2008 Federal Register, 73 FR 10860; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: February 28, 2008 (Volume 73, Number 40)]
[Proposed Rules]
[Page 10859-10896]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe08-34]

[[Page 10859]]

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Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Revised Critical Habitat
for the Contiguous United States Distinct Population Segment of the
Canada Lynx (Lynx canadensis); Proposed Rule

[[Page 10860]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2008-0026]
92210-1117-0000-B4]
RIN 1018-AV78

Endangered and Threatened Wildlife and Plants; Revised Critical
Habitat for the Contiguous United States Distinct Population Segment of
the Canada Lynx (Lynx canadensis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
revise designated critical habitat for the contiguous United States
distinct population segment of the Canada lynx (Lynx canadensis) (lynx)
under the Endangered Species Act of 1973, as amended (Act). In the
contiguous United States, the lynx generally inhabits cold, moist
boreal forests. Approximately 42,753 square miles (mi\2\) (110,727
square kilometers (km\2\)) fall within the boundaries of the proposed
revised critical habitat designation. The proposed revised designation
would add an additional 40,913 mi\2\ (105,959 km\2\) to the existing
critical habitat designation of 1,841 mi\2\ (4,768 km\2\). The proposed
revised critical habitat is located in Boundary County, Idaho;
Aroostook, Franklin, Penobscot, Piscataquis, and Somerset Counties in
Maine; Cook, Koochiching, Lake, and St. Louis Counties in Minnesota;
Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Missoula,
Pondera, Powell, Teton, Gallatin, Park, Sweetgrass, Stillwater, and
Carbon Counties in Montana; Chelan and Okanogan Counties in Washington;
and Park, Teton, Fremont, Sublette, and Lincoln Counties in Wyoming.

DATES: We will accept comments received or postmarked on or before
April 28, 2008. We must receive requests for public hearings, in
writing, at the address shown in the ADDRESSES section by April 14,
2008.

ADDRESSES: You may submit comments 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-R6-ES-2008-0026]; 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 faxed comments. We will post all
comments on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Public
Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana
Ecological Services Office, 585 Shepard Way, Helena, MT, 59601;
telephone 406-449-5225. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this proposed rule. We particularly seek
comments concerning:
(1) The reasons why we should or should not designate specific
habitat as ``critical habitat'' under section 4 of the Act (16 U.S.C.
1531 et seq.).
(2) Specific information on:
The amount and distribution of lynx habitat,
What areas occupied at the time of listing and that
contain features essential for the conservation of the species we
should include in the designation and why that might be so, and
What areas not occupied at the time of listing are
essential to the conservation of the species and why that might be so.
(3) Comments or information that may assist us with identifying or
clarifying the primary constituent element.
(4) Land use designations and current or planned activities in the
areas proposed as critical habitat and their possible impacts on
proposed revised critical habitat.
(5) Whether Tribal lands in the Northern Rockies, Maine, and
Minnesota units need to be included as critical habitat pursuant to
Secretarial Order Number 3206.
(6) Whether lands the Southern Rocky Mountains contain the physical
and biological features that are essential for the conservation of the
species and the basis for why that might be so
(7) Whether lands in any unoccupied areas, such as the ``Kettle
Range'' in Ferry County, Washington, are essential to the conservation
of lynx and the basis for why that might be so.
(8) How the proposed boundaries of the revised critical habitat
could be refined to more closely circumscribe the boreal forest
landscapes occupied by lynx. Refined maps that accurately depict the
specific vegetation types on all land ownerships are not readily
available. We are especially interested in this information for the
Greater Yellowstone Area unit.
(9) Whether our proposed revised critical habitat for the lynx
should be altered in any way to account for climate change.
(10) Whether the proposed revised critical habitat designation for
the lynx should include private lands, or whether the proposed Federal
lands are sufficient to conserve lynx.
(11) Whether U.S. Forest Service (USFS) lands that occur in the
wildland-urban-interface (WUI) should be excluded from critical habitat
under section 4(b)(2) of the Act so that fuels-reduction projects
designed to protect human life and property from wildfire would not be
impeded in any way in these areas.
(12) Whether the Greater Yellowstone Area is essential to the
conservation of lynx. Lynx in this proposed unit occur at lower
densities than in other proposed units, and the population is not
connected to Canada, which is an important source of lynx in the United
States.
(13) Any foreseeable economic, national security, or other
potential impacts resulting from the proposed designation and, in
particular, any impacts on small entities, and the benefits of
including or excluding areas that exhibit these impacts.
(14) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
The size of the individual Indian reservation lands in the Northern
Rockies, Maine, and Minnesota units is relatively small. As a result,
we believe conservation of the lynx can be achieved by limiting the
designation to the other lands in the proposal without including Tribal
lands (see ``Relationship of Critical Habitat to Tribal Lands'' below).
The southern Rocky Mountains in Colorado, Utah, and southern
Wyoming are disjunct from other lynx habitats in the United States and
Canada. The nearest lynx population occurs in the Greater Yellowstone
Area (GYA), which is a small, low density population also disjunct from
other lynx populations and is unlikely to regularly supply dispersing
lynx to the Southern Rockies. Native lynx were functionally extirpated

