[Federal Register: November 18, 2003 (Volume 68, Number 222)]
[Proposed Rules]               
[Page 65020-65023]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT52

Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Mexican Spotted Owl

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of public comment period.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce 
that, based on the October 10, 2003, decision in Center for Biological 
Diversity v. Norton, Civ. 01-409 TUC DCB (D. Ariz.), we are once again 
soliciting comment on our July 21, 2000, proposed rule (hereinafter 
referred to as the July 2000 proposal) to designate critical habitat 
for the Mexican spotted owl (Strix occidentalis lucida) (65 FR 45336). 
We issued a final rule to the July 2000 proposal on February 1, 2001 
(66 FR 8530). The final rule did not include some Forest Service and 
tribal lands that had been proposed for designation as critical habitat 
in the July 2000 proposal. This final rule is still in effect while we 
reconsider the proposed rule and issuance of a new final rule. Comments 
previously submitted on the July 2000 proposal need not be resubmitted 
because we will incorporate them into the public record as part of this 
reopening of the comment period and will fully consider them in 
development of a new final rule.
    The Mexican spotted owl (owl) inhabits canyon and montane forest 
habitats across a range that extends from southern Utah and Colorado, 
through Arizona, New Mexico, and west Texas, to the mountains of 
central Mexico. The July 2000 proposal included

[[Page 65021]]

approximately 5.5 million hectares (ha) (13.5 million acres (ac)) of 
critical habitat in Arizona, Colorado, New Mexico, and Utah, mostly on 
Federal lands. The final rule designated approximately 1.9 million ha 
(4.6 million ac) of critical habitat on Federal lands in Arizona, 
Colorado, New Mexico, and Utah.

DATES: We will accept comments until December 18, 2003.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning the July 2000 proposal by any one of several 
    1. You may submit written comments and information to the Field 
Supervisor, New Mexico Ecological Services Field Office, 2105 Osuna 
Road NE, Albuquerque, New Mexico 87113.
    2. You may hand-deliver written comments and information to our New 
Mexico Ecological Services Field Office, at the above address, or fax 
your comments to 505-346-2542.
    3. You may send your comments by electronic mail (e-mail) to ``R2FWE_AL@fws.gov.'' For directions on how to submit electronic 
filing of comments, see the ``Public Comments Solicited'' section.
    All comments and materials received, as well as supporting 
documentation used in preparation of this notice and the July 2000 
proposed rule (65 FR 45336) will be available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Joy Nicholopoulos, New Mexico State 
Administrator, New Mexico Ecological Services Field Office (telephone 
505-761-4706, facsimile 505-346-2542).


Public Comments Solicited

    Comments previously submitted on the July 2000 proposal need not be 
resubmitted, because they will be incorporated into the public record 
as part of this reopening of the comment period, and will be fully 
considered in the final rule. It is our intent that any final action 
resulting from our July 2000 proposal be as accurate as possible.
    Section 4 of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.) (Act), requires us to consider the economic and 
other relevant impacts of specifying any area as critical habitat and 
authorizes us to exclude areas from designation upon finding that the 
benefits of exclusion outweigh the benefits of including the areas as 
critical habitat, so long as excluding those areas will not result in 
the extinction of the species concerned. We will conduct a new analysis 
of the economic impacts of designating these areas, in a manner that is 
consistent with the ruling of the 10th Circuit Court of Appeals in New 
Mexico Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (10th Cir. 2001). 
We will also undertake a new National Environmental Policy Act (NEPA) 
analysis for this critical habitat designation. We intend to publish a 
notice of availability and reopening of the comment period in the 
Federal Register to accept public comments on the draft economic 
analysis and draft NEPA compliance documents.
    We hereby solicit data and comments from the public on all aspects 
of the July 2000 proposal, including new scientific or commercial data 
and new data on economic and other impacts of the designation. We also 
are specifically seeking comment on the exclusion of tribal lands (see 
``Designation of Critical Habitat on Tribal Lands'' section below). The 
final designation may differ from the July 2000 proposal based on new 
information received during the public comment period and the findings 
of the economic analysis and NEPA assessment. We particularly seek 
comments concerning:
    (1) The reasons why any areas should or should not be determined to 
be critical habitat as provided by section 4 of the Act;
    (2) Specific information on the amount and distribution of owl 
habitat, and what habitat is essential to the conservation of the 
species and why;
    (3) Land use designations and current or planned activities in or 
adjacent to the areas proposed, and their possible impacts on proposed 
critical habitat;
    (4) Any foreseeable economic or other potential impacts resulting 
from the proposed designation, including any impacts on small entities;
    (5) Economic and other values associated with the benefits of 
designating critical habitat for the owl, such as those derived from 
nonconsumptive uses (e.g., hiking, camping, birding, enhanced watershed 
protection, increased soil retention, ``existence values,'' and 
reductions in administrative costs);
    (6) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (7) Conservation benefits to the owl from tribal or other 
management plans;
    (8) The possible effects of a critical habitat designation on 
tribal or other lands; and
    (9) The possible effects on tribal or other resources resulting 
from designation of critical habitat on nontribal lands.
    If you wish to comment, you may submit your comments and materials 
concerning the July 2000 proposal by any one of several methods (see 
ADDRESSES section). Please submit electronic comments in ASCII file 
format and avoid the use of special characters or any form of 
encryption. Please also include ``Attn: RIN 1018-AT52'' in your e-mail 
subject header and your name and return address in the body of your 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, contact us directly by calling our 
New Mexico Ecological Services Field Office at (505) 346-2525.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you would like for us to withhold your name 
and/or address, you must state this prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
entirety. Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 


