U.S. FISH AND WILDLIFE SERVICE
DIVISION OF ENDANGERED SPECIES

(Adapted from the Federal Register for Friday, February 4, 1994)
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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AB73

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

AGENCY: Fish and Wildlife Service, Interior.

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

EFFECTIVE DATE: March 7, 1994

SUPPLEMENTARY INFORMATION:

Background

Chorizanthe pungens Benth. var. hartwegiana Reveal & Hardham, Chorizanthe
robusta Parry var. hartwegii (Benth. in A. DC), and Erysimum tetetifolium
Eastwood are endemic to sandstone and mudstone deposits in the Santa Cruz
Mountains in Santa Cruz County, California. Chorizanthe pungens Benth var.
pungens and Chorizanthe robusta Parry var. robusta are endemic to sandy
soils of coastal habitats in southern Santa Cruz and northern Monterey
Counties.

The Santa Cruz Mountains are a relatively young range composed of igneous
and metamorphic rocks overlain by thick layers of sedimentary material
uplifted from the ocean floor and ancient shoreline zone (Caughman and
Ginsberg 1987). These ancient marine terraces persist as pockets of
sandstones and limestones that are geologically distinct from the volcanic
origins of the range. Soils that form from these sandstone and limestone
deposits tend to be coarse and, at least surficially, lose soil moisture
rapidly. The more mesic slopes of the Santa Cruz Mountains are covered
primarily by redwood forest (Zinke 1988) and mixed evergreen forest (Sawyer
et al. 1988).

In contrast, the drier pockets of sandstone and limestone, referred to as
the "Ben Lomond sandhills" (Thomas 1961), support two unique communities --
maritime coast range ponderosa pine forest and northern maritime chaparral
(Griffin 1964, Holland 1986). The ponderosa pine forest, locally referred
to as "ponderosa pine sandhill" or "ponderosa pine sand parkland"
(California Native Plant Society 1986, Marangio and Morgan 1987), consists
of an open park-like forest of scattered ponderosa pine (Pinus ponderosa)
with knobcone pine (Pinus attenuata), coast live oak (Quercus agrifolia),
and at a few sites, the federally endangered Santa Cruz cypress (Cupressus
abramsii). These stands intergrade with another unique community, northern
maritime chaparral, locally referred to as silver-leaf manzanita mixed
chaparral (Marangio 1985, Marangio and Morgan 1987), and are dominated by
the endemic silver-leaved manzanita (Arctostaphylos silvicola).

As uplift of the Santa Cruz Mountains proceeded, some of the raised marine
terraces of sandstone and limestone were buried beneath layers of
sedimentary material deposited by flowing water. Pockets of this alluvial
material, referred to as Santa Cruz mudstone, persisted during this process
of mountain uplifting and alluvial movement. In the Scotts Valley area,
mudstone outcrops support annual grasses and herbaceous species. These
communities were referred to as annual grasslands and wildflower fields by
Holland (1986).

Discussion of the Four Species

In California, the spineflower genus (Chorizanthe) in the buckwheat family
(Polygonaceae) comprises species of wiry annual herbs that inhabit dry
sandy soils along the coast and inland. Because of the patchy and limited
distribution of such soils, many species of Chorizanthe tend to be highly
localized in their distribution.

One subsection of the genus referred to as Pungentes consists of seven
species distinguished by the following features: the inner and outer tepals
(petal-like sepals) are of equal length and are entire or lobed but not
fringed, filaments are free, involucres (whorl of bracts subtending the
flowers) are 6-toothed with the alternating three shorter and the anterior
one slightly long-awned, involucral margins are not continuously
membranaceous across the sinuses, the number of stamens are variable (3-9),
and plants are decumbent to erect with spreading pubescence and are
distributed mainly on or near the coast from Santa Barbara County northward
to Mendocino (Reveal and Hardham 1989).

Although three of the seven species in the section Pungentes are still
thought to be common, the remaining four species are becoming increasingly
rare. Two of these species (Chorizanthe howellii and C. valida) were listed
as endangered on June 22, 1992 (57 FR 27848). The remaining two species, C.
pungens and C. robusta, inclusive of their varieties, are subjects of this
rule.

Chorizanthe pungens was first described by George Bentham in 1836 based on
a specimen collected in Monterey. This taxon was recognized by George
Goodman in 1934 as the type species in describing the Pungentes section of
the genus. At that time, Goodman also recognized C. pungens var. hartwegii,
previously described and identified as C. douglasii var. hartwegii by
Bentham in 1856. It was named after Karl Hartweg who collected the type
from "dry mountain pastures near Santa Cruz" in 1847 (Reveal and Hardham
1989).

Chorizanthe pungens var. hartwegiana was distinguished from C. pungens var.
pungens by James Reveal and Clare Hardham (1989) after they noticed a
difference between the coastal form and an inland form found "in the Ben
Lomond sand hills area." The name Chorizanthe pungens var. pungens was
retained to represent the coastal form of the plant. Reveal and Hardham
noted that the type for C. pungens var. hartwegiana was dissimilar to the
plant that was called C. pungens var. hartwegii.

The recent article describing Chorizanthe (Reveal and Hardham 1989) treats
C. pungens var. pungens and C. pungens var. hartwegiana as distinct
varieties. Though Hickman (1993) did not treat Chorizanthe pungens var.
hartwegiana separately in The Jepson Manual, he did state that plants with
"more erect petals with pink to purple involucral margins have been called
var. hartwegiana Rev. & Hardham." For the purposes of this final rule, the
Service lists C. pungens var. pungens and C. pungens var. hartwegiana
separately because the former variety qualifies for threatened status and
the latter qualifies for endangered status under the Act. Even if the
conservative Hickman (1993) treatment were used, C. pungens (inclusive of
vars. pungens and hartwegiana) faces the same threats as described under
the section entitled "Summary of Factors Affecting the Species" and would
qualify for listing under the Act.

Chorizanthe robusta was first described by Charles Parry in 1889 based on a
collection he made 6 years earlier "north of Aptos along Monterey Bay"
(Parry 1889). Willis Jepson considered it to be a variety of C. pungens and
thus combined the taxon under the name C. pungens var. robusta in his Flora
of California in 1914 (Jepson 1914). In their revision of the genus in
1989, Reveal and Hardham (1989) recognized Parry's treatment and retained
the taxon as C. robusta. Although they placed in this synonymy the type of
C. pungens var. hartwegii, Reveal and Hardham noted that the definition of
the taxon was still not settled with their review.

Concurrent with the publication of the Reveal and Hardham revision, the
first collection in over 50 years was made of the inland form that matched
Hartweg's original collection made in 1847. Reveal was therefore able to
reconfirm its affinity with Chorizanthe robusta, while recognizing the
distinctness of this taxon as a variety. Reveal, along with local botanist
Randall Morgan, published the combination C. robusta var. hartwegii (Reveal
and Morgan 1989), inclusive of the type of C. pungens var. hartwegii.

The recent article describing Chorizanthe robusta var. hartwegii (Reveal
and Morgan 1989) treats C. robusta var. robusta and C. robusta var.
hartwegii as distinct varieties. Though Hickman (1993) did not treat C.
robusta var. hartwegii separately in The Jepson Manual, he did state that
plants with "more erect petals with pink involucral margins have been
called var. hartwegii (Benth.) Rev. & R. Morgan." For the purposes of this
listing, the Service adds the entire species of C. robusta (inclusive of C.
robusta var. hartwegii and C. robusta var. robusta) to the List of
Endangered and Threatened Wildlife and Plants.

During the Service's review of a petition to list Chorizanthe robusta var.
hartwegii, Dr. John Thomas questioned the taxonomic validity of Chorizanthe
robusta var. hartwegii (John Thomas, Stanford University, in litt., 1990).
To address these concerns, the Service reviewed specimens of Chorizanthe
robusta var. hartwegii and other closely related taxa in the Pungentes
subsection of the genus with plant taxonomists at the University of
California. The Service's review indicates that specimens ascribed to C.
pungens and C. robusta have five morphologically recognizable phases that
correspond to ecological and geographical patterns. Four of these five
phases generally correspond to C. pungens var. pungens, C. pungens var.
hartwegiana, C. robusta var. robusta, and C. robusta var. hartwegii. The
fifth phase consists of specimens that were identified as C. robusta or C.
pungens (Ertter 1990). This final rule, by addressing the subject four
varieties of Chorizanthe, includes all five phases reviewed.