[[Page 10861]]

from their historic range in Colorado and southern Wyoming by the time
the lynx was listed as a threatened species under the Act in 2000. In
1999, the State of Colorado began an intensive effort to reintroduce
lynx. Although it is too early to determine whether the introduction
will result in a self-sustaining population, the reintroduced lynx have
produced kittens and now are distributed throughout the lynx habitat in
Colorado and southern Wyoming. These animals are not designated as an
experimental population under section 10(j) of the Act. Although
Colorado's reintroduction effort is an important step toward the
recovery of lynx, we are not proposing revised critical habitat in the
Southern Rockies because of the current uncertainty that a self-
sustaining lynx population will become established.
The Kettle Range in Washington historically supported lynx
populations (Stinson 2001). However, although boreal forest habitat
within the Kettle Range appears of high quality for lynx, there is no
evidence that the Kettle Range is currently occupied by a lynx
population nor has there been evidence of reproducing lynx in the
Kettle Range in the past two decades (Koehler 2008).
Fuels-reduction projects in the WUI may degrade lynx habitat by
reducing its ability to support snowshoe hares. For this reason, if WUI
areas were designated as revised critical habitat, fuels-reduction
projects may be impaired or delayed as a result of requirements under
section 7(a)(2) of the Act, which could lead to reduced effectiveness
of the fuels-reduction, and increased risk to human life and property.
Mapped WUI areas can be viewed on the Internet at: ftp://
ftp2.fs.fed.us/incoming/r1/FWS/wui--1mile--buffer--oct06.pdf.
In addition to public comments received on this proposed rule,
between the proposed and final rules, the Service will analyze the
following for its relevance in revising critical habitat for lynx: (1)
Comments received in response to our initiation of a 5-year review for
lynx; (2) a new study addressing effects of snowmobile trails on coyote
movements within lynx home ranges (Kolbe et al. 2007, pp. 1409-1418);
(3) a study on lynx prey selection (Squires and Ruggiero 2007, pp. 310-
315); (4) new reports we have received on the numbers and distribution
of lynx in some locations; (5) a newly released study on the effects of
climate change on snowpack in western mountains and how that may affect
lynx, snowshoe hares, and their habitats (Gonzalez et al. 2007); and
(6) additional new studies (e.g., Knowles et al. 2006 and Danby and
Hick 2007) that may provide insight on changes to lynx habitat. If
necessary and appropriate, revisions to this proposed rule will be made
to address this information. We will also be revising the economic
analysis and environmental assessment prepared for the previous
designation and providing drafts of the new economic analysis and
environmental assessment to the public before finalizing this proposal.
On the basis of public comment, during the development of the
revised final rule we may find, among other things, that areas proposed
are not essential to the conservation of the species, are appropriate
for exclusion under section 4(b)(2) of the Act, or are not appropriate
for exclusion. In all of these cases, this information will be
incorporated into the revised final designation. Further, we may find
as a result of public comments that areas not proposed should also be
designated as critical habitat. Final management plans that address the
conservation of the lynx must be submitted to us during the public
comment period so that we can take them into consideration when making
our final critical habitat determination.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section. We will not accept anonymous comments; your
comment must include your first and last name, city, State, country,
and postal (zip) code. Finally, we will not consider hand-delivered
comments that we do not receive, or mailed comments that are not
postmarked, by the date specified in the DATES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in addition to the required items
specified in the previous paragraph, such as your street address, phone
number, or e-mail address, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this revised proposed rule, 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, Montana Ecological Services Office (see FOR FURTHER
INFORMATION CONTACT). Maps of the proposed revised critical habitat are
also available on the Internet at http://mountain-prairie.fws.gov/
species/mammals/lynx/.

