a restricted 
range and very few populations; with a high risk for extirpation. The 
S1 status is critically imperiled because of extreme rarity or because 
of some factor(s), such as very steep declines, making it especially 
vulnerable to extirpation. The petition reports that the plant was 
previously a Category 2 species, indicating that the Service believed 
that listing the species may be appropriate; now Aztec gilia is 
considered a species of concern by the Service (WildEarth Guardians 
2010, p. 18). The petitioner cites that Aztec gilia is also a BLM 
sensitive species and special management species; however, the 
petitioner further claims that these designations provide no protection 
or mitigation for impacts (WildEarth Guardians 2010, pp. 18-19, citing 
BLM 2009).
    Finally, the petitioner states that inadequate regulatory 
protection exists for an area managed by the BLM and known to be 
occupied by Aztec gilia. That area, designated as the Aztec Gilia Area 
of Environmental Concern (ACEC) is approximately 2,833 ha (7,000 ac) in 
size; however, the BLM rescinded the designation in 2003 (WildEarth 
Guardians 2010, pp. 9-10). The petitioner claims that oil and gas 
development, of up to 153 well sites, could occur within the former 
ACEC. Moreover, an additional 395 well sites could potentially be 
developed within Kutz Canyon on the Navajo Nation, another area where 
Aztec gilia occurs (WildEarth Guardians 2010, pp. 9-10, citing BLM 
2003).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claim concerning the inadequacy of 
existing regulatory mechanisms, the information is not factually 
correct, particularly related to the statements regarding the Navajo 
Nation's status of the species, as explained above. The information in 
the petition and currently available in our files does not indicate 
that Aztec gilia is threatened by the inadequacy of existing regulatory 
mechanisms. This petition identifies risk classifications made by other 
organizations such as NatureServe or State Agencies, as evidence of 
extinction risk for a species. Risk classifications by other 
organizations or made under other Federal or State statutes may be 
informative, but the classification alone does not provide the 
rationale for a positive 90-day finding under the Act. For example, as 
explained by NatureServe, their assessments of a species' conservation 
status do ``not constitute a recommendation by NatureServe for listing 
under the U.S. Endangered Species Act'' because NatureServe assessments 
``have different criteria, evidence requirements, purposes and 
taxonomic coverage than government lists of endangered and threatened 
species, and therefore these two types of lists should not be expected 
to coincide'' (http://www.natureserve.org/prodServices/statusAssessment.jsp).
    We find that Aztec gilia receives no protection from the 
NatureServe designations because these lists only serve to notify the 
public of the species' status and do not require any conservation or 
management actions or provide any regulatory authority for conservation 
of species.
    The State of New Mexico lists Aztec gilia as endangered. As such, 
Aztec gilia is protected from unauthorized collection, transport, or 
sale by the New Mexico Endangered Plant Species Act, 75-6-1 NMSA 1978. 
This law prohibits the taking, possession, transportation and 
exportation, selling or offering for sale any listed plant species. 
Listed species can only be collected under permit from the State of New 
Mexico for scientific studies and impact mitigation; however, this law 
does not provide any protection for Aztec gilia habitat. There are no 
statutory requirements under the jurisdiction of the State of New 
Mexico that serve as an effective regulatory mechanism for reducing or 
eliminating the threats that may adversely affect Aztec gilia habitat. 
There are also no requirements under the New Mexico State statutes to 
develop a recovery plan that will restore and protect existing habitat 
for the species.
    The petitioner incorrectly claims that Aztec gilia is listed as an 
endangered species on the Navajo Nation. The species is classified as a 
G4 species, which means that the NNDFWL does not currently have 
sufficient information to support it being listed as an endangered 
species (Navajo Nation 2008, pp. 1, 3). As such, the NNDFWL actively 
seeks information on this species to determine if it warrants 
protection. Because Aztec gilia is listed as a G4 species, there is no 
regulatory protection provided to the species on the Navajo Nation.
    The ACEC was established in the BLM's Farmington Field Office 1988 
RMP, but was rescinded in 2003, when the RMP was revised (2003 RMP). 
During the revision, the BLM determined that lands within the ACEC were 
already leased for oil and gas exploration prior to the 1988 
designation and the ACEC contained poor quality habitat for Aztec gilia 
(DeBruin 1991, entire; DeBruin 1995, pp. 10-11; BLM 2003, p. 3). The 
petition implicitly relies on a general assumption that rescinding the 
ACEC would be detrimental to the species, but does not include any 
information regarding the improved protections from the species-
specific measures provided by the 2003 RMP.
    Nearly 70 percent (52 of 75) of the Aztec gilia occurrences are 
completely or partially on Federal land, and are therefore protected 
under the 2003 RMP and the Aztec gilia's status as a BLM special 
management species. For example, on BLM lands, Aztec gilia is managed 
as a candidate for Federal listing in order to minimize impacts and 
preclude listing. As a BLM special management species, all of the 
protections provided by the pre-2003 ACEC apply. Additionally, the 
BLM's Special Management Species Policy requires biological surveys 
prior to project implementation in known or

