NACO

National Association of Charterboat Operators

90-Day Finding on a Petition To List the Eagle Lake Rainbow Trout as an Endangered or Threatened Species

We, the U.S. Fish and Wildlife Service, announce a 90-day finding on a petition to list the Eagle Lake rainbow trout as an endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing the Eagle Lake rainbow trout may be warranted. Therefore, with the publication of this notice, we are initiating a review of the status of the subspecies to determine if listing the Eagle Lake rainbow trout is warranted.

To ensure that this status review is comprehensive, we are requesting scientific and commercial data and other information regarding this subspecies. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

DATES: We request that we receive information on or before November 5, 2012. The deadline for submitting an electronic comment using the Federal eRulemaking Portal (see ADDRESSES section, below) is 11:59 p.m. Eastern Time on this date. After November 5, 2012, you must submit information directly to the Division of Policy and Directives Management (see ADDRESSES section below). Please note that we might not be able to address or incorporate information that we receive after the above requested date.

ADDRESSES: You may submit information by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R8-ES-

2012-0072, which is the docket number for this action. Then click on 

the Search button. You may submit a comment by clicking on ``Comment 

Now!''

    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 

Comments Processing, Attn: FWS-R8-ES-2012-0072; Division of Policy and 

Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 

Drive, MS 2042-PDM; Arlington, VA 22203.

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

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, Sacramento Fish and Wildlife Office, telephone at 916-414-6600; or facsimile at 916-414-6712. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

When we make a finding that a petition presents substantial 

information indicating that listing a species may be warranted, we are 

required to promptly review the status of the species (status review). 

For the status review to be complete and based on the best available 

scientific and commercial information, we request information on Eagle 

Lake rainbow trout from governmental agencies, Native American tribes, 

the scientific community, industry, and any other interested parties. 

We seek information on:

    (1) The species' biology, range, and population trends, including:

    (a) Habitat requirements for feeding, breeding, and sheltering;

    (b) Genetics and taxonomy;

    (c) Historical and current range, including distribution patterns;

    (d) Historical and current population levels, and current and 

projected trends; and

    (e) Past and ongoing conservation measures for the species, its 

habitat, or both.

    (2) The factors that are the basis for making a listing 

determination for a species under section 4(a) of the Act (16 U.S.C. 

1531 et seq.), which are:

    (a) The present or threatened destruction, modification, or 

curtailment of its habitat or range;

    (b) Overutilization for commercial, recreational, scientific, or 

educational purposes;

    (c) Disease or predation;

    (d) The inadequacy of existing regulatory mechanisms; and

    (e) Other natural or manmade factors affecting its continued 

existence.

    If, after the status review, we determine that listing the Eagle 

Lake rainbow trout is warranted, we will propose critical habitat (see 

definition in section 3(5)(A) of the Act) under section 4 of the Act, 

to the maximum extent prudent and determinable at the time we propose 

to list the species. Therefore, we also request data and information 

on:

    (1) What may constitute ``physical or biological features essential 

to the conservation of the species,'' within the geographical range 

currently occupied by the species;

    (2) Where these features are currently found;

    (3) Whether any of these features may require special management 

considerations or protection;

    (4) Specific areas outside the geographical area occupied by the 

species that are ``essential for the conservation of the species''; and

    (5) What, if any, critical habitat you think we should propose for 

designation if the species is proposed for listing, and why such 

habitat meets the requirements of section 4 of the Act.

    Please include sufficient information with your submission (such as 

scientific journal articles or other publications) to allow us to 

verify any scientific or commercial information you include.

    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. Section 

4(b)(1)(A) of the Act directs that determinations as to whether any 

species is an endangered or threatened species must be made ``solely on 

the basis of the best scientific and commercial data available.''

    You may submit your information concerning this status review by 

one of the methods listed in ADDRESSES. 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 supporting documentation that we received and used 

in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment during normal business hours at 

the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office 

(see FOR FURTHER INFORMATION CONTACT).

Background

Section 4(b)(3)(A) of the Act requires that we make a finding on 

whether a petition to list, delist, or reclassify a species presents 

substantial scientific or commercial information indicating that the 

petitioned action may be warranted. We are to base this finding on 

information provided in the petition, supporting information submitted 

with the petition, and information otherwise available in our files. To 

the maximum extent practicable, we are to make this finding within 90 

days of our receipt of the petition, and publish our notice of 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 conduct a species status review, which we subsequently 

summarize in our 12-month finding.