Background

It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this proposed rule. For more
information on the lynx refer to the final listing rule published in
the Federal Register on March 24, 2000 (65 FR 16052), and the
clarification of findings published in the Federal Register on July 3,
2003 (68 FR 40076).
Canada lynx are medium-sized cats, generally measuring 30 to 35
inches (in) (75 to 90 centimeters (cm)) long and weighing 18 to 23
pounds (8 to 10.5 kilograms) (Quinn and Parker 1987, Table 1). They
have large, well-furred feet and long legs for traversing snow; tufts
on the ears; and short, black-tipped tails.
Lynx are highly specialized predators of snowshoe hare (Lepus
americanus) (McCord and Cardoza 1982, p. 744; Quinn and Parker 1987,
pp. 684-685; Aubry et al. 2000, pp. 375-378). Lynx and snowshoe hares
are strongly associated with what is broadly described as boreal forest
(Bittner and Rongstad 1982, p. 154; McCord and Cardoza 1982, p. 743;
Quinn and Parker 1987, p. 684; Agee 2000, p. 39; Aubry et al. 2000, pp.
378-382; Hodges 2000a, pp. 136-140 and 2000b, pp. 183-191; McKelvey et
al. 2000b, pp. 211-232). The predominant vegetation of boreal forest is
conifer trees, primarily species of spruce (Picea spp.) and fir (Abies
spp.) (Elliot-Fisk 1988, pp. 34-35, 37-42). In the contiguous United
States, the boreal forest types transition to deciduous temperate
forest in the Northeast and Great Lakes and to subalpine forest in the
west (Agee 2000, pp. 40-41). Lynx habitat can generally be described as
moist boreal forests that have cold, snowy winters and a snowshoe hare
prey base (Quinn and Parker 1987, p. 684-685; Agee 2000, pp. 39-47;
Aubry et al. 2000, pp. 373-375; Buskirk et al. 2000b, pp. 397-405;
Ruggiero et al. 2000, pp. 445-447). In mountainous areas, the boreal
forests that lynx use are characterized by scattered moist forest types
with high hare densities in a matrix of other habitats (e.g.,
hardwoods, dry forest, non-forest) with low hare densities. In these
areas, lynx incorporate the matrix habitat (non-boreal forest habitat
elements) into their home ranges and use it for traveling between
patches of boreal forest that support high hare densities where most
foraging occurs.

[[Page 10862]]

Snow conditions also determine the distribution of lynx (Ruggiero
et al. 2000, pp. 445-449). Lynx are morphologically and physiologically
adapted for hunting snowshoe hares and surviving in areas that have
cold winters with deep, fluffy snow for extended periods. These
adaptations provide lynx a competitive advantage over potential
competitors, such as bobcats (Lynx rufus) or coyotes (Canis latrans)
(McCord and Cardoza 1982, p. 748; Buskirk et al. 2000a, pp. 86-95;
Ruediger et al. 2000, p. 1-11; Ruggiero et al. 2000, pp. 445, 450).
Bobcats and coyotes have a higher foot load (more weight per surface
area of foot), which causes them to sink into the snow more than lynx.
Therefore, bobcats and coyotes cannot efficiently hunt in fluffy or
deep snow and are at a competitive disadvantage to lynx. Long-term snow
conditions presumably limit the winter distribution of potential lynx
competitors such as bobcats (McCord and Cardoza 1982, p. 748) or
coyotes.