Recent Court Actions Related to Critical Habitat for the Owl

    On March 13, 2000, the United States District Court for the 
District of New Mexico, (Southwest Center for Biological Diversity v. 
Babbitt, CIV 99-519 LFG/LCS-ACE), ordered us to propose critical 
habitat for the Mexican spotted owl within 4 months of the Court's 
order, and to complete and publish a final designation of critical 
habitat by January 15, 2001. On July 21, 2000, we published a proposal 
to designate critical habitat for the Mexican spotted owl on 
approximately 5.5 million hectares (ha) (13.5 million acres (ac)) in 
Arizona, Colorado, New Mexico, and Utah, mostly on Federal

[[Page 65022]]

lands (65 FR 45336). The initial comment period was open until 
September 19, 2000. During this 60-day comment period, we held 6 public 
hearings on the proposed rule. On October 20, 2000, we published a 
notice announcing the reopening of the comment period and the 
availability of the draft economic analysis and draft environmental 
assessment on the proposal to designate critical habitat for the owl 
(65 FR 63047). The final comment period was open until November 20, 
2000. On February 1, 2001 (66 FR 8530), we published the final rule 
designating critical habitat for the owl. The final rule excluded all 
National Forest Service lands in Arizona and New Mexico and certain 
tribal lands and designated critical habitat on approximately 1.9 
million ha (4.6 million ac). On August 27, 2001, the Center for 
Biological Diversity filed a complaint challenging our decision to 
exclude these lands from the final designation of critical habitat for 
the owl.
    On January 13, 2003, the United States District Court for the 
District of Arizona, (Center for Biological Diversity v. Norton, Civ. 
No. 01-409 TUC DCB), ruled that our final rule designating critical 
habitat for the owl violated the Act, as well as the Administrative 
Procedure Act (5 U.S.C. 551 et seq.). The Court ordered us to repropose 
critical habitat within 3 months and finalize within 6 months from the 
date of the order. The Court also stated that the current critical 
habitat designation for the owl (i.e., that promulgated by 66 FR 8530 
and codified at 50 CFR 17.95) shall remain in effect and be enforced 
until such time as we publish a new final designation of critical 
habitat for the owl. In a subsequent order, on February 18, 2003, the 
original deadlines were extended to allow until October 13, 2003, to 
repropose critical habitat for the owl and until April 13, 2004, to 
publish a new final designation of critical habitat.
    On August 28, 2003, we filed a motion with the Court seeking a stay 
from the Court's January 13, 2003, order and an extension of time to 
complete the redesignation. A supporting declaration explained our 
budgetary difficulties for work on critical habitat designations in 
Fiscal Year 2003, and explained how we would completely exhaust our 
budget for critical habitat designations well before the end of the 
fiscal year due to other court orders with due dates preceding this 
one. On October 10, 2003, the Court ruled that it would permit a 
limited extension and ordered the parties to meet and confer within 15 
days of the order to prepare a reasonable timeline for compliance with 
the January 13, 2003, order. The Court also indicated that a notice 
reopening the comment period on the July 2000 proposal is appropriate. 
On October 30, 2003, the parties submitted a Joint Proposed Timeline 
and Memorandum of Dispute to the Court. The parties agreed that this 
notice would solicit comment regarding all of the lands proposed for 
designation that were not included in the final designation. The 
parties did not agree to a schedule for completion of the final rule, 
and a variety of other matters. We anticipate that the Court will 
resolve these issues shortly.