    The ``substantial information'' standard for a 90-day finding 

differs from the Act's ``best scientific and commercial data'' standard 

that applies to a status review to determine whether a petitioned 

action is warranted. A 90-day finding does not constitute a status 

review under the Act. In a 12-month finding, we will announce our 

determination as to whether a petitioned action is warranted after we 

have completed a thorough status review of the species, which is 

conducted following a substantial 90-day finding. Because the Act's 

standards for a 90-day finding and the status review conducted for a 

12-month finding on a petition are different, as described above, a 

substantial 90-day finding does not mean that our status review and 

resulting determination will result in a warranted finding.

Petition History and Previous Federal Actions

On April 28, 1994, we received a petition, dated April 25, 1994, 

from Mr. John F. Bosta of Susanville, California, requesting that the 

Eagle Lake rainbow trout be listed as an endangered or threatened 

species, with critical habitat, under the Act. On August 7, 1995, we 

published our 90-day finding in the Federal Register (60 FR 40149) that 

the petition did not present substantial scientific or commercial 

information to indicate the petitioned action may be warranted. We 

based the finding on the lack of supporting information included with 

the petition, and on the existence of significant conservation efforts 

then underway.

    On August 15, 2003, we received a new petition, dated August 14, 

2003, again from Mr. John Bosta of Amargosa Valley, Nevada, requesting 

that the Eagle Lake rainbow trout be listed as an endangered or 

threatened species under the Act. The petition clearly identified 

itself as such and included the requisite identification information 

for the petitioner, as required by 50 CFR 424.14(a). On October 6, 

2003, we received a similar petition from Mr. Chuck Sanford, of Loomis, 

California, dated September 23, 2003. As explained in our 1996 Petition 

Management Guidance (Service 1996, p. 5), subsequent petitions are 

treated separately only when they are greater in scope or broaden the 

area of review of the first petition. Mr. Sanford's petition repeated 

the same information provided earlier in Mr. Bosta's August 14, 2003, 

petition and will, therefore, be treated as a comment on the first 

petition we received.

    In a February 24, 2004, letter to Mr. Bosta, we responded that we 

reviewed the information presented in the petition and determined that 

issuing an emergency regulation temporarily listing the species under 

section 4(b)(7) of the Act was not warranted. We also stated that, due 

to court orders and judicially approved settlement agreements for other 

listing and critical habitat determinations under the Act, which 

required nearly all of our listing and critical habitat funding, we 

would not be able to further address the petition at that time but 

would complete the action when workload and funding allowed. Delays in 

responding to the petition continued due to the high priority of 

responding to court orders and settlement agreements. In response to 

litigation brought on behalf of petitioned and candidate species, we 

reached two settlement agreements on May 10, 2011, and July 12, 2011, 

that establish a 6-year work schedule for reaching final listing 

determinations for all petitioned and candidate species (http://www.fws.gov/endangered/improving_ESA/listing_workplan.html). The 

agreements were approved by the Federal District Court of the District 

of Columbia on September 9, 2011 (WildEarth Guardians v. Salazar, Nos. 

10-377). This notice constitutes our 90-day finding on the August 14, 

2003, petition to list the Eagle Lake rainbow trout and is in keeping 

with the Multi-District Litigation (MDL) 6-year work schedule as 

ordered by the Court.

    In our development of this finding, we attempted to contact both 

petitioners regarding the information they presented and to obtain 

documents cited in their petitions. The petitioners did not respond to 

our requests, or we were unable to contact them due to the timeframe 

between receiving the petitions and our ability to review them, and 

thus, we were unable to confirm or clarify the intent of some of the 

petitions' claims or issues raised or to specifically review the 

information. As a result, we have used information available at the 

time of the petition in our files to assist in our review of the 

petitions.

