Endangered and Threatened Wildlife and Plants; 90-Day Finding on Petitions To List the Mono Basin Area Population of the Greater Sage-Grouse (Centrocercus urophasianus) as Threatened or Endangered

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of petition finding and initiation of status review.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on two petitions to list the Mono Basin area population of the greater sage-grouse (Centrocercus urophasianus) in the Bi-State area of California and Nevada as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petitions present substantial scientific or commercial information indicating that listing this population may be warranted. Therefore, with the publication of this notice, we are initiating a status review to determine if listing the Mono Basin area population of greater sage-grouse is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial data and other information regarding this population of the species. We will initiate a determination on critical habitat for this species if and when we initiate a listing action.

DATES:

To allow us adequate time to conduct this review, we request that information be submitted on or before June 27, 2008.

ADDRESSES:

You may submit information by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R8-ES-2008-0043; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

We will not accept e-mail or faxes. We will post all information received on http://www.regulations.gov . This generally means that we will post any personal information you provide us (see the Information Solicited section below for more details).

FOR FURTHER INFORMATION CONTACT:

Robert D. Williams, Field Supervisor, Nevada Fish and Wildlife Office, by mail (see ADDRESSES), by telephone (775-861-6300), or by facsimile (775-861-6301). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the Mono Basin area population of the greater sage-grouse. We request information from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties on the status of the Mono Basin area population of the greater sage-grouse, including:

(1) Information for the Mono Basin area population of greater sage-grouse regarding historical and current population status, distribution, and trends; biology and ecology; and habitat selection;

(2) Information on the effects of potential threat factors that are the basis for a listing determination under section 4(a) of the Act, which are:

(a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;

(b) overutilization for commercial, recreational, scientific, or educational purposes;

(c) disease or predation;

(d) the inadequacy of existing regulatory mechanisms; or

(e) other natural or manmade factors affecting its continued existence; or

(3) Information on management programs for the conservation of the Mono Basin area population of greater sage-grouse.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.) directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” Based on the status review, we will issue a 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act.

You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit information via http://www.regulations.gov,, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov .

Information and materials we receive, as well as supporting documentation we used in preparing this finding, will be available for public inspection on http://www.regulations.gov,, or by appointment during normal business hours, at the U.S. Fish and Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial Boulevard, Suite 234, Reno, NV 89502-7147; telephone 775-861-6300.

Background

For more information on the biology, habitat, and range of the Mono Basin area population of greater sage-grouse, please refer to the “Species Information” section in our previous 90-day finding published in the Federal Register on December 19, 2006 (71 FR 76058).

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (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.

Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly commence a status review of the species.

On January 2, 2002, we received a petition dated December 28, 2001, from the Institute for Wildlife Protection requesting that the sage-grouse population occurring in the Mono Basin area of Mono County, California, and Lyon County, Nevada, be listed as an endangered distinct population segment (DPS) under the Act. The petitioner referred to the sage-grouse population in the Mono Basin area as being part of the subspecies C. u. phaios, which also is known as the western sage-grouse. In other 90-day findings, we have concluded that the subspecies designations for greater sage-grouse are inappropriate given current taxonomic standards (68 FR 6500, February 7, 2003; 69 FR 933, January 7, 2004). However, in response to judicial direction on one of those 90-day findings, the Service is in the process of reconsidering the taxonomic validity of C. u. phaios to determine whether it is a listable entity under the Act. We have not included subspecies designations any further in this finding.

The 2001 petition clearly identified itself as such and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). In a March 20, 2002, letter to the petitioners, we responded that we had reviewed the petition and determined that an emergency listing was not necessary. On December 26, 2002, we published a 90-day finding in which we determined that the petition did not present substantial scientific or commercial information indicating that the petitioned action may be warranted (67 FR 78811). Our 2002 finding was based on the lack of substantial information in the petition indicating that the Mono Basin area population of greater sage-grouse is a DPS under our DPS policy (61 FR 4722; February 7, 1996), and thus we concluded it was not a listable entity (67 FR 78811). Our 2002 finding also included a determination that the petition did not present substantial information that the Mono Basin area population of greater sage-grouse was threatened with extinction (67 FR 78811).

On November 15, 2005, we received a formal petition dated November 10, 2005, submitted by the Stanford Law School Environmental Law Clinic on behalf of the Sagebrush Sea Campaign, Western Watersheds Project, Center for Biological Diversity, and Christians Caring for Creation, to list the Mono Basin area population as a threatened or endangered DPS of the greater sage-grouse under the Act. The petition clearly identified itself as a petition and included the requisite identification information for the petitioners, as required in 50 CFR 424.14(a). In a March 28, 2006, letter to the petitioners, we responded that we reviewed the petition and determined that emergency listing was not warranted. We also stated that due to court orders and settlement agreements for other listing and critical habitat actions that required nearly all of our listing and critical habitat funding for fiscal year 2006, we would not be able to further address the petition at that time. On April 17, 2006, we received a 60-day notice of intent letter from the Stanford Law School Environmental Law Clinic, dated April 14, 2006, notifying us that the petitioners intended to sue the Service for violating the Act's requirement to make a petition finding within 12 months after receiving a petition.