Chorizanthe pungens var. pungens and Chorizanthe robusta var. robusta are
endemic to sandy soils of coastal habitats in southern Santa Cruz and
northern Monterey Counties. The inner rim of Monterey Bay is characterized
by broad, sandy beaches backed by an extensive dune formation. Just inland
from the immediate coast, maritime chaparral occupies areas with
well-drained soils. Coastal dune and coastal scrub communities exist along
the inner rim of Monterey Bay, but portions were affected by habitat
modification or destruction.

Chorizanthe pungens var. pungens (Monterey spineflower) has white (rarely
pinkish) scarious margins on the involucral lobes and a prostrate to
slightly ascending habit that distinguish it from Chorizanthe pungens var.
hartwegiana. The aggregate of flowers (heads) tend to be small (less than 1
centimeter (cm) (0.4 inches (in)) in diameter) and either distinctly or
indistinctly aggregate. The plant is found scattered on sandy soils within
coastal dune, coastal scrub, grassland, maritime chaparral, and oak
woodland communities along and adjacent to the coast of southern Santa Cruz
and northern Monterey Counties and inland to the coastal plain of Salinas
Valley. Historically, the plant ranged along the coast from southern Santa
Cruz County south to northern San Luis Obispo County and from Monterey
inland to the Salinas Valley. Only one collection dating from 1842 was made
from northern San Luis Obispo County; however, in recent years it was not
collected south of Monterey Peninsula (Reveal and Hardham 1989).

Along the immediate coast, Chorizanthe pungens var. pungens was documented
at Manresa State Beach and the dunes near Marina. The plant probably was
extirpated from a number of historical locations in the Salinas Valley,
primarily due to conversion of the original grasslands and valley oak
woodlands to agricultural crops (Reveal and Hardham 1989). Significant
populations of Chorizanthe pungens var. pungens, representing upwards of 70
percent of the range of the plant, were recently documented from Fort Ord
(Army Corps of Engineers 1992). These surveys indicated that within
grassland communities the plant occurs along roadsides, in firebreaks, and
in other disturbed sites. In oak woodland, chaparral, and scrub
communities, the plants occur in sandy openings between shrubs. In older
stands with a high cover of shrubs, the plant is restricted to roadsides
and firebreaks that bisect these communities. The highest densities of C.
pungens var. pungens are located in the central portion of the firing
range, where disturbance is the most frequent. Although studies were not
conducted on factors that determine the pattern of distribution and the
densities of C. pungens var. pungens on Fort Ord, a correlation exists
between open conditions resulting from activities that disturb habitat and
high densities of C. pungens var. pungens. Prior to onset of human use of
this area, this species was possibly restricted to openings created by
wildfires within these communities.

Chorizanthe robusta (robust spineflower) is comprised of two varieties: C.
robusta var. robusta and C. robusta var. hartwegii. A description of the
species is broken out below by variety.

Chorizanthe robusta var. robusta has thin white to pinkish scarious margins
along the basal portions of the teeth and an erect to spreading or
prostrate habit. The heads are large (1.5 to 2 cm (0.6 to 0.8 in) in
diameter) and distinctly aggregate. The plant once ranged from Alameda to
Monterey Counties, but is currently known only from sandy and gravelly
soils along and adjacent to the coast of southern Santa Cruz and northern
Monterey Counties. Many of the areas from which collections were made in
Alameda and San Mateo Counties were urbanized, and no new collections were
made from there or from Monterey County for 30 years (Ertter 1990). As with
C. pungens var. pungens, the coastal dune and scrub communities were
affected by recreational use, urban development, and military activities,
and the coastal plain vegetation of the Salinas Valley was converted to
agricultural crops. The only known extant populations occur northeast of
the city of Santa Cruz on property recently acquired by the city from the
University of California and near Sunset and Manresa State Beaches,
approximately 12 miles away. The total number of individuals of the plant
was estimated to be less than 7,000 in 1990.

Specimens collected from certain populations of Chorizanthe in the vicinity
of Sunset State Beach are "comparable to Chorizanthe pungens" according to
Ertter (1990). The Service believes that these populations are best
assigned to Chorizanthe pungens var. pungens.

Chorizanthe robusta var. hartwegii has rose-pink involucral margins
confined to the basal portion of the teeth and an erect habit. The heads
are medium in size (1 to 1.5 cm (0.4 to 0.6 in) in diameter) and distinctly
aggregate. The plant is endemic to Purisima sandstone and Santa Cruz
mudstone in Scotts Valley in the Santa Cruz Mountains. Where C. robusta
var. hartwegii occurs on Purisima sandstone, the bedrock is overlain with a
thin soil layer that supports a meadow community comprised of herbs and
low-growing grasses. The presence of certain associated species, such as
toad rush (Juncus bufonis), sand pigmyweed (Crassula erecta), mosses, and
lichens, suggest a high seasonal moisture content. Where the plant occurs
on Santa Cruz mudstone, the bedrock is variously mixed with scree or a thin
soil layer that also supports a meadow community of herbs and grasses,
though of somewhat different composition than those on Purisima sandstone,
and with a lower frequency of toadrush, pigmyweed, and lichens (Habitat
Restoration Group 1992).

The only known extant populations of Chorizanthe robusta var. hartwegii
occur in Scotts Valley in the Santa Cruz Mountains north of the city of
Santa Cruz. The plant occurs primarily on pockets of Santa Cruz mudstones
and Purisima sandstones and is associated with annual grasslands and
wildflower fields (Reveal and Morgan 1989). These islands of unique
substrates are host to a number of rare plants. Three populations of the
plant, each consisting of numerous small colonies, are scattered over an
area 1 mile in diameter on three parcels in private ownership. In 1989,
shortly after the taxon was rediscovered, the total number of individuals
was estimated to be approximately 6,000 (California Natural Diversity Data
Base (CNDDB) 1990). As a result of two proposals for development that were
pending at the time, additional surveys were conducted during the next few
years. Results of 1992 surveys were that the two populations on land
proposed for a development named Glenwood Estates totalled between 30,000
and 100,000 individuals (Habitat Restoration Group 1992). The numbers of
this annual plant are expected to fluctuate from year to year, depending on
climatic conditions.

Chorizanthe pungens var. hartwegiana (Ben Lomond spineflower) has dark
pinkish to purple scarious margins on the involucral lobes and a slightly
ascending to erect habit. The heads are medium in size (1 to 1.5 cm (0.4 to
0.6 in) in diameter) and distinctly aggregate. The plant is found on sandy
soils that are the basis for the Ben Lomond sandhills communities in the
Santa Cruz Mountains, mostly on privately owned land. C. pungens var.
hartwegiana is confined to outcrops of sandstone soils in the Santa Cruz
Mountains from Big Basin State Park to the Felton area in the Santa Cruz
Mountains. These sandstone soils support several unique plant communities,
including the ponderosa pine-dominated Ben Lomond sandhills. The majority
of occurrences of C. pungens var. hartwegiana are found on privately owned
lands within the area generally bounded by the communities of Ben Lomond,
Glenwood, Scotts Valley, and Felton.

Erysimum tetetifolium (Ben Lomond wallflower) was first collected at
Glenwood, Santa Cruz County, by Horace Davis in 1914. This plant was
described by Alice Eastwood in 1938 as E. filifolium, not realizing that
this combination was already applied to another plant (Eastwood 1938). It
was therefore renamed E. tetetifolium in the following year (Eastwood
1939). E. tetetifolium is a biennial, or occasionally an annual, plant of
the mustard family (Brassicaceae). Seedlings form a basal rosette of
leaves, which then wither as the main stem develops flowers clustered in a
terminal raceme. The flowers are a deep yellow with petals 1.3 to 2.5 cm
(0.5 to 1.0 in) long; the slender capsule reaches 10 cm (4.0 in) in length
and is covered with three-parted hairs. The leaves are simple and narrowly
linear, a characteristic that separates this plant from other wallflowers.