Species Information

The Eagle Lake rainbow trout is a recognized subspecies of rainbow 

trout (Oncorhynchus mykiss) that is native only to Eagle Lake in Lassen 

County, California (Snyder 1918; Busack et al. 1980, pp. 418-424; Moyle 

et al. 1995, p. 85; Moyle 2002, pp. 274-275). Eagle Lake, the second 

largest natural lake located entirely within California, is located 

approximately 15 miles (mi) (24 kilometers (km)) north of Susanville, 

and supports a popular recreational fishery (Moyle et al. 1995, pp. 85-

87). The Eagle Lake rainbow trout can grow to approximately 24 inches 

(in) (60 centimeters (cm)) and weigh up to 10 pounds (lbs) (4.6 

kilograms (kg)) and can tolerate high alkaline conditions (up to pH 

9.6), which is more than any other rainbow trout (Platts and Jensen 

1991, pp. 2-3; Moyle et al. 1995, p. 86; Moyle 2002, p. 277). Eagle 

Lake rainbow trout is distinguished by having 58 chromosomes, instead 

of the 60 chromosomes of most rainbow trout (Busack et al. 1980, p. 

421). The subspecies is unusually late maturing (3 years) and can be 

long-lived (up to 11 years) (Moyle 2002, p. 278), although Eagle Lake 

rainbow trout older than 5 years are rare (McAfee 1966, p. 223).

    The Eagle Lake rainbow trout's alkalinity tolerance helps it to 

survive the unusual conditions of Eagle Lake. Because the lake has no 

natural outlet, it is highly alkaline, with pH levels ranging from 8.4 to 9.6 (Platts 

and Jensen 1991, pp. 2-3; Moyle 2002, p. 277). With the exception of 

the Lahontan cutthroat trout (Oncorhynchus clarki henshawi), the Eagle 

Lake rainbow trout is the only trout that can tolerate pH levels above 

about 8.4. Similarly, the longer lifespan of this fish likely is an 

adaptation to the dry climate in which Eagle Lake is located, which 

makes natural spawning impossible during some years due to lack of 

water in the main spawning areas of Pine Creek (the primary tributary 

to Eagle Lake) and Bogard Springs Creek (an upper tributary to Pine 

Creek). Pine Creek has a total length of approximately 40 miles (Young 

1989, p. 1). Pine Creek flows into the northwestern portion of the lake 

and currently has perennial flow for only the first 5 to 10 mi (8 to 16 

km) of the 30- to 40-mi (48- to 64-km) creek (Platts and Jensen 1991, 

p. 4). The rest of the creek is intermittent, flowing in most years 

from March through about mid-June (Young 1989, p. 1).

    Historically, Eagle Lake rainbow trout spawned primarily in the 

headwaters of Pine Creek (Moyle et al. 1995, p. 86). After spending 1 

to 2 years in the headwaters of Pine Creek, juveniles made their way 

downstream to the lake, where they lived the rest of their lives except 

for spawning trips in the spring (Moyle et al. 1995, p. 86). Some 

spawning activity has also been observed along gravelly shores of Eagle 

Lake, but it is unknown if spawning has been successful or if it has 

contributed to recruitment to the population (Moyle et al. 1995, p. 

86). A riverine population also may have remained in perennial portions 

of Pine Creek, rather than migrating to the Lake (Platts and Jensen 

1991, pp. 19, 22).

    Prior to 1917, population levels of Eagle Lake rainbow trout within 

the lake were high enough to support a commercial fishery, but 

harvesting of the fish was extremely high, leading to concerns the fish 

would be driven to extinction (Snyder 1917, p. 78; Moyle et al. 1995 p. 

87). In 1917, the State of California banned commercial trout fishing 

in Eagle Lake, but the population of the Eagle Lake rainbow trout 

remained low (Moyle et al. 1995, p. 87). According to researchers, the 

probable reasons for the continued low population numbers included 

drought, water diversions, logging, heavy grazing, barriers to upstream 

and downstream movement, introduced predatory brook trout (Salvelinus 

fontinalis) in the headwaters of Pine Creek, and road and railroad 

construction across Pine Creek that restricted the creek's flow and 

channelized the streambed (Platts and Jensen 1991, p. 1; Moyle et al. 

1995, p. 87). Water from Eagle Lake was being diverted through the Bly 

Tunnel to agricultural operations south of Susanville between 1923 to 

1935; however, this diversion has been plugged and is no longer in use 

(Platts and Jensen 1991, p. 2).