[[Page 24914]]

suitable Aztec gilia habitat. If plants or suitable habitat are found, 
the pad or pipeline must be relocated and directional drilling can be 
used as needed. Avoidance is the primary conservation measure; 
transplanting plants is only used as a last resort. As such, the BLM 
currently provides protective measures throughout habitat with the 
potential to support Aztec gilia. Based on our evaluation, we conclude 
that the 2003 RMP is more protective than the 1988 RMP and previous 
ACEC designation. The current guidelines under the 2003 RMP will 
minimize various impacts to Aztec gilia across the San Juan Basin (BLM 
2003, pp. 3, 2.32; BLM 2008a, entire). Consequently, the petition fails 
to present substantial information indicating that the withdrawal of 
the ACEC designation is a threat. Further, we have no information 
concerning the potential well sites within the previous ACEC or Kutz 
Canyon, nor is there any documentation that if these sites were 
developed the species would be threatened.
    The petitioner correctly notes that the Service identifies Aztec 
gilia as a species of concern (Service 2010). While not a formal legal 
designation under Service regulations, a species of concern is defined 
as a taxon for which further biological research and field study are 
needed to resolve its conservation status or which is considered 
sensitive, rare, or declining on lists maintained by Natural Heritage 
Programs, State wildlife agencies, other Federal agencies, or 
professional and academic scientific societies. Species of concern are 
identified for planning purposes only, and the title confers no 
regulatory protection.
    The information in the petition and currently available in our 
files indicates that the existing regulatory mechanisms are providing 
adequate protection for the species. We find that the petitioner's 
claim that there are few protections within the range of Aztec gilia 
does not constitute an argument for inadequacy of existing regulations, 
because we do not find substantial evidence that there are any threats 
to Aztec gilia. Based on our evaluation of the information presented in 
the petition and readily available in our files, we have determined 
that the petition does not present substantial information to indicate 
that listing Aztec gilia may be warranted due to the inadequacy of 
existing regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The petitioner asserts that the following conditions under Factor E 
threaten Aztec gilia: Mitigation techniques; climate change; and the 
plant's narrow range. Each of these potential threats is discussed 
below.
Mitigation Techniques
    The petitioner asserts there has been difficulty with mitigation 
efforts involving transplanting or reseeding of Aztec gilia and 
collection of seeds (WildEarth Guardians 2010, pp. 19-20). The 
petitioner indicates that Federal agencies generally avoid 
transplanting for mitigation purposes because they rarely succeed 
(WildEarth Guardians 2010, p. 19, citing U.S. Army Corp of Engineers 
1997).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claim concerning difficulties with 
mitigation techniques, the factual information presented appears 
plausible. Our records indicate that for one project, Aztec gilia was 
transplanted and monitored from 1990 to 1995 (BLM 1996, pp. 5-6). The 
transplants had a 5 percent survival rate (Ecosphere 1996, p. 6). 
Another project in 1991, transplanted 92 Aztec gilia; by 1994, only 5 
individuals survived, and by 1996, only 2 individuals survived (BLM 
1996, p. 7; Floyd-Hanna 1994, pp. 5-6). As a result of these attempts, 
the BLM does not consider transplanting to be viable mitigation. We 
found one reseeding report in our files that summarized Aztec gilia 
germination efforts in a greenhouse where there was 100 percent 
mortality before seedlings reached transplantable size (Reeves 1996, 
entire). Another report demonstrated that seed collection can be 
difficult in some years (Murray 2006, entire). No specific information 
was provided or is readily available in our files, to indicate that 
population size, range, and number of populations are so restricted 
that the limited success of transplanting, reseeding, or seed 
collection efforts are detrimental to the species. In addition, the 
petition did not provide evidence that mitigation techniques may pose a 
threat to Aztec gilia. Therefore, we find that the information provided 
in the petition, as well as other information readily available in our 
files, does not present substantial scientific or commercial 
information indicating that the petitioned action may be warranted due 
to concerns about mitigation techniques.
Climate Change
    The petitioner claims that, because of its restricted range, Aztec 
gilia is threatened by climate change predictions of rising 
temperatures and increased duration of drought (WildEarth Guardians 
2010, p. 20, citing Parmesan et al. 2000; National Safety Council (NSC) 
2003; Intergovernmental Panel on Climate Change (IPCC) 2007; U.S. 
Climate Change Science Program (CCSP) 2008; Karl et al. 2009). The 
petitioner cites Allen and Breshears (1998), who predict that climate 
change would cause unprecedented rates of vegetation shifts due to 
increased warming, especially along boundaries of semi-arid ecosystems 
(WildEarth Guardians 2010, p. 21). The petitioner states that climate 
change effects are being tracked in New Mexico, and temperatures are 
warming at a rate comparable to projections for the next century with 
continued increases of greenhouse gases (WildEarth Guardians 2010, p. 
20, citing Enquist and Gori 2008).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    In reference to the petitioner's claim concerning impacts from 
climate change, the factual information presented appears plausible. 
The petitioner does not cite any information or publications in support 
of the claim that there is a substantiated relationship between climate 
change and the persistence of Aztec gilia. At a global or regional 
scale, the Service acknowledges that climate change could result in 
rising temperatures and increased drought periods, based on models and 
research cited in the petitioner's references (IPCC 2007a, pp. 30, 48; 
Karl et al. 2009, pp. 129-134; NSC 2003, p. 38; Parmesan et al. 2000, 
entire; CCSP 2008, pp. 37-46). The Service also recognizes that 
vegetation shifts could occur in semi-arid ecosystems as a result of 
climate change, even though citations provided by the petitioner (Allen 
and Breshears 1998, entire) discuss forest-woodland ecotones where 
Aztec gilia does not occur. Enquist and Gori (2008, pp. 4-7) used 30-
year climate data from New Mexico to develop trend climatology maps 
applied to specific conservation areas. Their results indicate that the 
Colorado Plateau ecoregion in the far northwestern portion of New 
Mexico, where Aztec gilia does occur, had a climate exposure score in 
the 78th percentile, which is considered a