On November 18, 2005, the Institute for Wildlife Protection and Dr. Steven G. Herman filed a Complaint for Declaratory and Injunctive Relief in United States District Court for the Western District of Washington (Institute for Wildlife Protection v. Norton, No. C05-1939 RSM) challenging the Service's 2002 finding that their petition did not present substantial information indicating that the petitioned action may be warranted. On April 11, 2006, we reached a stipulated settlement agreement with the plaintiffs under which we agreed to both evaluate the November 2005 petition and to reconsider the December 2001 petition. The settlement agreement required the Service to submit to the Federal Register a 90-day finding by December 8, 2006, and if substantial, to complete the 12-month finding by December 10, 2007. On December 19, 2006, we published a 90-day finding that these petitions did not present substantial scientific or commercial information indicating that the petitioned actions may be warranted (71 FR 76058). In completing the 2006 finding, we also reviewed the December 2001 petition in the context of whether it provided additional information not discussed in the November 2005 petition.

On June 4, 2007, we received a 60-day notice of intent letter from the Stanford Law School Environmental Law Clinic dated June 1, 2007, notifying us that the petitioners identified in the November 2005 petition intended to sue the Service in connection with the Service's 2006 not-substantial 90-day finding (2006 finding) to list the Mono Basin area population of greater sage-grouse as a DPS under the Act. On August 23, 2007, the November 2005 petitioners filed a Complaint challenging the Service's 2006 finding. Upon review of the Complaint, the Service determined that it would revisit its 2006 finding. The Service entered into a settlement agreement with the petitioners on February 25, 2008. Under the terms of the settlement agreement, the Service agreed to undertake a voluntary remand of the 2006 petition finding, and to submit for publication in the Federal Register a new 90-day finding by April 25, 2008. The agreement further stipulates that if the new 90-day finding is positive, the Service will undertake a status review of the Mono Basin population of the greater sage-grouse and submit for publication in the Federal Register a 12-month finding by April 24, 2009. This notice constitutes our new 90-day finding.

Finding

Based on our reconsideration of the information provided in the petitions, and in accordance with recent applicable court decisions pertaining to 90-day findings, we find that they present substantial scientific information indicating that listing the Mono Basin area population of greater sage-grouse may be warranted. Our process for making this 90-day finding under section 4(b)(3)(A) of the Act is limited to a determination of whether the information in the petition presents “substantial scientific and commercial information,” which is interpreted in our regulations as “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). Therefore, we are initiating a status review to determine if listing the population is warranted. To ensure that the status review is comprehensive, we are soliciting scientific and commercial information regarding the Mono Basin area population of greater sage-grouse.

It is important to note that the “substantial information” standard for a 90-day finding is in contrast to the Act's “best scientific and commercial data” standard that applies to a 12-month finding as to whether a petitioned action is warranted. A 90-day finding is not a status assessment of the species and does not constitute a status review under the Act. Our final determination as to whether a petitioned action is warranted is not made until we have completed a thorough status review of the species, which is conducted following a positive 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a positive 90-day finding does not mean that the 12-month finding also will be positive.

The Service is already in the process of conducting a status review of the greater sage-grouse across the entire range of the species (February 26, 2008; 73 FR 10218), and elsewhere in today's Federal Register we are publishing a notice that extends our request for information on that status review to June 27, 2008. In today's Federal Register we are also publishing a separate notice of a 90-day finding and initiation of a status review for the western sage-grouse (C. u. phaios). Consequently, at this time the Service has formally initiated three status reviews involving the greater sage-grouse, and the respective notices in today's Federal Register each request that information be submitted by June 27, 2008, for each status review. Information submitted for any one of these status reviews that is relevant to the others need not be submitted more than once. Because the status review of the greater sage-grouse that we initiated on February 26, 2008 (73 FR 10218) covers the entire range of the species, it encompasses the Mono Basin population and the western subspecies of the greater sage-grouse. It is our intention to address the taxonomy and status of the Mono Basin area population, including information received in response to this notice, within the rangewide status review of the greater sage-grouse. Further, because the three status reviews are somewhat interrelated, we anticipate that any interrelated aspects will be taken into account in our ultimate decisions.

If we determine that listing the Mono Basin area population of greater sage-grouse is warranted, we intend to propose critical habitat to the maximum extent prudent and determinable at the time we prepare a proposed listing rule.

Author

The primary author of this notice is the staff of the Nevada 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.).