    Since 1950, reproduction in the Eagle Lake rainbow trout population 

has depended largely on a hatchery program run by the California 

Department of Fish and Game (CDFG) (Platts and Jensen 1991, pp. 20-22; 

Moyle et al. 1995, p. 88). Fish are captured to collect their eggs and 

milt in order to produce offspring to release in Eagle Lake, and in 

more recent times, hatchery-produced trout have been released 

throughout the western United States and Canada for sport fishery 

purposes (Moyle et al. 1995, p. 87; Behnke 2002, p. 103; Moyle 2002, p. 

275). In the late-1940s into the mid-1950s, collection traps on Pine 

Creek as well as additional artificial barriers at the mouths of other 

creeks were constructed (Platts and Jensen 1991, p. 21; Moyle et al. 

1995, p. 87). These barriers were installed as part of an effort to 

protect the fish from being stranded in the creeks by insufficient 

flows and to assist in the collection of fish for the hatchery program.

    Between 1959 and 1994, Eagle Lake rainbow trout were known to pass 

above the weir at Pine Creek during years of high water flow. The 

structure at Pine Creek was rebuilt in 1995 to address erosion problems 

and to prevent upstream migration because some individuals were being 

stranded, resulting in their death during years of low water levels. 

Construction modifications on the weir in 1995, and installation of an 

Alaskan style fish weir at the site in 2002, have made it highly 

unlikely that fish attempting to move upstream have been able to pass 

the weir to reach the headwaters of the creek to spawn, even in high 

flow years.

    The CDFG traps fish as they enter Pine Creek from Eagle Lake. The 

fish are then collected and artificially spawned to produce 2 to 3 

million eggs, which are shipped to Crystal Lake and Darrah Springs 

State Fish Hatcheries (Platts and Jensen 1991, pp. 20-23; Moyle et al. 

1995, p. 87). Some of the collected eggs are sent to other State 

hatcheries for stocking in waters across the country (Moyle et al. 

1995, p. 87). Eggs from fish collected at the mouth of Pine Creek are 

hatched, and the hatchery-spawned trout are returned and released into 

Eagle Lake (Moyle et al. 1995, pp. 87, 88). Approximately 90,000 half-

pound fish produced at the hatcheries are released into Eagle Lake each 

fall near Pine Creek, while another 90,000 half-pound fish are released 

at the south end of the Lake annually. Another 1,000 young fish are 

also stocked in the Pine Creek headwaters, with the hope that they will 

prey on and outcompete the smaller nonnative brook trout that spawn 

there. Portions of each release group are freeze-marked to allow mark-

recapture estimates of the population in the Lake.

    In 1987, a Coordinated Resource Management Planning (CRMP) group 

met to identify goals and implement a course of action for habitat and 

ecosystem restoration for Pine Creek. The initial goals for restoring 

Pine Creek included: (1) Improve streambank stability; (2) improve 

vegetation cover in watershed; (3) raise the streambed and watertable 

in the drainage and spread out peak flows of Pine Creek; (4) restore 

the natural Eagle Lake rainbow trout fishery in Pine Creek; (5) improve 

wildlife habitat along Pine Creek; (6) reduce nutrient and sediment 

loading into Eagle Lake from Pine Creek; (7) maintain grazing and 

timber management; and (8) meet goals in a coordinated effort with all 

affected parties (Platts and Jensen 1991, p. 1). The CRMP group 

includes membership by the U.S. Forest Service (USFS), the University 

of California Cooperative Extension for Lassen County, the CDFG, and 

local landowners and interested parties. The Service has been 

occasionally involved in the planning efforts of the CRMP group since 

1995. Numerous restoration efforts have been implemented since 1987 or 

are planned for the Pine Creek watershed.

Evaluation of Information for This Finding

Section 4 of the Act and its implementing regulations at 50 CFR 424 

set forth the procedures for adding a species to, or removing a species 

from, the Federal Lists of Endangered and Threatened Wildlife and 

Plants. A species may be determined to be an endangered or threatened 

species due to one or more of the five factors described in section 

4(a)(1) of the Act:

    (A) The present or threatened destruction, modification, or 

curtailment of its habitat or range;

    (B) Overutilization for commercial, recreational, scientific, or 

educational purposes;

    (C) Disease or predation;

    (D) The inadequacy of existing regulatory mechanisms; or

    (E) Other natural or manmade factors affecting its continued 

existence.