[[Page 24915]]

moderate to high ranking, meaning this ecoregion is more likely to have 
negative ecological impacts from warming (Enquist and Gori 2008, pp. 
20, 32).
    We acknowledge that current climate projections indicate that 
warming in the U.S. Southwest will persist, and may worsen (IPCC 2007b, 
p. 15; IPCC 2007c, p. 887). However, we find the information presented 
in the petition and readily available in our files on the subject of 
climate change to be insufficiently specific to Aztec gilia to be 
considered substantial. Additionally, no data are available to evaluate 
whether long-term weather patterns have negatively affected the habitat 
or population sizes of Aztec gilia. In fact, we are not aware of any 
Aztec gilia populations that have been extirpated since 1986, nor are 
we aware of monitoring data to compare population sizes to determine 
whether there has been a downward trend in the number of plants across 
the range of the species. Based on these results, we find that the 
information provided in the petition, as well as other information 
readily available in our files, does not present substantial scientific 
or commercial information indicating that the petitioned action may be 
warranted due to threats from climate change.
Narrow Range
    The petitioner states that because the Service routinely recognizes 
small population size and restricted range as increasing the likelihood 
of extinction, Aztec gilia should be considered particularly vulnerable 
(WildEarth Guardians 2010, p. 21). The petitioner asserts that the 
species' limited range indicates vulnerability to weather events, such 
as drought and storms, suggesting the Service should consider this 
plant's narrow range a threat to the taxon (WildEarth Guardians 2010, 
p. 21).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    No specific information was provided or is available in our files 
to indicate that Aztec gilia may be imperiled by its population size or 
narrow range. The petitioner provides information about generalized 
threats to other species with limited population size or small 
geographic ranges, but they are located on islands in the Pacific Ocean 
and not relevant to Aztec gilia. Therefore, we find that the 
information provided in the petition, as well as other information 
readily available in our files, does not present substantial scientific 
or commercial information indicating that the petitioned action may be 
warranted due to concerns about small population sizes and a narrow 
range.

Finding

    The petition does not present substantial information on whether 
oil and gas activities, surface mining, road construction and use, off-
road vehicle use, electric transmission line construction, domestic 
livestock grazing, human population growth, other BLM land uses, 
inadequate regulatory mechanisms, limited ability to reseed or 
transplant, climate change, small population size, or a restricted 
range may threaten Aztec gilia populations and their habitat. Even 
though Aztec gilia and its habitat may be exposed to the factors listed 
above, this does not necessarily mean that the species may be 
threatened by those factors. We found very few negative impacts to the 
plant resulting, or documented, from the potential threats cited in the 
petition or in our review of information readily available in our 
files. The petitioner cites generalized information about potential 
impacts that can occur due to these situations and stressors. Little 
information is presented in the petition regarding the magnitude of 
potential impacts on the species, or whether the potential impacts may 
have population-level effects. The loss of a few individuals does not 
necessarily mean that the species may be in danger of extinction. Our 
review of the readily available information indicates that the species 
appears to be maintaining its presence in all known locations 
throughout its range.
    In summary, we find no information to suggest that threats are 
acting on Aztec gilia such that the species may be in danger of 
extinction now or in the foreseeable future. On the basis of our 
determination under section 4(b)(3)(A) of the Act, we conclude that the 
petition does not present substantial scientific or commercial 
information to indicate that listing Aztec gilia under the Act as 
endangered or threatened may be warranted at this time.
    Although we will not review the status of the species at this time, 
we encourage interested parties to continue to gather data that will 
assist with the conservation of Aztec gilia. If you wish to provide 
information regarding Aztec gilia, you may submit your information or 
materials to the Field Supervisor/Listing Coordinator, New Mexico 
Ecological Services Field Office, U.S. Fish and Wildlife Service (see 
ADDRESSES section, above), at any time.

References Cited

    A complete list of all references cited in this finding is 
available upon request from the New Mexico Ecological Services Field 
Office (see ADDRESSES section, above).

Authors

    The primary authors of this rule are the staff members of the New 
Mexico Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: April 18, 2012.
Gregory E. Siekaniec,
Deputy Director, Fish and Wildlife Service.
[FR Doc. 2012-10049 Filed 4-25-12; 8:45 am]
BILLING CODE 4310-55-P