[Federal Register Volume 74, Number 123 (Monday, June 29, 2009)]
[Proposed Rules]
[Pages 30996-30999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15364]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2009-0040; 92220-1113-0000-C5]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist the Lost River Sucker (Deltistes luxatus) and the 
Shortnose Sucker (Chasmistes brevirostris)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the Lost River sucker (Deltistes 
luxatus) and the shortnose sucker (Chasmistes brevirostris) from the 
Federal List of Threatened and Endangered Wildlife (List) under the 
Endangered Species Act of 1973, as amended (Act). We find that the 
petition does not present substantial scientific or commercial 
information indicating that removing the Lost River sucker or shortnose 
sucker from the List may be warranted. Therefore, we will not initiate 
a status review for either species in response to this petition. We ask 
the public to submit to us any new information that becomes available 
concerning the status of, or threats to, the Lost River and shortnose 
suckers or their habitat at any time.

DATES: The finding announced in this document was made on June 29, 
2009. You may submit new information concerning this species for our 
consideration at any time.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov and http://www.fws.gov/klamathfallsfwo. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the Klamath 
Falls Fish and Wildlife Office, U.S. Fish and Wildlife Service, 1936 
California Avenue, Klamath Falls, OR 97601; telephone (541) 885-8481; 
facsimile (541) 885-7837. Please send any new information, materials, 
comments, or questions concerning this finding to the above street 
address.

FOR FURTHER INFORMATION CONTACT: Laurie Sada, Field Supervisor, U.S. 
Fish and Wildlife Service, Klamath Falls Fish and Wildlife Office (see 
ADDRESSES). Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at (800) 
877-8339, 24 hours a day, 7 days a week.

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 at the time we make the determination. 
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 the 
finding promptly in the Federal Register.
    This finding is based on the information included in and with the 
petition and information available in our files at the time of the 
petition review. Under section 4(b)(3)(A) of the Act and our 
regulations at 50 CFR 424.14(b), our review is limited to a 
determination of whether the information in the petition meets the 
``substantial scientific or commercial information'' threshold. Our 
standard for substantial information with regard to a 90-day petition 
finding is ``that

[[Page 30997]]

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)). In making this finding, we consider whether the petition: 
(1) Clearly indicates the administrative action recommended; (2) 
contains a detailed narrative justification for the recommended 
measure, describing, based on available information, past and present 
numbers and distribution of the species and any threats faced by the 
species; (3) provides information regarding the status of the species 
over all or a significant portion of its range; and (4) is accompanied 
by appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)). If we find 
that substantial information was presented, we are required to promptly 
commence a review of the status of the species and publish the results 
of that status review in a 12-month finding.
    The factors for listing, delisting, or reclassifying species are 
provided at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction; (2) recovery; or (3) a determination that 
that the original data used for classification of the species as 
endangered or threatened were in error.
    We received a petition dated January 13, 2009, from Mr. James L. 
Buchal requesting that the Lost River sucker and the shortnose sucker 
be removed from the List. The submission clearly identified itself as a 
petition and included the requisite identification information of the 
petitioner, as required in 50 CFR 424.14(a). This notice constitutes 
our 90-day finding on the petition.