    In considering what factors might constitute threats, we must look 

beyond the mere exposure of the species to the 

factor to determine whether the species responds to the factor in a way 

that causes actual impacts to the species. If there is exposure to a 

factor, but no response, or only a positive response, that factor is 

not a threat. If there is exposure and the species responds negatively, 

the factor may be a threat and we then attempt to determine how 

significant a threat it is. If the threat is significant, it may drive 

or contribute to the risk of extinction of the species such that the 

species may warrant listing as an endangered or threatened species as 

those terms are defined by the Act. This does not necessarily require 

empirical proof of a threat. The combination of exposure and some 

corroborating evidence of how the species is likely impacted could 

suffice. The mere identification of factors that could impact a species 

negatively may not be sufficient to compel a finding that listing may 

be warranted. The information shall contain evidence sufficient to 

suggest that these factors may be operative threats that act on the 

species to the point that the species may meet the definition of 

endangered or threatened under the Act.

    In making this 90-day finding, we evaluated whether information 

regarding the threats to the Eagle Lake rainbow trout, as presented in 

the petition and other information available in our files at the time 

the petition was received, is substantial, thereby indicating that the 

petitioned action may be warranted. Our evaluation of this information 

is presented below.

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

Information Provided in the Petition: The petition asserts that 

past habitat modification, coupled with uncompleted habitat restoration 

projects, and the establishment of a barrier (weir) on Pine Creek for 

fish collection and hatchery purposes has eliminated natural spawning 

for the Eagle Lake rainbow trout and that the CRMP group established to 

coordinate habitat improvement efforts has not met in over 2 years 

(prior to 2003) and should be considered a failure.

    Evaluation of Information Provided in the Petition and Available in 

Service Files: Under the guidance of the CRMP group, numerous habitat 

improvement projects for Pine Creek were completed or were nearing 

completion at the time the petition was received. The restoration 

efforts that had been implemented by 2003 within the Pine Creek 

watershed by the CRMP group included but were not limited to actions 

such as stream fencing, old channel restoration, and removal of 

upstream barriers (Highway 44 and the Burlington Northern Railroad 

crossing) (Platts and Jensen 1991, pp. 1-2; Moyle 2002, p. 282). In 

addition, the grazing regimes along Pine Creek were modified and 

channel restoration projects were completed to encourage increased 

flows over longer time periods and to improve stream bank conditions. 

However, access to Pine Creek and its spawning grounds by Eagle Lake 

rainbow trout have been for the most part blocked since the late 1950's 

by a barrier (weir). The barrier was initially established to assist 

spawning as a result of low population numbers and to prevent fish from 

becoming stranded in Pine Creek during low flow periods. Even though 

some experts have stated that the trapping and collection of fish at 

the barrier most likely prevented the species from becoming extinct, 

the petitioners expressed concern with the hatchery program because 

fish in the early life-history stages are gradually being selected for 

survival in a hatchery environment, rather than in the wild (Moyle et 

al. 1995, p. 88), and this may increase the difficulty of 

reestablishing a naturally spawning population (Moyle 2002, p. 282). 

Fortunately, the present management strategy for Eagle Lake rainbow 

trout by the CDFG is to reestablish a self-sustaining wild population, 

but this has not yet occurred and hatchery operations are regarded as 

being an ongoing necessity in maintaining the trophy fishery for Eagle 

Lake (Platts and Jensen 1991, pp. 19-25; Moyle et al. 1995, p. 88).

    Factor A Summary: Available information in our files (Platts and 

Jensen 1991; Moyle et al. 1995; Moyle 2002) indicates that the CRMP 

group had been and continues to make appreciable progress in addressing 

past habitat alterations and detrimental land use practices including 

the restoration of Pine Creek habitat and streamflows and development 

of plans for fish passage within Pine Creek. However, the presence of 

the weir on Pine Creek was preventing fish passage and access to 

spawning grounds and therefore, has most likely prevented and continues 

to prevent any natural spawning from occurring. As a result, we find 

that the present or threatened destruction, modification, or 

curtailment of the species' habitat or range may be a threat. We will 

further investigate the threatened destruction, modification, or 

curtailment of the species' habitat or range in our status review for 

this subspecies.