Designation of Critical Habitat on Tribal Lands

    In accordance with the Secretarial Order 3206, ``American Indian 
Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175; and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that fish, wildlife, and other 
natural resources on tribal lands are better managed under tribal 
authorities, policies, and programs than through Federal regulation 
wherever possible and practicable. Based on this philosophy, we believe 
that, in many cases, designation of tribal lands as critical habitat 
provides very little additional benefit to threatened and endangered 
species. This is especially true where the habitat is occupied by the 
species and is therefore already subject to protection under the Act 
through section 7 consultation requirements. Conversely, such 
designation is often viewed by tribes as an unwanted intrusion into 
tribal self-governance, thus compromising the government-to-government 
relationship essential to achieving our mutual goals of managing for 
healthy ecosystems upon which the viability of threatened and 
endangered species populations depend.
    At this time, for the general reasons described above and the 
preliminary 4(b)(2) analysis below, as well as the specific mechanisms 
in place for each tribe whose lands are at issue, we anticipate that 
the 4(b)(2) analysis process will lead us to exclude all tribal lands 
in our final designation for the owl. We emphasize that this is only a 
tentative conclusion. Any exclusions in the final rule will be the 
result of a reanalysis, including consideration of all comments 
received and the findings of the economic analysis and NEPA assessment.
    In making our final decision with regard to tribal lands, we will 
be considering several factors. At this time, we have received 
management plans from those tribes whose lands were excluded from the 
January 2001 final rule based on the definition of critical habitat, 
and we have been notified by the San Carlos Apache Tribe that their 
completed management plan is in the process of being submitted to the 
Tribal Council for approval. We anticipate receiving either a draft or 
final management plan shortly and will make it available to the public 
upon receipt. You may request copies of these by contacting the New 
Mexico Ecological Services Field Office (see ADDRESSES section above). 
As discussed below, we will consider the benefits to the owl from these 
management plans. Additionally, we and the tribes currently have 
cooperative working relationships, that have enabled us to implement 
natural resource programs of mutual interest for the benefit of the owl 
and other threatened and endangered species. We will take into account 
the potential adverse impact to these current working relationships 
from designation of critical habitat on tribal lands.
    We provide the following preliminary 4(b)(2) analysis so that we 
may obtain more meaningful comment on our anticipated exclusion of 
these tribal lands:
(1) Benefits of Inclusion
    Few additional benefits would derive from including tribal lands of 
the San Carlos Apache, Mescalero Apache Tribe, and the Navajo Nation in 
a critical habitat designation for the owl beyond what will be achieved 
through the implementation of their management plans. The principal 
benefit of any designated critical habitat is that activities in and 
affecting such habitat require consultation under section 7 of the Act. 
Such consultation would ensure that adequate protection is provided to 
avoid destruction or adverse modification of critical habitat. If 
adequate protection can be provided in another manner, the benefits of 
including any area in critical habitat are minimal. We previously 
determined that the tribal management plans for the owl conform with 
the Mexican Spotted Owl Recovery Plan and provide a conservation 
benefit. Thus, we tentatively conclude that few regulatory benefits to 
the owl would be gained from a designation of critical habitat on these 
tribal lands.