Previous Federal Action

    On July 18, 1988, we listed the Lost River sucker and shortnose 
sucker as endangered under the Act (53 FR 27130). On December 1, 1994, 
we proposed critical habitat for Lost River sucker and shortnose sucker 
(59 FR 61744); that proposal was never finalized.
    A previous petition to delist the Lost River sucker and the 
shortnose sucker, dated September 12, 2001, was submitted by Mr. 
Richard A. Gierak, representing Interactive Citizens United. Three 
other similar petitions were treated as comments on Mr. Gierak's 
petition because they were considered equivalent to Mr. Gierak's 
petition. These three petitions were from Mr. Leo Bergeron, Mr. James 
L. Buchal, and Ms. Naomi Fletcher. On May 14, 2002, the Service 
published a 90-day finding stating that the petitions to delist the 
Lost River and shortnose suckers did not present substantial scientific 
or commercial information indicating that delisting the suckers may be 
warranted (67 FR 34422). On June 12, 2002, Walt Moden, Merle Carpenter, 
Charles Whitlatch, John Blair, Tiffany Bladock, and Dale Cross filed a 
complaint in Federal District Court alleging that our initial finding 
on the petition to delist the Lost River and shortnose suckers was 
arbitrary and capricious and violated the Act (Moden v. U.S. Fish and 
Wildlife Service, 281 F. Supp 2d 1193 (D. Or 2003)). On September 3, 
2003, the court ruled that our finding was arbitrary and capricious 
because it reached unexplained conclusions not supported by the 
administrative record. The court remanded the 90-day finding and 
ordered us to either reissue the finding with further explanation or 
proceed to a status review. Consistent with the court's order, the 
Service made a new finding, clarifying our analysis as well as 
addressing additional comments made by the court and the petitioners. 
The new 90-day finding was published on July 21, 2004, stating again 
that we found that the petition did not present substantial information 
that delisting the Lost River and shortnose suckers may be warranted 
(69 FR 43554). That Federal Register notice also initiated 5-year 
status reviews of the Lost River and shortnose suckers under section 
4(c)(2)(A) of the Act to consider any new information that had become 
available. The 5-year reviews for the two suckers were completed and 
signed on July 19, 2007. The review for the Lost River sucker 
recommended downlisting the species from endangered to threatened, and 
the review for the shortnose sucker recommended that the species remain 
classified as endangered.
    Shortly before the 5-year reviews for the two suckers were 
published in July, 2007, Walt Moden, Merle Carpenter, Charles 
Whitlatch, and John Blair filed suit in Federal District Court seeking 
to have the reviews completed ``by a date certain'' (Moden et al. v. 
U.S. Fish and Wildlife Service, Case No. 07-799, D. Or.). The court 
dismissed that case after publication of the reviews. In a lawsuit 
filed on February 21, 2008, the same plaintiffs challenged the adequacy 
of the two sucker reviews (Moden et al. v. U.S. Fish and Wildlife 
Service, Case No. 08-214, D. Or.), and sought to have them set aside. 
The Service moved to dismiss the complaint. On October 27, 2008, the 
court dismissed the plaintiffs' complaint, holding that 5-year reviews 
do not constitute final agency action subject to judicial review.

Species Information

General Biology
    Lost River sucker. Lost River suckers are large fish (up to 1 meter 
(m) long and 4.5 kilograms (kg) in weight) that are distinguished by 
their elongate body and sub-terminal mouth with a deeply notched lower 
lip. They have dark brown to black backs and brassy sides that fade to 
yellow or white on the belly. They are native to the Lost River and 
upper Klamath River systems in Oregon and California where they have 
adapted to lake living (Moyle 2002, p. 199).
    Adult and juvenile Lost River suckers live in lakes where they feed 
on benthic organisms and material. While the fish can be found 
throughout the reservoirs they inhabit, they appear to prefer 
shorelines with emergent vegetation that can provide cover from 
predators and invertebrate food (Moyle 2002, pp. 199-200).
    Lost River suckers grow rapidly in their first 5 to 6 years, 
reaching sexual maturity sometime between 5 and 14 years of age, with 
most maturing at 9 years (Buettner and Scoppettone 1990, p. 35). The 
majority of Lost River sucker spawning occurs from late February to 
early May in the larger tributaries of inhabited lakes. River spawning 
habitat is riffles or runs with gravel or cobble substrate, moderate 
flows, and depths of 21-128 centimeters (cm). Some Lost River suckers 
have been noted to spawn in lakes, particularly at springs occurring 
along the shorelines. Females are highly fecund (102,000-235,000 eggs 
each) and spawn with numerous males. A Lost River sucker can spawn 
multiple times during its life. It is unknown whether an individual 
fish will spawn multiple times in a single year or an individual will 
spawn every year (NRC 2004, p. 196).
    Shortnose sucker. Shortnose suckers are distinguished by their 
large heads with oblique, terminal mouths with thin but fleshy lips. 
The lower lips are deeply notched. They are dark on their back and 
sides and silvery or white on the belly. They can grow to about 50 cm, 
but growth is variable among individuals. Shortnose suckers have been 
recorded to live as long as 33 years (Moyle 2002, p. 203).
    Adult and juvenile shortnose suckers prefer shallow, turbid, and 
highly productive lakes that are cool, but not cold, in summer 
(generally 15 to 25 [deg]C), have adequate dissolved oxygen (DO) (above 
4 milligrams per liter (mg/l)), and