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

The information provided in the petition and in our files does not 

indicate that any impact from overutilization is occurring to Eagle 

Lake rainbow trout. Commercial fishing for the fish was stopped in 1917 

(Snyder 1917, p. 78). However, we will further investigate 

overutilization for commercial, recreational, scientific, or 

educational purposes in our status review for this subspecies.

C. Disease or Predation

Information Provided in the Petition: The petition states that 

Eagle Lake rainbow trout were subject to outbreaks of ``strawberry 

disease'' in 2000 and 2003. Strawberry disease is a skin disorder of 

unknown origin that occurs in rainbow trout and is identified by bright 

red lesions on the skin. The petition attributes these outbreaks to 

stress, and describes symptoms such as weight loss and a tube-like 

appearance. The petition cites the following items in support: (1) An 

article from the Washington Department of Fish and Wildlife; (2) two 

CDFG fish pathologist reports from 2000, one of which positively 

identifies the disease on a single fish; and (3) low-resolution 

photocopies of pictures of Eagle Lake rainbow trout with the disease.

    Evaluation of Information Provided in the Petition and Available in 

Service Files: Strawberry disease is a skin disease that occurs 

sporadically in rainbow trout (Oncorhynchus sp.) and is a subchronic, 

nondebilitating, and nonfatal disease that has been recognized since 

the late 1950s (Olsen et al. 1985, p. 104). The disease goes into 

remission when water conditions improve, and untreated fish usually 

recover in 8 weeks (Olson et al. 1985, p. 105). We were unable to 

obtain a copy of the undated Washington Department of Fish and Wildlife 

article by Oman, and as a result, could not review the document for 

this finding. We are not aware of, and the petition did not provide any 

additional information regarding, the impacts associated with disease 

to the Eagle Lake rainbow trout or the extent to which disease may 

affect the subspecies.

    The petition did not provide any information regarding predation. 

However, information in our files does include information on potential 

predation by introduced trout species. As stated in the Species 

Information section, a permanent population of Eagle Lake rainbow trout 

occupy upper Pine Creek in small numbers and may spawn (Platts and Jensen 1991, pp. 

19, 22). Pine Creek, like other streams and lakes in California, was 

stocked indiscriminately with nonnative trout in the 1940s and 1950s. 

On Pine Creek, brook trout (Salvelinus fontinalis) and other rainbow 

trout of unknown origin were stocked heavily until about 1950. 

Cutthroat trout may have also been planted in the 1940s. However, since 

the early 1950s, it appears that only Eagle Lake rainbow trout have 

been stocked in Pine Creek. Surveys in 1989 found brook trout to be 

dominant in the upper Pine Creek watershed including the Bogard Springs 

reach, Pine Valley, and Stephens Meadow. The dense brook trout 

populations most likely have had a negative effect on Eagle Lake 

rainbow trout populations in Pine Creek by keeping them unnaturally low 

(through predation of young or competition for resources) and may be 

preventing significant reestablishment (Platts and Jensen 1991, p. 24; 

Moyle et al. 1995, p. 88).

    Summary of Factor C: The information provided in the petition and 

in our files does indicate that strawberry disease may affect 

individual Eagle Lake rainbow trout, but the extent and degree of the 

impacts are most likely small, short term, and isolated in nature. 

Predation in the main spawning habitat of Pine Creek from introduced 

brook trout most likely is occurring and may be having a negative 

effect on the stream population by keeping numbers artificially low. As 

a result, we find that predation by introduced brook trout may be a 

threat. We will further investigate disease or predation in our status 

review for this subspecies.

D. The Inadequacy of Existing Regulatory Mechanisms

The petition does not discuss or provide any information on how an 

inadequacy of existing regulatory mechanisms under Factor D may 

threaten the Eagle Lake rainbow trout, and we do not have any 

information in our files suggesting that existing regulatory mechanisms 

are inadequate. However, we will further investigate whether the 

existing regulatory mechanisms are inadequate in our status review for 

the subspecies.

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

The petition lists two potential threats relevant to Factor E: (1) 

Mortality of Eagle Lake rainbow trout in 2000 during CDFG trout-

stocking activities; and (2) hatchery practices that have reduced Eagle 

Lake rainbow trout's survival in the wild and affected their genetics 

through gene pool alteration and species contamination.

    Issue 1; Information Provided in the Petition: The petition claims 

that in November 2000, approximately 2,000 Eagle Lake rainbow trout 

were accidentally killed by CDFG when they were put into water that was 

too cold when they were stocked into Eagle Lake.