Erysimum tetetifolium is endemic to pockets of sandstone deposits in the
Santa Cruz Mountains and is presently known from only a dozen scattered
occurrences. These sandstone deposits support the unique ponderosa pine
sandhill community, and E. tetetifolium seems to prefer sites with loose,
uncompacted sand in openings between scattered chaparral shrubs.
Chorizanthe robusta var. robusta is found in close proximity with E.
tetetifolium at some locations. A dozen populations of E. tetetifolium
occur within the area generally bounded by the communities of Ben Lomond,
Glenwood, Scotts Valley, and Felton, with one outlying population occurring
in the Bonny Doon area, 5 miles west of Felton. One population occurs at
Quail Hollow Ranch, which is jointly owned by Santa Cruz County, The Nature
Conservancy, and the California Department of Fish and Game (CDFG). All
other populations are on privately owned lands.

Previous Federal Action

Federal government actions for one of these four plants began as a result
of section 12 of the Endangered Species Act of 1973, which directed the
Secretary of the Smithsonian Institution to prepare a report on those
plants considered to be endangered, threatened, or extinct. This report,
designated as House Document No. 94-51, was presented to Congress on
January 9, 1975. In the report, Erysimum tetetifolium was recommended for
threatened status. On July 1, 1975, the Service published a notice in the
Federal Register (40 FR 27823) of its acceptance of the report as a
petition within the context of section 4(c)(2) (now section 4(b)(3)(A)) of
the Act and of the Service's intention thereby to review the status of the
plant taxa named within.

The Service published an updated notice of review for plants on December
15, 1980 (45 FR 82480). This notice included Erysimum tetetifolium as a
category 1 candidate (species for which data in the Service's possession
are sufficient to support proposals for listing) and Chorizanthe pungens
var. pungens as a category 2 candidate (species for which data in the
Service's possession indicate listing may be appropriate, but for which
additional biological information is needed to support listing). In the
September 27, 1985, revised notice of review for plants (50 FR 39526), E.
tetetifolium was again included as a category 1 candidate, and C. pungens
var. pungens as a category 2 candidate. In the February 21, 1990 (55 FR
6184), notice of review for plants, E. tetetifolium was retained in
category 1 and Chorizanthe pungens var. pungens and Chorizanthe pungens
var. hartwegiana in category 2.

Section 4(b)(3)(B) of the Endangered Species Act, as amended in 1982,
requires the Secretary to make findings on certain pending petitions within
12 months of their receipt. Section 2(b)(1) of the 1982 amendments further
requires that all petitions pending on October 13, 1982, be treated as
newly submitted on that date. This was the case for Erysimum tetetifolium
because the 1975 Smithsonian report was accepted as a petition. In October
1983, 1984, 1985, 1986, 1987, 1988, 1989, and 1990, the Service found that
the petitioned listing of E. tetetifolium was warranted, but that the
listing of this species was precluded by other pending proposals of higher
priority.

On May 16, 1990, the Service received a petition from Steve McCabe,
president, and Randall Morgan of the Santa Cruz Chapter of the California
Native Plant Society to list Chorizanthe robusta var. hartwegii as
endangered. Based on a 90-day finding that the petition presented
substantial information indicating that the requested action may be
warranted (55 FR 46080), the Service initiated a status review of this
taxon. During that time the Service also reviewed the status of Chorizanthe
robusta var. robusta. This final rule constitutes the Service's final
finding that the listing of C. robusta, inclusive of var. robusta and var.
hartwegii, as endangered, is warranted, and that the listing of Erysimum
tetetifolium as endangered is warranted.

On October 24, 1991 (56 FR 55111), the Service published a proposal to list
Chorizanthe pungens var. hartwegiana, Chorizanthe pungens var. pungens,
Chorizanthe robusta var. hartwegii, Chorizanthe robusta var. robusta, and
Erysimum tetetifolium as endangered species. That proposal was based, in
large part, on the survey information, occurrence data, and information on
pending projects that would adversely affect the five plants. C. robusta
consisted of varieties hartwegii and robusta at the time of the publication
of the proposed rule. Because the two C. robusta varieties, hartwegii and
robusta, qualify for endangered status, this rule lists the entire species.
Hence this rule lists four plants, yet discusses each of the five varieties
separately. The Service now determines C. pungens var. hartwegiana, C.
robusta (inclusive of vars. hartwegii and robusta), and E. tetetifolium to
be endangered species, and C. pungens var. pungens to be a threatened
species, with the publication of this rule.

Summary of Comments and Recommendations

In the October 24, 1991, proposed rule (56 FR 55111) and associated
notifications, all interested parties were requested to submit factual
reports or information that might contribute to the development of a final
rule. A 60-day comment period closed on December 23, 1991. Appropriate
State agencies, county governments, Federal agencies, scientific
organizations, and other interested parties were contacted and requested to
comment. A request for a public hearing was received from Allan Butler of
APC International, Inc. On May 15, 1992, and again on May 26, 1992, the
Service published notices in the Federal Register (57 FR 20805 and 57 FR
21993) announcing the publication of the proposal, the public hearing, and
the reopening of the comment period until July 15, 1992. A notice
announcing the publication of the proposal and the public hearing was
published in the Santa Cruz Sentinel on May 18, 1992. The Service conducted
a hearing on June 4, 1992, at the Santa Cruz County Government Center in
Santa Cruz. Testimony was taken from 6 p.m. to 8 p.m. Twenty-one parties
presented testimony.

During the comment periods, the Service received written and oral comments
from 48 parties. CDFG, California Department of Parks and Recreation, The
Nature Conservancy, California Native Plant Society, National Audubon
Society, Sierra Club, Environmental Council of Santa Cruz County,
Southridge Watershed Association, and the Resource Defense Fund were some
of the 38 commenters expressing support for the listing proposal. Eight
commenters opposed the listing of Chorizanthe robusta var. hartwegii. The
city of Marina opposed the listing of Chorizanthe pungens var. pungens. Two
commenters, one of whom offered technical comments on the proposal, were
neutral. In addition, results of additional surveys for the plants (Army
Corps of Engineers 1992, Habitat Restoration Group 1992) were incorporated
into this final rule. Written comments and oral statements obtained during
the public hearing and comment periods are combined in the following
discussion. Opposing comments and other comments questioning the rule were
organized into specific issues. These issues and the Service's response to
each are summarized as follows:

Issue 1: Several commenters felt that there was insufficient scientific
evidence to list Chorizanthe robusta var. hartwegii. Others stated that the
Service used data that were skewed or selectively chosen to support the
listing of this plant; "relied on the expertise of an amateur botanist
whose opinion [is cited] without investigation of contrary opinions by,
arguably, more qualified professionals;" and did not utilize information
supplied by Dr. Thomas that challenged the appropriateness of listing C.
robusta var. hartwegii.

Service Response: In preparing the proposed rule, the Service utilized
information from botanical collections and observations that date from the
mid-1800s, as well as data that were submitted to the Service in response
to a request for information made to local and State agencies and other
interested parties. The Service therefore maintains that the best available
commercial and scientific information was utilized in preparation of the
proposed rule. No data were submitted to support the contention that the
Service skewed or selectively chose data to support the proposal. During
preparation of the proposal, the Service consulted with a number of
professional botanists, and other professional biologists commented during
the comment period. These botanists and biologists gave biological bases
that supported the listing of Chorizanthe robusta var. hartwegii. The
Service, therefore, believes that this determination to list the plant as
endangered under C. robusta is appropriate and is supported by the
botanical community.

Issue 2: Several commenters pointed out that the California Fish and Game
Commission rejected a proposal to State list Chorizanthe robusta var.
hartwegii, and it was, therefore, inappropriate for the Service to pursue
Federal listing due to the "doctrine of comity" (the informal and voluntary
recognition by courts of one jurisdiction of the laws and judicial decision
of another).

Service Response: The California Fish and Game Commission did not reject a
proposal to State list Chorizanthe robusta var. hartwegii, rather it
determined that not enough information was available to petition the plant
for State listing. The opinions of the California Fish and Game Commission
were not shared by CDFG, which supported the Federal listing at the public
hearing and in writing (Ken Berg, CDFG, pers. comm., 1992). The Act does
not require agreement among State agencies. Moreover, CDFG, in
collaboration with The Nature Conservancy and the California Native Plant
Society, supplied the Service with data, through the CNDDB (1990), that
supports Federal listing of the four plants.