Lynx Habitat Requirements

Because of the patchiness and temporal nature of high quality
snowshoe hare habitat, lynx populations require large boreal forest
landscapes to ensure that sufficient high quality snowshoe hare habitat
is available and to ensure that lynx may move freely among patches of
suitable habitat and among subpopulations of lynx. Populations that are
composed of a number of discrete subpopulations, connected by
dispersal, are called metapopulations (McKelvey et al. 2000c, p. 25).
Individual lynx maintain large home ranges (reported as generally
ranging between 12 to 83 mi\2\ (31 to 216 km\2\)) (Koehler 1990, p.
847; Aubry et al. 2000, pp. 382-386; Squires and Laurion 2000, pp. 342-
347; Squires et al. 2004b, pp. 13-16, Table 6; Vashon et al. 2005a, pp.
7-11). The size of lynx home ranges varies depending on abundance of
prey, the animal's gender and age, the season, and the density of lynx
populations (Koehler 1990, p. 849; Poole 1994, pp. 612-616; Slough and
Mowat 1996, pp. 951, 956; Aubry et al. 2000, pp. 382-386; Mowat et al.
2000, pp. 276-280; Vashon et al. 2005a, pp. 9-10). When densities of
snowshoe hares decline, for example, lynx enlarge their home ranges to
obtain sufficient amounts of food to survive and reproduce.
In the contiguous United States, the boreal forest landscape is
naturally patchy and transitional because it is the southern edge of
the boreal forest range. This generally limits snowshoe hare
populations in the contiguous United States from achieving densities
similar to those of the expansive northern boreal forest in Canada
(Wolff 1980, pp. 123-128; Buehler and Keith 1982, pp. 24, 28; Koehler
1990, p. 849; Koehler and Aubry 1994, p. 84). Additionally, the
presence of more snowshoe hare predators and competitors at southern
latitudes may inhibit the potential for high-density hare populations
(Wolff 1980, p. 128). As a result, lynx generally occur at relatively
low densities in the contiguous United States compared to the high lynx
densities that occur in the northern boreal forest of Canada (Aubry et
al. 2000, pp. 375, 393-394) or the densities of species such as the
bobcat, which is a habitat and prey generalist.
Lynx are highly mobile and generally move long distances (greater
than 60 mi (100 km)) (Aubry et al. 2000, pp. 386-387; Mowat et al.
2000, pp. 290-294). Lynx disperse primarily when snowshoe hare
populations decline (Ward and Krebs 1985, pp. 2821-2823; O'Donoghue et
al. 1997, pp. 156, 159; Poole 1997, pp. 499-503). Subadult lynx
disperse even when prey is abundant (Poole 1997, pp. 502-503),
presumably to establish new home ranges. Lynx also make exploratory
movements outside their home ranges (Aubry et al. 2000, p. 386; Squires
et al. 2001, pp. 18-26).
The boreal forest landscape is naturally dynamic. Forest stands
within the landscape change as they undergo succession after natural or
human-caused disturbances such as fire, insect epidemics, wind, ice,
disease, and forest management (Elliot-Fisk 1988, pp. 47-48; Agee 2000,
pp. 47-69). As a result, lynx habitat within the boreal forest
landscape is typically patchy because the boreal forest contains stands
of differing ages and conditions, some of which are suitable as lynx
foraging or denning habitat (or will become suitable in the future due
to forest succession) and some of which serve as travel routes for lynx
moving between foraging and denning habitat (McKelvey et al. 2000a, pp.
427-434; Hoving et al. 2004, pp. 290-292).
Snowshoe hares comprise a majority of the lynx diet (Nellis et al.
1972, pp. 323-325; Brand et al. 1976, pp. 422-425; Koehler 1990, p.