[[Page 30998]]

are moderately alkaline (Moyle 2002, p. 203).
    Shortnose suckers grow rapidly in their first 5 years, reaching 
sexual maturity sometime between years 4 and 6. The majority of 
shortnose sucker spawning occurs from early April to early May in the 
larger tributaries of inhabited lakes. River spawning habitat is 
riffles or runs with gravel or cobble substrate, moderate flows, and 
depths of 11 to 130 cm. Historically, shortnose suckers have been noted 
to spawn in lakes, particularly at springs occurring along the 
shorelines (Moyle 2002, p. 204), although currently few shortnose 
suckers spawn along shorelines (NRC 2004, p. 194). A shortnose sucker 
can spawn multiple times during its life. It is unknown whether an 
individual fish will spawn multiple times in a single year or an 
individual will spawn every year (NRC 2004, p. 196).
Distribution
    At the time of listing, the Lost River sucker and the shortnose 
sucker were reported from Upper Klamath Lake and its tributaries 
(Klamath County, Oregon); from the Lost River (Klamath County, Oregon, 
and Modoc and Siskiyou Counties, California) and Clear Lake (Modoc 
County, California); from the Klamath River above Keno (Klamath County, 
Oregon); and in one or more of the Klamath River reservoirs below Keno 
(Klamath County, Oregon, and Siskiyou County, California) (53 FR 
27130). The known geographic range of these suckers has not 
substantially changed since listing.
    Only one previously unreported Lost River sucker population has 
been found since listing. This population of a few hundred adults 
occurs in the Tule Lake sumps at the terminus of the Lost River 
(Siskiyou County, California) (Scoppettone et al. 1995, p. 37). Two 
previously unreported shortnose sucker populations have been found 
since listing. First, a population of a few hundred adults occurs in 
the Tule Lake sumps at the terminus of the Lost River (Siskiyou County, 
California) (Scoppettone et al. 1995, p. 37). Second, shortnose suckers 
are now known to occur in Gerber Reservoir (Klamath County Oregon), an 
area which was proposed as critical habitat in 1994 (59 FR 61744). New 
genetics information casts some doubt on whether these fish in Gerber 
Reservoir and Clear Lake are actually shortnose suckers (ISRP in litt. 
2005, pp. 19-21; Tranah and May 2006, p. 312). Until that information 
can be further evaluated, we continue to assume that these fish are 
shortnose suckers.

Evaluation of the Petition

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for adding species to or removing 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) Present or threatened destruction, 
modification, or curtailment of habitat or range; (B) overutilization 
for commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) inadequacy of existing regulatory mechanisms; 
or (E) other natural or manmade factors affecting its continued 
existence. In making this finding, we evaluated information presented 
in the petition, its supporting information, and other information 
available in our files in the context of the five factors listed above 
to determine whether the petition presented substantial information 
indicating that delisting the species under the Act may be warranted.
    The petitioner requests that we remove the Lost River and shortnose 
suckers from the List. The information the petitioner cites to support 
his claim included: (1) The completed 5-year reviews (incorporated by 
reference); (2) comments of Dave Vogel, Natural Resource Scientists, 
Inc., for the 5-Year Status Review on the Endangered Lost River and 
Shortnose Suckers Independent Scientific Review Panel (incorporated by 
reference and included with the petition); (3) the administrative 
records for the status reviews (incorporated by reference); (4) the 
biological opinions on the Klamath Project operations (incorporated by 
reference); and (5) 2003 court proceedings and administrative records 
(incorporated by reference). Documents included in items 2-5 listed 
above were available in Service files at the time we conducted the 5-
year reviews.
    The petition relies on Mr. Vogel's document and other information 
available in Service files at the time we conducted the 5-year reviews. 
We considered this information in the course of the 5-year review 
analysis. The petition also relies on the 5-year reviews themselves, 
which recommend that neither the Lost River nor the shortnose sucker be 
delisted at this time. The 5-year review did recommend that the Lost 
River sucker be downlisted from endangered to threatened. However, the 
petition at issue here sought only complete delisting. It did not 
request downlisting, therefore the petitioned action for the purposes 
of section 4(b)(3)(A) of the Act is limited to the delisting of the two 
species. The recommendations contained in the 5-year reviews are based 
on an analysis of the five factors described in section 4(a)(1) of the 
Act. The petition does not include any discussion of how the 5-year 
reviews may be in error, nor does the petition provide any new 
information regarding the status of either species over all or a 
significant portion of their respective ranges.
    The 2008 biological opinion for the effects of the Klamath Project 
on Lost River and shortnose suckers incorporated some new information 
regarding water quality and habitat conditions in Upper Klamath Lake 
that has become available since the 5-year reviews were completed in 
2007. In that biological opinion, the Service concluded that lake 
levels in Upper Klamath Lake, as affected by Klamath Project 
operations, did not have a measurable effect on water quality. The 
Service found that the habitat conditions in Upper Klamath Lake had 
improved as a result of restoration efforts in the Upper Klamath Lake 
watershed, especially at the mouth of the Williamson River. However, 
the Service's analysis concluded that the Lost River and shortnose 
suckers in Upper Klamath Lake were still experiencing limited 
recruitment and adult survival rates. Therefore, the new information 
incorporated in the 2008 biological opinion does not present 
substantial information or analyses that are contrary to the 
conclusions reached in the 5-year reviews for each species (e.g., a 
recommendation to downlist to threatened the Lost River sucker and no 
status change for the shortnose sucker).
    Therefore, we find the petition and information readily available 
in our files does not present substantial information indicating that 
delisting the Lost River sucker or shortnose sucker across all or a 
significant portion of their ranges may be warranted at this time due 
to one or more of the five factors described in section 4(a)(1) of the 
Act.