Issue 3: A few commenters, citing Dr. John Thomas's opinions, stated that
Chorizanthe robusta var. hartwegii is not a distinct taxon. Others
contended that other botanical experts consulted by the Service "did not
reach a conclusion which would change the above view" and that their brief
reviews were not definitive and did not resolve the taxonomic questions
that were raised. One commenter stated that a thorough taxonomic revision
of the Pungentes subsection of the genus Chorizanthe was needed.

Service Response: The Service believes that the recognized authority for
the taxonomy of the buckwheat family, Dr. James Reveal, provided sufficient
data to support the taxonomic validity of Chorizanthe robusta var.
hartwegii. Moreover, other botanical experts consulted by the Service did
not provide any information that disputed the taxonomic validity of this
plant. The species C. robusta, inclusive of vars. robusta and hartwegii,
faces threats as described under the section entitled "Summary of Factors
Affecting the Species," hence even if the conservative Hickman (1993)
treatment were used as in The Jepson Manual, the entire species would
qualify for listing under the Act. The Service agrees that additional
taxonomic work on the Pungentes subsection of the genus Chorizanthe would
be desirable, but maintains that the existing treatment is sufficient to
proceed with the listing.

Issue 4: Several commenters contended that adequate regulatory mechanisms
are currently in place, through the California Environmental Quality Act
and the California Endangered Species Act, to protect Chorizanthe robusta
var. hartwegii.

Service Response: The only protection given to State-listed species is the
requirement that landowners give CDFG 10 days notice of any land use
change. The California Environmental Quality Act requires mitigation for
projects that adversely affect listed plants as well as those that qualify
for State listing; however, many mitigation attempts do not achieve the
goal of securing long-term protection for such plants (Howald 1992). The
California Environmental Quality Act process allowed the city of Scotts
Valley to make a statement of overriding considerations to approve the
Glenwood Development Company's project even though the project will
eliminate approximately two-thirds of the known habitat for Chorizanthe
robusta var. hartwegii (City of Scotts Valley 1992). Furthermore, CDFG was
unable to come to agreement with the Glenwood Development Company on
mitigation for impacts to the plant and compensation for unavoidable losses
(Brian Hunter, CDFG, in litt., 1993). The failure of existing regulatory
mechanisms to adequately protect the plant are further discussed under
Factor D in the "Summary of Factors Affecting the Species" section.

Issue 5: One commenter claimed that the Service has no jurisdiction over
Chorizanthe robusta var. hartwegii because it occurs on privately owned
lands, and the plant is neither in interstate commerce nor the subject of
an international treaty and, therefore, is exclusively under the
jurisdiction of the State.

Service Response: Section 4 of the Act directs the Service to evaluate
species for listing based on biological information only, not land
jurisdiction. The five factors on which the biological vulnerability of
species are evaluated are discussed in the "Summary of Factors Affecting
the Species" section. Land ownership is not a factor used to determine
whether or not listing is appropriate.

Issue 6: Two commenters stated that data concerning Chorizanthe robusta
var. hartwegii were obtained in violation of State trespass laws on private
land; therefore, such "illegal evidence" should be excluded from
consideration in the listing process.

Service Response: The "trespass" issue does not involve the Service, and
although the Service does not condone entering private land without
permission, it is charged with using the best commercially and
scientifically available information in preparation of a proposal.
Moreover, information concerning the rarity of Chorizanthe robusta var.
hartwegii, the threats to its continued existence, and information from
surveys on private land were made part of the public record in
environmental assessments that were prepared as required by the California
Environmental Quality Act (City of Scotts Valley 1989, Harding Lawson
Associates 1991).

Issue 7: Several commenters charged that the proposed rule for Chorizanthe
robusta var. hartwegii was promulgated merely to fulfill requirements of a
settlement resulting from the lawsuit filed against the Service by the
California Native Plant Society. They further contended that this deprived
Glenwood Development Company of its rights and is contrary to the intent
and language of the Endangered Species Act.

Service Response: The California Native Plant Society lawsuit settlement
requires the Service to propose for listing those plant taxa that were
identified as category 1 candidates for listing in the February 21, 1990,
notice of review (56 FR 58804). Of the five taxa included in the proposed
rule, only Erysimum tetetifolium was a category 1 candidate in the February
21, 1991, notice of review, and is the only one of the four taxa subject to
the requirements of the lawsuit settlement. However, Federal action on all
five taxa began prior to the settlement of the California Native Plant
Society lawsuit (see section on "Previous Federal Action"). As stated under
the Service Response to Issue 5 above, the Endangered Species Act directs
the Service to list species on the basis of biological vulnerability.

Issue 8: One commenter stated that the Service failed to publish the
proposed rule within 1 year of having received the petition, which
therefore failed to meet statutory time requirements, and requested that
the proposed rule be withdrawn.

Service Response: The Service endeavors to met statutory timeframes;
however, nothing in the statute suggests that the Service is required to
withdraw proposals because deadlines are missed.

Issue 9: One commenter stated that the Service failed to prepare
environmental assessments as required by the National Environmental Policy
Act.

Service Response: The Service is exempt from preparing environmental
assessments regarding the listing of species pursuant to the National
Environmental Policy Act for reasons outlined in the Federal Register on
October 25, 1983 (48 FR 49244). This is stated in the proposed rule and
this final rule under the section titled "National Environmental Policy
Act."

Issue 10: One commenter stated that Erysimum tetetifolium is a weed and
that he had "seen it in many places in the county" and on "all kinds of
roadbanks," presumably meaning that the species is more widespread than is
indicated in the proposed rule. He also felt that the public should be
encouraged to grow it as a garden plant, presumably to assist in
perpetuating the species.

Service Response: No information was submitted to the Service to
substantiate the locations of additional populations of Erysimum
tetetifolium. Since the time the proposal was published, no documentation
has been made of additional populations of the plant found by any botanists
that contribute to CNDDB (CNDDB 1993). The Service, therefore, maintains
that this decision is based on the best and most current information
available and that it is sufficient to warrant making a determination on
its status. With regard to the suggestion to cultivate E. tetetifolium as a
garden plant, the Service recognizes the value of maintaining cultivated
collections of rare species. Such collections, however, do not replace
protection for native ecosystems, which is the intent of the Endangered
Species Act.

Issue 11: Two agencies (CDFG and California Department of Parks and
Recreation) recommended that the Service list Chorizanthe pungens var.
pungens as threatened rather than endangered.

Service Response: Since publication of the proposal, the Service has
reviewed additional biological information, including surveys for
Chorizanthe pungens var. pungens recently conducted on Fort Ord by an
environmental consulting firm, Jones and Stokes Associates (Army Corps of
Engineers 1992). Substantial new populations were located on Fort Ord, but
the pending disposal of Fort Ord still places these populations at risk.
The Service therefore determined that threatened status for this plant is
appropriate.

Issue 12: Several commenters requested that the Service designate critical
habitat for Chorizanthe robusta var. hartwegii.

Service Response: Under section 4(a)(3)(A) of the Act, the Secretary must
designate critical habitat to the maximum extent prudent and determinable
at the time a species is determined to be endangered or threatened. In the
proposed rule, the Service found that determination of critical habitat was
not prudent for these species. As discussed under the "Critical Habitat"
section below, the Service finds that designation of critical habitat for
Chorizanthe robusta, inclusive of vars. robusta and hartwegii, is prudent
but not determinable at this time. For certain populations that would
likely not be imperiled by the threat of vandalism, collecting, or other
human activities, the Service will propose designation of critical habitat.

Issue 13: One commenter expressed concern that several specimens of
Chorizanthe collected by Yadon from Fort Ord, Monterey County, were not
discussed in the proposed rule. The specimens were originally annotated as
Chorizanthe robusta var. hartwegii by Dr. James Reveal.