    Evaluation of Information in the Petition and Available in Service 

Files: At the time of the petition we were not aware of any fish kills 

due to stocking activities. However, the information provided in the 

petition does not indicate that the loss of approximately 2,000 Eagle 

Lake rainbow trout due to stocking operations may be a factor that 

threatens the status of the subspecies. As stated earlier in the 

Species Information section, approximately 180,000 trout are stocked 

annually in Eagle Lake. The loss of 2,000 fish during a single event 

would not significantly affect the population of Eagle Lake rainbow 

trout as a whole. However, we will further investigate whether the loss 

of fish from stocking operations is a significant loss in our status 

review for the subspecies.

    Issue 2; Information Provided in the Petition: The petition states 

that hatchery rearing is breeding out the ``wildness'' in the Eagle 

Lake rainbow trout and causing them to be less aggressive during 

spawning or be able to make the 40-mi (64-km) trip to the spawning 

grounds on Pine Creek. No information is provided specifically to 

support this claim, although other information provided relevant to the 

additional genetics arguments discussed below may have been intended 

for consideration with this argument as well. The petition argues that 

hatchery rearing has genetically altered the ``Eagle Lake trout'' into 

the Eagle Lake rainbow trout, and that these changes have altered the 

fish's ability to live in the higher alkaline water of the lake. The 

petition also states that these changes, brought about or abetted by 

stocking of ``domestic'' Eagle Lake rainbow trout from the Mount Shasta 

hatchery, have changed the native ``March through May'' spawning cycle 

to June through August. The petition cites a series of papers 

indicating that hatchery-rearing affects the long-term viability of the 

subspecies by genetic selection, alterations, and lowering their 

survival in the wild (Muir and Howard 1999, pp. 13853-13856; Marchetti 

and Nevitt 2003, pp. 9-14). The petition also cites an article by Robb 

Leary and Fred Allendorf, and another by M. Walker, but the journal 

titles and publication dates were not provided. As a result, we were 

unable to review the information. However, we did find a similarly 

titled article by Robb Leary, which may have been a prepublication 

version (see further discussion below).

    Evaluation of Information in the Petition and Available in Service 

Files: Eagle Lake rainbow trout was originally called Eagle Lake trout 

(Snyder 1917, p. 77). Although the petition implies taxonomic changes 

have occurred regarding the subspecies because of hatchery operations 

and mixing with other rainbow trout, the name revision merely reflects 

a name change and not genetic manipulation or behavioral differences. 

However, Moyle et al. (1995) did cite concerns that the hatchery 

program may be resulting in fish that are gradually being selected for 

survival in the early life-history stages in a hatchery environment, 

rather than in the wild. They further state that the dependence on 

hatcheries for maintaining the Eagle Lake rainbow trout is undesirable 

because the survival of the species becomes dependent on the vagaries 

of hatchery funding and management and may be exposed to threats from 

disease and genetic disorders (Moyle et al. 1995, p. 88).

    Moyle et al. (1995, p. 86) does support the petition's assertion 

that stocking procedures at one time involved placement of 25,000 

``wild'' and 150,000 ``domestic'' fish in the lake, and also notes that 

the ``domestic'' fish came from broodstock maintained at the Mount 

Shasta Hatchery. However, they do not suggest the domestic fish 

differed in any appreciable way, and they go on to explain that the 

``domestic'' fish were marked so as to prevent their use in spawning, 

even if trapped at Pine Creek (Moyle et al. 1995, p. 86). The CDFG no 

longer stocks fish taken from broodstock maintained at the Mount Shasta 

Hatchery but only uses reproductively mature Eagle Lake rainbow trout 

that move into Pine Creek from Eagle Lake in order to spawn. The paper 

by Marchetti and Nevitt (2003) cited by the petition does not provide 

strong support for the petition's implied assertion that hatchery 

rearing may be altering the brain structure of Eagle Lake rainbow trout 

individuals. The hatchery-raised trout in the study were descended from 

a long line (50 to 90 years) of solely hatchery-reared broodstock 

(Marchetti and Nevitt 2003, p. 10). Serious genetic changes capable of 

altering brain development are much more likely under such conditions 

due to the unintentional selection of traits promoting survival under 

hatchery conditions (Marchetti and Nevitt 2003, p. 11). In contrast, 

trout stocked in Eagle Lake come from eggs collected in the 

wild. While it is possible that at least some of the developmental 

brain differences noted by Marchetti and Nevitt (2003) result from 

environmental factors in the hatchery rather than from genetic 

differences, the petition presents no evidence to support that idea, 

nor to demonstrate how it might apply to Eagle Lake rainbow trout. 