[[Page 65023]]

    Another possible benefit is that the designation of critical 
habitat can serve to educate the public regarding the potential 
conservation value of an area, and this may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for certain species. However, the tribes are 
already working with the Service to address the habitat needs of the 
species, and are fully aware of the conservation value of their lands. 
Thus, the educational benefits that might follow critical habitat 
designation, such as providing information on areas that are important 
for the long-term survival and conservation of the species, have 
already been realized. Further, the same or greater educational 
benefits will be provided to these lands if they are excluded from the 
designation, because the management plans provide for conservation 
benefits above any that would be provided by designating critical 
(2) Benefits of Exclusion
    The benefits of excluding the tribal lands of the San Carlos 
Apache, Mescalero Apache Tribe, and the Navajo Nation from designated 
critical habitat appear to be more significant. We tentatively conclude 
that not designating critical habitat on these areas would have 
substantial benefits including: (1) The furtherance of our Federal 
Trust obligations and our deference to the tribes to develop and 
implement Tribal conservation and natural resource management plans for 
their lands and resources; (2) the establishment and maintenance of 
effective working relationships to promote the conservation of the owl 
and its habitat; (3) the allowance for continued meaningful 
collaboration and cooperation in scientific studies to learn more about 
the conservation needs of the species; and (4) by providing 
conservation benefits from the tribal management plans to the forest 
ecosystem upon which the owl depends which exceed those that would be 
provided by the designation of critical habitat.
    In summary, we view each of the management plans as a continuance 
of cooperative and productive relationships that have and will continue 
to provide additional substantive conservation benefits to the owl and 
its habitat. The additional benefits would be less likely if critical 
habitat was designated because the tribes view critical habitat as an 
intrusion on their ability to manage their own lands and trust 
resources. We tentatively conclude that the benefits of including these 
tribal lands in critical habitat are small or nonexistent due to the 
protection afforded the owl through tribal management plans. These 
plans provide benefits to the owl through fire abatement projects, 
which reduce the risk of catastrophic fire, the primary threat to the 
owl; monitoring; protection of nest sites; and survey efforts. Subject 
to our reanalysis, after considering public comments and the economic 
impacts of the designation, we tentatively conclude that the benefits 
of excluding these areas from being designated as critical habitat for 
the owl are more significant than the benefits of including them, and 
include the continued implementation of tribal owl management plans and 
the continuance of our cooperative working relationships with these 
tribes for the mutual benefit of the owl and other threatened and 
endangered species.

Current Status of Critical Habitat for the Owl

    As a result of the Court orders in Center for Biological Diversity 
v. Norton, we consider critical habitat to be proposed for the owl in 
those areas excluded from the final designation published on February 
1, 2001 (66 FR 8530). Specifically, Forest Service lands in Arizona and 
New Mexico and tribal lands of the San Carlos Apache Tribe, the Navajo 
Nation, and the Mescalero Apache Tribe were excluded from the final 
designation of critical habitat for the owl and are now considered to 
be proposed as critical habitat. Areas designated as critical habitat 
for the owl in the February 1, 2001, final designation remain in effect 
until critical habitat is refinalized, pursuant to the Court's order.
    Section 7(a)(2) of the Act 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 designated or proposed. Activities on Federal lands that may 
affect the owl or its proposed critical habitat will require 
consultation with us pursuant to section 7 of the Act. Actions on 
private or State lands receiving funding or requiring a permit from a 
Federal agency also will be subject to the section 7 consultation 
process if the action may affect proposed critical habitat. Federal 
actions not affecting the species or its proposed critical habitat, as 
well as actions on non-Federal lands that are not federally funded or 
permitted, will not require section 7 consultation. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Federal agencies may request formal 
conferencing on the July 2000 proposed critical habitat with respect to 
Forest Service lands in Arizona and New Mexico and the lands of the San 
Carlos Apache Tribe, the Navajo Nation, and the Mescalero Apache Tribe.
    For areas that were included in the final critical habitat 
designation, section 7(a)(2) of the Act requires Federal agencies, 
including us, to ensure that actions they fund, authorize, or carry out 
do not destroy or adversely modify critical habitat. Individuals, 
organizations, States, local governments, and other non-Federal 
entities are affected by the designation of critical habitat only if 
their actions occur on Federal lands, or require a Federal permit, 
license, or other authorization, or involve Federal funding.


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

    Dated: November 7, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-28483 Filed 11-17-03; 8:45 am]