Service Response: The specimens that were collected from Fort Ord were
among those that were reviewed by taxonomists at the University Herbarium
and the Jepson Herbarium at the University of California, Berkeley, prior
to preparation of the proposed rule (Ertter 1990). In their report, the
taxonomists indicated that the specimens belong in Chorizanthe douglasii
rather than Chorizanthe robusta. They cite the well-developed united
involucral margins, a feature that separates the subsection Legnota (which
includes Chorizanthe douglasii) from the seven other subsections of the
genus Chorizanthe (which includes the subsection Pungentes) that do not
have united involucral margins (Ertter 1990, Reveal and Hardham 1989). On
the basis of this taxonomic review, the Service concludes that no confirmed
collections of Chorizanthe robusta var. hartwegii exist from Fort Ord or
anywhere else in Monterey County. No additional discussion concerning the
specimens from Fort Ord has been included in the final rule.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information available, the
Service has determined that Chorizanthe pungens var. hartwegiana (Ben
Lomond spineflower), Chorizanthe robusta (inclusive of vars. hartwegii and
robusta) (robust spineflower), and Erysimum tetetifolium (Ben Lomond
wallflower) should be classified as endangered species, and Chorizanthe
pungens var. pungens (Monterey spineflower) should be classified as a
threatened species. Procedures found at section 4 of the Endangered Species
Act (16 U.S.C. 1531 et seq.) and regulations (50 CFR part 424) promulgated
to implement the listing provisions of the Act were followed. A species may
be determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1). These factors and their
application to Chorizanthe pungens Benth. var. hartwegiana Reveal & Hardham
(Ben Lomond spineflower), Chorizanthe pungens Benth. var. pungens (Monterey
spineflower), Chorizanthe robusta Parry (inclusive of var. hartwegii
(Benth. in A. DC) Reveal & Morgan and var. robusta) (robust spineflower),
and Erysimum tetetifolium Eastwood (Ben Lomond wallflower) are as follows:

A. The present or threatened destruction, modification, or curtailment of
its habitat or range. Three taxa (Chorizanthe pungens var. hartwegiana,
Chorizanthe robusta var. hartwegii, and Erysimum tetetifolium) are
restricted to sandstone and mudstone soils in the Santa Cruz Mountains. Two
taxa (Chorizanthe pungens var. pungens and Chorizanthe robusta var.
robusta) are found only on sandy soils of coastal and near coastal habitats
in southern Santa Cruz and northern Monterey Counties. These species and
their associated habitats are threatened by one or more of the following:
residential and golf course development, agricultural land conversion,
recreational use, sand mining, dune stabilization projects, and military
activities.

Sand quarrying resulted in the direct removal of Chorizanthe pungens var.
hartwegiana habitat, and a currently proposed expansion of operations at
Quail Hollow Quarry may eliminate additional populations. Residential
development on smaller parcels of privately owned lands also contributed to
the elimination of C. pungens var. hartwegiana and the fragmentation of the
remaining habitat. Protective management for sandhill parkland communities
will be developed for one parcel recently acquired by the State of
California.

In the 1870s, limestone quarries began operating in the Bonny Doon area of
the Santa Cruz Mountains, as well as in other locations around the county
(Caughman and Ginsberg 1987). In more recent years, sand quarrying replaced
limestone mining as a viable economic activity. At least half of the
habitat occupied by Chorizanthe pungens var. hartwegiana is on property
owned by sand and gravel companies. Operations at a number of quarries,
including Kaiser 1 and 2, Olympia, and Quail Hollow, have already
extirpated populations of Erysimum tetetifolium (Randall Morgan, botanist,
Soquel, California, pers. comm., 1990). Expanded operations are currently
proposed for Quail Hollow Quarry (John Gilchrist and Associates 1990,
Strelow 1993). One parcel (Quail Hollow Ranch), which was recently acquired
by Santa Cruz County and the State of California, supports a large
population of Chorizanthe pungens var. hartwegiana, as well as other unique
species of the sandhill parklands habitat. Management plans for Quail
Hollow Ranch are under development by Santa Cruz County, hence proposed
recreational facilities may affect populations of both C. pungens var.
hartwegiana and E. tetetifolium (County of Santa Cruz 1990). Another parcel
owned by the San Lorenzo Valley Water District also supports several of the
unique elements of the Ben Lomond sandhills habitat, including Chorizanthe
pungens var. hartwegiana. This parcel was badly damaged by off-road
vehicles despite efforts to fence off the area by the District. Small
populations of C. pungens var. hartwegiana are also known to occur at the
Bonny Doon Ecological Preserve, managed by The Nature Conservancy, and at
Big Basin and Henry Cowell State Parks. These parks, however, have not yet
developed management plans for C. pungens var. hartwegiana.

The remaining coastal dune and coastal scrub habitats that support
Chorizanthe pungens var. pungens were affected by industrial and
residential development, recreational use, and dune stabilization due to
the introduction of non-native species. Along the coast of the north side
of Monterey Peninsula, human and equestrian use threaten scattered
occurrences of Chorizanthe pungens var. pungens, and a development is
planned for a parcel owned by the Pebble Beach Corporation (Vern Yadon,
retired, Museum of Natural History, Pacific Grove, pers. comm., 1991).
Other small scattered occurrences within maritime chaparral habitat may
become affected by residential development and by a realignment of Highway
101.

Chorizanthe pungens var. pungens was probably extirpated from a number of
historical locations in the Salinas Valley, primarily due to conversion of
the original grassland and valley oak woodland habitat to agricultural
crops. One occurrence at Manzanita County Park near Prunedale currently is
not protected. A route realignment proposed for Highway 101 in northern
Monterey County could destroy scattered occurrences (R. Morgan, pers.
comm., 1991).

The Fort Ord Army Base probably supports the largest extant population of
Chorizanthe pungens var. pungens. In recent years, road development and
construction of an ammunition supply depot on the base eliminated some C.
pungens var. pungens habitat, and fragmented the remaining habitat. As
mitigation for recent construction, the Department of Defense, with the
assistance of the California Native Plant Society, established a series of
small preserves, ranging in size from 1 to 15 acres, for the purpose of
protecting rare species, including C. pungens var. pungens. The small size
of these preserves, however, is not likely to be sufficient to ensure
long-term protection for the plant. Just prior to publication of the
proposal to list the five taxa under discussion, the Department of Defense
announced intentions to close the base at Fort Ord. The impact that base
closure will have on C. pungens var. pungens is not known at this time but
will largely be determined by the intended uses of the land by the agencies
or entities to which the land will be transferred.

In southern Santa Cruz County, Chorizanthe pungens var. pungens is known to
occur at Sunset and Manresa State Beaches, and within the past few years,
scattered occurrences were found as far north as Day Valley (R. Morgan,
pers. comm., 1991). Populations at Sunset State Beach possibly were
inadvertently affected by trampling and the introduction of non-native
species during dune stabilization projects.

Populations of Chorizanthe robusta var. robusta in coastal dune and coastal
scrub habitats were affected by residential development, recreational use,
and the introduction of non-native species. Management plans for
Chorizanthe robusta var. robusta at Sunset State Beach are not yet
developed. Sunset State Beach has the largest known population, numbering
about 5,000 individuals in 1988 (CNDDB 1993). Smaller populations of a few
hundred each near Manresa State Beach and on property owned by the city of
Santa Cruz are not currently protected. The city will be developing a
management plan to manage the property as a "low impact" park and intends
to protect habitat for the plant (Ken Thomas, City of Santa Cruz, pers.
comm., 1993).

A patch of 300 individuals of Chorizanthe robusta var. robusta that was
reported in 1985 from Manresa State Beach could not be relocated in 1990
(CNDDB 1990). Efforts were started at Sunset State Beach to restore the
native dune species by removing the introduced non-native species (Ferreira
1989). If the presence of Chorizanthe robusta var. robusta is taken into
consideration in areas targeted for such restoration, impacts to the plant
may be avoided.

Virtually the entire range of Chorizanthe robusta var. hartwegii occurs on
three parcels, all in private ownership. Two parcels, totaling 282 acres,
are currently proposed for a residential development and golf course named
Glenwood Estates Development (City of Scotts Valley 1989). Surveys
indicated that suitable habitat for C. robusta var. hartwegii occupied 12
acres of the 282 acres of the two Glenwood Estates parcels, and 10 percent
of this suitable habitat was occupied by the C. robusta var. hartwegii
(Habitat Restoration Group 1992). One other 116-acre parcel was planned for
residential development, but the ownership was transferred to a software
development and marketing firm that intends to establish world headquarters
on the site. The firm indicated that the pending expansion of its global
headquarters would affect less than 20 percent of the 116-acre parcel (Pat
Welch, Borland Corporation, pers. comm., 1993). The firm expressed
intention to set aside habitat for C. robusta var. hartwegii, but since no
legal protection currently exists for any of the known populations of the
plant, C. robusta var. hartwegii is threatened with the direct destruction
of a portion of currently occupied habitat and with secondary impacts as
discussed under Factor E.