Eagle Lake rainbow trout seem to have retained their basic biological 

traits and their migratory life history, as evidenced by their annual 

attempt to spawn in Pine Creek.

    Muir and Howard (1999, entire) used modeling based on the Japanese 

medaka (Oryzias latipes), which were transgenic, meaning they had had 

portions of their genome deliberately spliced with genes from another 

species (genetically modified). Transgenic fish and their impacts are 

not relevant to the situation of the Eagle Lake rainbow trout.

    Because the petition did not include reference information for the 

Leary and Allendorf paper, it is difficult for us to assess its 

content. We did find a study by Leary that we believe may be the paper 

referenced by the petition (Leary 1996); however, it does not appear to 

provide strong support for the petition's conclusions. While the study 

did find differences between hatchery and naturally spawning stocks, 

the author also emphasized that the differences were of ``little or no 

biological significance'' (Leary 1996, pp. 11-13).

    Summary of Factor E: We agree that a potential genotype and 

phenotypic shift in an ongoing hatchery system due to changed selection 

pressures can be an issue of concern for wild fish populations. 

Therefore, we find that the hatchery practices may be a threat. We will 

further investigate whether the hatchery operations and any other 

natural or manmade factors have significant effects on Eagle Lake 

rainbow trout in our status review for the subspecies.

Finding

We have reviewed the petition, literature cited in the petition, 

and information in our files and evaluated that information in relation 

to the information available to us at the time we received the 

petition. After this review and evaluation, we find that the petition 

does present substantial scientific information that listing the Eagle 

Lake rainbow trout may be warranted at this time.

    We evaluated each of the five listing factors individually, and 

because the potential threats to the Eagle Lake rainbow trout may not 

be mutually exclusive, we also evaluated the collective effect of these 

potential threats. The petition focused on three of the five listing 

factors; habitat modification (Factor A), disease (Factor C), and 

``other natural or manmade factors'' (Factor E). Based on information 

we had at the time of the petition, the placement of the weir on Pine 

Creek has all but eliminated access to the spawning grounds, and 

although habitat conditions on Pine Creek had significantly improved 

through implementation of measures by the CRMP group, habitat 

conditions were still a concern and it was uncertain if fish are able 

to traverse the distance between the lake and spawning grounds.

    The petition raised several concerns regarding potential genetic 

threats to the subspecies. Although many of these arguments were either 

unsupported, or supported by incomplete citations to articles that we 

were unable to locate, the information we did have or were able to find 

did raise concerns and supported less dependence on hatchery rearing.

    On the basis of our determination under section 4(b)(3)(A) of the 

Act, we determine that the petition and the information in our files 

presents substantial scientific or commercial information indicating 

that listing the Eagle Lake rainbow trout throughout its range may be 

warranted. This finding is based on information provided under Factors 

A (the present or threatened destruction, modification, or curtailment 

of its habitat or range), C (predation), and E (other natural or 

manmade factors affecting the subspecies' continued existence). 

Although information provided under Factors C (disease), B 

(overutilization for commercial, recreational, scientific, or 

educational purposes), and D (inadequacy of existing regulatory 

mechanisms) do not support the petition's assertions, we will further 

consider information relating to these factors in the status review.

    Because we have found that the petition presents substantial 

information indicating that listing Eagle Lake rainbow trout may be 

warranted, we are initiating a status review to determine whether 

listing Eagle Lake rainbow trout under the Act is warranted. We will 

fully evaluate these potential threats during our status review, 

pursuant to the Act's requirement to review the best available 

scientific information when making our 12-month finding. Accordingly, 

we encourage the public to consider and submit information related to 

these and any other threats that may be operating on the Eagle Lake 

rainbow trout (see ``Request for Information'').

References Cited

    A complete list of references cited is available on the Internet at 

http://www.regulations.gov and upon request from the Sacramento Fish 

and Wildlife Office

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