Finding

    We have reviewed the petition and supporting information provided 
with the petition under 50 CFR 424.14(b)(2) and the Act. Our review 
indicates that the fundamental argument for delisting presented in the 
petition is based on: (1) The completed 5-year reviews (incorporated by 
--Year Status Review on the Endangered Lost River and Shortnose Suckers 
Independent Scientific Review Panel (incorporated by reference and 
included with the petition); (3) the administrative records for the 
status reviews (incorporated by

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reference); (4) the biological opinions on the Klamath Project 
operations (incorporated by reference); and (5) 2003 court proceedings 
and administrative records (incorporated by reference).
    The 5-year review for each species analyzed all scientific and 
commercial information available at the time, including the documents 
listed in items 2-5 above. The recommendations of the Service based on 
these analyses was that the Lost River sucker be downlisted from 
endangered to threatened and that the shortnose sucker remain listed as 
endangered. The petitioner claims that ``the original listing was a 
mistake, and these fish are not experiencing any risk of extinction 
sufficient to invoke the Endangered Species Act'' (Buchal 2009, p. 2). 
However, the petitioner does not provide any additional substantive 
discussion, data, citation, or other information or rationale to 
explain how the documents provided and incorporated by reference 
suggest that the listing was in error or that the Lost River sucker or 
shortnose sucker no longer meets the definition of endangered or the 
definition of threatened and therefore, should be removed from the 
List. The 2008 biological opinion on the Klamath Project operations 
incorporated new information regarding improved habitat conditions in 
Upper Klamath Lake. However, the biological opinion concluded that the 
Lost River and shortnose suckers were still experiencing limited 
recruitment and adult survival rates. This new information does not 
present substantial information or analyses that are contrary to the 
conclusions reached in the 5-year review for each species (e.g., 
recommending downlisting to threatened for the Lost River sucker and no 
status change for the shortnose sucker).
    Therefore, we find that the petition and available information 
readily available in our files do not present substantial information 
indicating that delisting the Lost River sucker or the shortnose sucker 
across all or a significant portion of their ranges may be warranted at 
this time. We do, however, intend to develop a proposed rule to 
downlist the Lost River sucker to threatened, pursuant to the 
recommendation in the 5-year review, once our limited resources and 
competing priorities allow. We encourage interested parties to continue 
to gather and provide data that will assist with the conservation of 
the Lost River sucker and shortnose sucker.

References Cited

    A complete list of all references cited in this document is 
available, upon request, from the Klamath Falls Fish and Wildlife 
Office (see ADDRESSES).

Author

    The primary authors of this notice are staff members of Klamath 
Falls Fish and Wildlife Office (see ADDRESSES).

Authority

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

    Dated: June 18, 2009.
Marvin E. Moriarty,
Acting Director, Fish and Wildlife Service.
[FR Doc. E9-15364 Filed 6-26-09; 8:45 am]
BILLING CODE 4310-55-P