Historical and continuing threats to Erysimum tetetifolium include the
direct removal of habitat by sand quarrying and residential development.
Alteration of habitat may also be occurring in the form of increased canopy
density within the Ben Lomond sandhills as a result of fire suppression.
Currently, the only population that is potentially protected is on the
recently acquired Quail Hollow Ranch site; however, development of
recreational facilities is proposed for a portion of the ranch (County of
Santa Cruz 1990). The suppression of wildfires within the Santa Cruz
mountains caused the density of woodland within the pine sandhill community
to increase, which in turn may reduce the availability of suitable habitat
for the plant (California Native Plant Society 1986).

The largest population of Erysimum tetetifolium, located at the Quail
Hollow Quarry, contains about 75 percent of the total number of known
individuals of this species (approximately 5,400 individuals) (Bittman
1986). This population was already reduced in size by sand quarrying, and
ongoing quarrying will likely continue to reduce the size of the
population. A current proposal to expand mining operations at this quarry
would eliminate habitat supporting several hundred individuals of E.
tetetifolium, as well as an undetermined number of Chorizanthe pungens var.
hartwegiana (Strelow 1993). Of the remaining populations, none comprise
over 400 individuals, and about half total less than 100 individuals each
(Bittman 1986). Aside from the largest population, several of the smaller
populations were also reduced in size by quarrying, as well as by
development of private lots. Occurrences of the plant were repeatedly
vandalized in the Bonny Doon area (California Native Plant Society 1986),
apparently by landowners intent on developing their properties. Quail
Hollow Ranch, a site which supports less than 300 plants, was recently
acquired as a park through the joint efforts of The Nature Conservancy,
Santa Cruz County, and the State of California. However, management plans
developed for the county portion of Quail Hollow Ranch may include
development of recreational facilities, which may affect E. tetetifolium
(County of Santa Cruz 1990).

B. Overutilization for commercial, recreational, scientific, or educational
purposes. No evidence of collection for commercial, scientific,
recreational, or educational purposes exists; however, acts of vandalism
have impacted Erysimum tetetifolium and Chorizanthe pungens var.
hartwegiana. In addition, increased awareness of the need for protection of
these species could increase the threat of vandalism to these plants and
their habitats.

At least one population of Erysimum tetetifolium was destroyed by a private
landowner during and shortly after the plant was processed for endangered
status by CDFG in 1981 (CNDDB 1992). Other occurrences of vandalism of this
species were reported from a sand and gravel mine (Bittman 1986). A parcel
of land owned by the San Lorenzo Valley Water District that supports
several of the unique elements of the Ben Lomond sandhills habitat,
including Chorizanthe pungens var. hartwegiana, was badly damaged by
off-road vehicles despite efforts to fence off the area by the District.

C. Disease or predation. Two of three populations of Chorizanthe robusta
var. hartwegii were grazed by horses in Scotts Valley. No data exist to
substantiate whether grazing threatens this plant. No information exists
concerning the threat of disease or predation to the other three plants.

D. The inadequacy of existing regulatory mechanisms. Under the Native Plant
Protection Act (Division 2, Chapter 10, sec. 1900 et seq. of the Fish and
Game Code) and the California Endangered Species Act (Division 3, Chapter
1.5, sec. 2050 et seq.), the California Fish and Game Commission listed
Erysimum tetetifolium as endangered in 1981. Though both the Native Plant
Protection Act and the California Endangered Species Act prohibit the
"take" of State-listed plants (Chapter 10, sec. 1908, and Chapter 1.5, sec.
2080), State law does not protect the plants from taking via habitat
modification or land use change by the landowner. After CDFG notifies a
landowner that a State-listed plant grows on his or her property, State law
requires only that the landowner notify the agency "at least 10 days in
advance of changing the land use to allow salvage of such plant" (Chapter
10, sec. 1913). Although these State laws provide a measure of protection
to the species, these laws are not adequate to protect the species in all
cases. Numerous activities do not fall under the purview of this
legislation, such as certain projects proposed by the Federal government
and projects falling under State statutory exemptions. Where overriding
social and economic considerations can be demonstrated, these laws allow
project proposals to go forward, even in cases where the continued
existence of the species may be jeopardized or where adverse impacts are
not mitigated to the point of insignificance.

The California Environmental Quality Act requires that environmental
documents disclose the full scope of impacts anticipated to sensitive
resources within a project area. The initial documentation of a project in
Chorizanthe robusta var. hartwegii habitat failed to include adequate
information concerning the presence of and the potential impacts to this
plant. A lawsuit settlement required that additional surveys of occupied
and suitable but unoccupied habitat for the plant be completed (Jane
Haines, Environmental Law Services, in litt., 1992). However, the lawsuit
failed to specify that the information was to be used in redesigning the
project to provide adequate protection for the plant.

Part of the environmental review process under the California Environmental
Quality Act for projects that result in the loss of sites supporting these
plant species generally includes the development of mitigation plans. Such
plans may involve establishing long-term protection for certain sites by
designating them as "reserves," enhancing degraded sites to improve or
extend suitable habitat, transplanting affected species to an off-site
location, and/or creating artificial habitat. Proponents for the Glenwood
Estates Development proposed a mitigation plan that calls for establishing
reserves that would set aside 0.9 acre of habitat occupied by approximately
90 percent of the total number of Chorizanthe robusta var. hartwegii
individuals, as well as an additional 6 acres of suitable but unoccupied
habitat (APC International, Inc. 1992). Although the project proponents
have the intention of setting aside the largest concentrations, and
therefore the largest number of individuals of C. robusta var. hartwegii,
the distribution of this plant is already so restricted that any loss would
be considered biologically significant. A review of past mitigation
measures applied to other species similar to C. robusta var. hartwegii in
their very narrow distributions have indicated that such measures failed to
adequately effect long-term protection. Frequently cited reasons include
inadequate reserve size, inadequate buffer zones, and inappropriate
adjacent land uses that result in the disruption of ecological processes
affecting soil and water conditions and pollinator and seed disperser
populations (Howald 1992). Furthermore, areas that currently support
smaller concentrations of this plant or areas of suitable habitat that are
currently unoccupied by the plant would not be protected from habitat
alteration and would be lost for future recovery efforts.

Mitigation plans for State-listed species are typically formalized in a
Mitigation Agreement between CDFG and the project proponent. Although C.
robusta var. hartwegii is not currently State listed, CDFG attempted to
secure a Mitigation Agreement because of its concern over the effects of
the project to the plant. However, CDFG was not able to reach an agreement
with the Glenwood Development Company. CDFG believes that the reserves, as
delineated, will not be adequate to ensure long-term viability of the
resources targeted for protection. Furthermore, no compensation was offered
for the loss of resources that will not be avoided (Hunter, in litt.,
1993).

The city of Scotts Valley has regulatory authority over 90 percent of the
lands within the proposed project area. They approved the project
acknowledging that it would have unmitigable impacts to Chorizanthe robusta
var. hartwegii by issuing a statement of overriding considerations.
Although the California Environmental Quality Act process allows for such
approval, the goal of requiring mitigation that secures long-term
protection for plants that qualify for State listing has not been achieved.
The Santa Cruz County Planning Commission, which has regulatory authority
over the remaining 10 percent of the lands within the proposed project
area, recently rejected approval of the project. This decision, however, is
being appealed by the project proponent to the County Board of Supervisors.

E. Other natural or manmade factors affecting its continued existence. The
introduction of non-native species to coastal dunes for the purpose of sand
stabilization adversely affected native dune flora, probably including
Chorizanthe robusta var. robusta and Chorizanthe pungens var. pungens. Such
introduced species as European beach grass (Ammophila arenaria), sea-fig
(Carpobrotus ssp.), and iceplant (Mesembryanthemum ssp.) invaded dune
habitats and in many cases outcompeted the native flora. While public
agencies are now aware of the adverse impacts of introducing non-native
species, efforts to restore dune habitats with native species may also
result in further impacts to sensitive plants, if not done properly.

As currently proposed, the Glenwood Estates Development would destroy
numerous small colonies of Chorizanthe robusta var. hartwegii, but would
set aside several reserves for the densest concentrations of the plant.
These reserves would be left as small islands within the golf course
portion of the project. Grading of adjacent portions of the course may
alter surface and subsurface hydrologic processes of these remaining
reserves. In addition, the reserves may be affected by the application of
pesticides, herbicides, and fertilizers on the adjacent course. Application
of such chemicals may alter the balance of nutrients in the soil and may
affect the ability of C. robusta var. hartwegii to survive, either directly
or through competition with exotic species that may be favored by
application of these chemicals (Edmondson 1987; Carl Wishner, botanist,
pers. comm., 1993).

Typically, annuals and other monocarpic plants (individuals that die after
flowering and fruiting), such as the four plants that are the subject of
this final rule, are vulnerable to random fluctuations or variation
(stochasticity) in annual weather patterns and other environmental factors
(Huenneke et al. 1986). All four of the plants are restricted to habitats
of limited distribution within a small geographic range. All but
Chorizanthe pungens var. pungens are currently vulnerable to stochastic
extinction due to their small and isolated populations. Chorizanthe robusta
var. hartwegii and Chorizanthe robusta var. robusta are particularly
threatened by this factor as C. robusta var. hartwegii is found on Santa
Cruz mudstones and Purisima sandstones within a 1-mile diameter in Scotts
Valley in the Santa Cruz Mountains and C. robusta var. robusta is found in
only three locations over a 12-mile range in southern Santa Cruz County.

The Service has carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats faced
by these taxa in determining to make this rule final. Because three of the
four plants are threatened by one or more of the following factors -- urban
and agricultural development, recreational use, sand mining, dune
stabilization projects, or extinction from stochastic events -- the
preferred action is to list Chorizanthe pungens var. hartwegiana,
Chorizanthe robusta (inclusive of vars. hartwegii and robusta), and
Erysimum tetetifolium as endangered. Other alternatives to this action were
considered but not preferred because not listing these species at all or
listing these species as threatened would not provide adequate protection
and would not be in keeping with the purposes of the Act.

Chorizanthe pungens var. pungens is also threatened by the same factors
listed above, as well as by ongoing military activities on the Fort Ord
Army Base and its pending disposal. However, the wider range and greater
number of populations and individuals of this species indicate that it is
not now in danger of extinction throughout a significant portion of its
range, as are the other three species, but is likely to become endangered
within the foreseeable future. Therefore, the preferred action is to list
C. pungens var. pungens as threatened. Not listing this species would not
provide adequate protection and would not be in keeping with the purposes
of the Act. For reasons discussed below, the Service is not designating
critical habitat for these species at this time.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the maximum
extent prudent and determinable, the Secretary designate critical habitat
at the time a species is determined to be endangered or threatened. Section
4(b)(6)(C) further indicates that a concurrent critical habitat designation
is not required if the Service finds that a prompt determination of
endangered or threatened status is essential to the conservation of the
involved species or that critical habitat is not then determinable. The
Service finds that designation of critical habitat for Chorizanthe robusta
and Chorizanthe pungens var. pungens is prudent but presently not
determinable and that designation of critical habitat for Chorizanthe
pungens var. hartwegiana and for Erysimum tetetifolium is not prudent.

The Service will propose designation of critical habitat for certain
populations of Chorizanthe robusta and Chorizanthe pungens var. pungens
that would likely not be imperiled by the threat of vandalism, collecting,
or other human activities. Section 7(a)(2) requires Federal agencies to
insure that their activities are not likely to destroy or adversely modify
critical habitat of a listed species. This stipulation for Federal agencies
is in addition to the requirement to insure that their actions do not
jeopardize the continued existence of federally listed species. Therefore
on lands where Federal actions, funding, authorizations, or licensing
occurs, critical habitat would provide an added benefit to the conservation
of these species. On non-Federal land, the designation of critical habitat
may result in increased awareness of the need for protection. The
designation of critical habitat could be useful for State landowners
because they could use the designation to identify areas of special concern
and to help establish priorities for their own land management.

Section 4(b)(2) of the Act requires the Service to consider economic and
other impacts of designating a particular area as critical habitat. The
Service must evaluate the effects of activities that occur within the
ranges of these plants. The Service must gather data on precise habitat
needs and ownership boundaries to be able to precisely define the critical
habitat of these two plant taxa. In addition, the Service must analyze the
economic impacts that could result from the designation of particular areas
as critical habitat. Designation of critical habitat for Chorizanthe
robusta and Chorizanthe pungens var. pungens is currently not determinable
due to the need for this type of information. A proposal to designate
critical habitat at this time would delay this final rule to list the
species as threatened or endangered. The Service believes that a prompt
determination of endangered or threatened status for these species is
essential to ensure the benefits of conservation measures provided to
species upon listing under the Act. Once the Service has gathered the
necessary data, it will publish a proposal to designate critical habitat
for Chorizanthe robusta and Chorizanthe pungens var. pungens.

Each of the four plants face anthropogenic threats (see Factor A and Factor
B in "Summary of Factors Affecting the Species"), and many of the remaining
populations of these species occur on privately owned property for which
development is proposed or on which vandalism has already been noted. Due
to the small number of populations of C. pungens var. hartwegiana and
Erysimum tetetifolium and the documented vandalism and proposed development
of their habitats, the publication of precise maps and descriptions of
critical habitat in the Federal Register would make them more vulnerable to
such incidents and could contribute to their decline. In addition, no known
Federal action, authorization, licensing, or funding on these lands exist,
hence a designation of critical habitat would provide no additional
protection under section 7 of the Act. Therefore, it would not be prudent
to designate critical habitat for these two species. The appropriate
agencies and landowners can be notified of the locations and management
needs of these plants. Protection of these populations will be addressed
through the recovery process.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition, recovery
actions, requirements for Federal protection, and prohibitions against
certain activities. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups, and
individuals. The Endangered Species Act provides for possible land
acquisition and cooperation with the States and requires that recovery
actions be carried out for all listed species. The protection required of
Federal agencies and the prohibitions against certain activities involving
listed plants are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate
their actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if any
is being designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
requires Federal agencies to insure that activities they authorize, fund,
or carry out are not likely to jeopardize the continued existence of such a
species or to destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with the
Service.

Federal activities potentially impacting one or more of the four taxa
include road and building construction projects and perhaps waterfowl
management practices on Federal land. Populations of one of the four plants
occur, at least in part, on Federal land. Fort Ord, which is managed by the
Department of Defense, supports populations of Chorizanthe pungens var.
pungens on the western and southern portion of the base. The Department of
Defense indicated that closure and transfer of the base at Fort Ord will be
phased over many years. Therefore, potential impacts to C. pungens var.
pungens as a result of the land transfer cannot be determined at this time.
C. pungens var. pungens is also thought to occur on the Salinas River
National Wildlife Refuge, which is managed by the U.S. Fish and Wildlife
Service; currently no activities occur on the Refuge that are known to
affect the C. pungens var. pungens.

Activities relating to the discharge of fill materials into waters of the
United States and other special aquatic sites are regulated by section 404
of the Clean Water Act and may affect Chorizanthe pungens var. hartwegiana
and Erysimum tetetifolium where they occur adjacent to sand quarry
operations. The pending proposal to develop the two Glenwood Estates
parcels in Scotts Valley may also involve the discharge of fill materials.
The Army Corps of Engineers would be required to consult with the Service
on any section 404 permitting actions that may affect these species.

The Act and its implementing regulations found at 50 CFR 17.61, 17.62, and
17.63 for endangered species and 17.71 and 17.71 for threatened species set
forth a series of general prohibitions and exceptions that apply to all
endangered or threatened plants. With respect to the four plant taxa that
are the subject of this final rule, all trade prohibitions of section
9(a)(2) of the Act, implemented by 50 CFR 17.61 and 17.71, apply. These
prohibitions, in part, make it illegal for any person subject to the
jurisdiction of the United States to import or export, transport in
interstate or foreign commerce in the course of a commercial activity, sell
or offer for sale in interstate or foreign commerce, or to remove and
reduce to possession any such species from areas under Federal
jurisdiction. Seeds from cultivated specimens of threatened plant species,
in this case Chorizanthe pungens var. pungens, are exempt from these
prohibitions provided that a statement of "cultivated origin" appears on
their containers. In addition, for listed plants, the Act prohibits
malicious damage or destruction of any such species on any area under
Federal jurisdiction, and the removal, cutting, digging up, or damaging or
destroying any such species on any other area in knowing violation of any
State law or regulation, or in the course of any violation of a State
criminal trespass law. Certain exceptions apply to agents of the Service
and State conservation agencies. The Act and 50 CFR 17.62 and 17.63 also
provide for the issuance of permits to carry out otherwise prohibited
activities involving endangered or threatened plant species under certain
circumstances. It is anticipated that few trade permits would ever be
sought or issued because the four plant species are not common in
cultivation or in the wild. Requests for copies of the regulations on
plants and inquiries regarding them may be addressed to the Office of
Management Authority, U.S. Fish and Wildlife Service, Room 420C, 4401 North
Fairfax Drive, Arlington, Virginia 22203-3507 (703/358-2104).

National Environmental Policy Act

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

References Cited

APC International, Inc. 1992. Letter to Robert J. Hannah, dated October 6,
1992.

Army Corps of Engineers, Sacramento District. 1992. Flora and fauna
baseline study of Fort Ord, California. December. With technical assistance
from Jones and Stokes Associates, Inc. (JSA 90-214) Sacramento, California.

Bittman, R. 1986. Element conservation plan for Erysimum tetetifolium. The
Nature Conservancy, San Francisco, California. 5 pp.

California Native Plant Society. 1986. California Native Plant StatusReport
for Erysimum tetetifolium. Sacramento, California. 3 pp.

California Natural Diversity Data Base. 1990. Unpublished rare plant
occurrence data. Sacramento, California.

California Natural Diversity Data Base. 1992. Unpublished rare plant
occurrence data. Sacramento, California.

California Natural Diversity Data Base. 1993. Unpublished rare plant
occurrence data. Sacramento, California.

Caughman, M., and J.S. Ginsberg. 1987. California Coastal Resource Guide.
University of California Press, Los Angeles.

City of Scotts Valley. 1989. Final supplemental environmental impact report
for Glenwood Estates and Golf Course Development, Scotts Valley,
California. Prepared by Powers & Associates for the City of Scotts Valley.

City of Scotts Valley. 1992. Resolution #1443.1 of the City Council of the
City of Scotts Valley.

County of Santa Cruz. 1990. Quail Hollow Ranch master plan. Preparedby Jeff
Oberdorfer & Associates, Inc., for the County of Santa Cruz.

Eastwood, A. 1938. Two new wallflowers. Leaflets of Western Botany. Vol.
II, No. 5., p. 73.

Eastwood, A. 1939. Erysimum filifolium. Leaflets of Western Botany. Vol.
II, No. 8., p. 144.

Edmondson, J. 1987. Hazards of the game. Audubon. November 1987, pp. 24-37.

Ertter, B. 1990. Report on the results of a panel to evaluate the taxonomic
validity of Chorizanthe robusta var. hartwegii. Unpublished report
submitted to the U.S. Fish and Wildlife Service.

Ferreira, J. 1989. Project status report on dune restoration at Sunset
State Beach. Unpublished report no. 219-410-01-04. California Department of
Parks and Recreation.

Griffin, J.R. 1964. Isolated Pinus ponderosa forests on sandy soils near
Santa Cruz, California. Ecology 45 (1964):410-412.

Habitat Restoration Group. 1992. Glenwood Estates rare plant survey.
Prepared for the City of Scotts Valley, September 3, 1992.

Harding Lawson Associates. 1991. Polo Ranch draft environmental impact
report. Prepared for the City of Scotts Valley.

Hickman, J.C. 1993. Chorizanthe. In: Hickman, J.C. (ed.). The Jepson
Manual; Higher Plants of California. University of California Press,
Berkeley, California. pp. 856-860.

Holland, R.F. 1986. Preliminary descriptions of the terrestrial natural
communities of California. Unpublished report, California Department of
Fish and Game, Sacramento, California.

Howald, A.M. 1992. Finding effective approaches to endangered plant
mitigation. Unpub. rept. California Department of Fish and Game, Yountville
Office.

Huenneke, L.F., K. Holsinger, and M.E. Palmer. 1986. Plant population
biology and the management of viable plant populations. In: Wilcox, B.A.,
P.E. Brussard, B.G. Marcot (eds.). The Management of Viable Populations:
Theory, Applications, and Case Studies. Center for Conservation Biology,
Stanford University, Stanford, California. Pp. 169-183.

Jepson W.L. 1914. Polygonaceae. A flora of California, vol. 1, part 4:
376-428. Associated Students Store, University of California, Berkeley.

John Gilchrist and Associates. 1990. Santa Cruz Aggregates Quail Hollow
Quarry revised draft environmental impact report. Prepared for the County
of Santa Cruz.

Marangio, M.S. 1985. Preservation study: sandhills biotic communities of
Santa Cruz County, California. Unpublished master's thesis, University of
California, Berkeley.

Marangio, M.S., and R. Morgan. 1987. The endangered sandhills plant
communities of Santa Cruz County. In: Elias, T.S. (ed.). Conservation and
management of rare and endangered plants. California Native Plant Society,
Sacramento. Pp. 267-274.

Parry, C.C. 1889. Chorizanthe, R. Brown. Review of certain species
heretofore improperly characterized or wrongly referred; with two new
species. Proc. Davenport Academy of Natural Sciences 5:174-184.

Reveal, J.L., and C.B. Hardham. 1989. A revision of the annual species of
Chorizanthe (Polygonaceae: Eriogonoideae). Phytologia 66:98-198.

Reveal, J.L., and R. Morgan. 1989. A new combination in Chorizanthe robusta
C. Parry (Polygonaceae: Eriogonoideae) from California. Phytologia
67(5):357-360.

Sawyer, J.O., D.A. Thornburgh, and J.R. Griffin. 1988. Mixed evergreen
forest. In: Barbour, M.G., and J. Major (eds.). Terrestrial Vegetation of
California. California Native Plant Society, Special Publication No. 9. Pp.
359-381.

Strelow, S. 1993. Revised draft environmental impact report for SantaCruz
Aggregates, Quail Hollow Quarry.

Thomas, J.H. 1961. Flora of the Santa Cruz Mountains of California.
Stanford University Press, Stanford, California.

Zinke, P.J. 1988. The redwood forest and associated north coast forests.
In: Barbour, M.G., and J. Major (eds.). Terrestrial Vegetation of
California. California Native Plant Society, Special Publication No. 9. Pp.
679-698.

Author

The primary author of this final rule is Connie Rutherford, Ventura Field
Office, U.S. Fish and Wildlife Service, 2140 Eastman Avenue, Suite 100,
Ventura, California 93003.

List of Subjects in 50 CFR Part 17

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

Regulations Promulgation

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

PART 17--[AMENDED]

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

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

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

Sec. 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

---------------------------------------------------------------------------
SCIENTIFIC NAME ....COMMON NAME ....HISTORIC RANGE ....STATUS
....WHEN-LISTED NUMBER ....CRITICAL HABITAT ....SPECIAL RULES
---------------------------------------------------------------------------

* * * * *

Family Brassicaceae--Mustard family

* * * * *

Erysimum teretifolium ....Ben Lomond wallflower ....U.S.A. (CA) ....E
....528 ....NA ....NA

* * * * *

Family Polygonaceae--Buckwheat family

* * * * *

Chorizanthe pungens var. hartwegiana ....Ben Lomond spineflower ....U.S.A.
(CA) ....E ....528 ....NA ....NA

* * * * *

Chorizanthe pungens var. pungens ....Monterey spineflower ....U.S.A. (CA)
....T ....528 ....NA ....NA

* * * * *

Chorizanthe robusta (incl. var. robusta & hartwegii) ....Robust spineflower
....U.S.A. (CA) ....E ....528 ....NA ....NA
---------------------------------------------------------------------------

     Dated: January 31, 1994.

Mollie H. Beattie,
Director, Fish and Wildlife Service

[FR Doc. 94-2547 Filed 2-3-94; 8:45am]
Billing Code 4310-55-P