848; Apps 2000, pp. 358-359, 363; Aubry et al. 2000, pp. 375-378; Mowat
et al. 2000, pp. 267-268; von Kienast 2003, pp. 37-38; Squires et al.
2004b, p. 15, Table 8). When snowshoe hare populations are low, female
lynx produce few or no kittens that survive to independence (Nellis et
al. 1972, pp. 326-328; Brand et al. 1976, pp. 420, 427; Brand and Keith
1979, pp. 837-838, 847; Poole 1994, pp. 612-616; Slough and Mowat 1996,
pp. 953-958; O'Donoghue et al. 1997, pp. 158-159; Aubry et al. 2000,
pp. 388-389; Mowat et al. 2000, pp. 285-287). Lynx prey
opportunistically on other small mammals and birds, particularly during
lows in snowshoe hare populations, but alternate prey species may not
sufficiently compensate for low availability of snowshoe hares,
resulting in reduced lynx populations (Brand et al. 1976, pp. 422-425;
Brand and Keith 1979, pp. 833-834; Koehler 1990, pp. 848-849; Mowat et
al. 2000, pp. 267-268).
In northern Canada, lynx populations fluctuate in response to the
cycling of snowshoe hare populations (Hodges 2000a, pp. 118-123; Mowat
et al. 2000, pp. 270-272). Although snowshoe hare populations in the
northern portion of their range show strong, regular population cycles,
these fluctuations are generally much less pronounced in the southern
portion of their range in the contiguous United States (Hodges 2000b,
pp. 165-173). In the contiguous United States, the degree to which
regional local lynx population fluctuations are influenced by local
snowshoe hare population dynamics is unclear. However, it is
anticipated that because of natural fluctuations in snowshoe hare
populations, there will be periods when lynx densities are extremely
low.
Because lynx population dynamics, survival, and reproduction are
closely tied to snowshoe hare availability, snowshoe hare habitat is a
component of lynx habitat. Lynx generally concentrate their foraging
and hunting activities in areas where snowshoe hare populations are
high (Koehler et al. 1979, p. 442; Ward and Krebs 1985, pp. 2821-2823;
Murray et al. 1994, p. 1450; O'Donoghue et al. 1997, pp. 155, 159-160
and 1998, pp. 178-181). Snowshoe hares are most abundant in forests
with dense understories that provide forage, cover to escape from
predators, and protection during extreme weather (Wolfe et al. 1982,
pp. 665-669; Litvaitis et al. 1985, pp. 869-872; Hodges 2000a, pp. 136-
140 and 2000b, pp. 183-195). Generally, hare densities are higher in
regenerating, earlier successional forest stages because they have
greater understory structure than mature forests (Buehler and Keith
1982, p. 24; Wolfe et al. 1982, pp. 665-669; Koehler 1990, pp. 847-848;
Hodges 2000b, pp. 183-195; Homyack 2003, p. 63, 141; Griffin 2004, pp.
84-88). However, snowshoe hares can be abundant in mature forests with
dense understories (Griffin 2004, pp. 53-54).
Within the boreal forest, lynx den sites are located where coarse
woody debris, such as downed logs and windfalls, provides security and
thermal cover for lynx kittens (McCord and Cardoza 1982, pp. 743-744;
Koehler

[[Page 10863]]

1990, pp. 847-849; Slough 1999, p. 607; Squires and Laurion 2000, pp.
346-347; Organ 2001). The amount of structure (e.g., downed, large,
woody debris) appears to be more important than the age of the forest
stand for lynx denning habitat (Mowat et al. 2000, pp. 10-11).

Future of Lynx Habitat

In 2003, we determined that climate change was not a threat to lynx
because the best available science we had at that time (Hoving 2001)
was too uncertain in nature (68 FR 40083). Since that time, new
information on regional climate changes and potential effects to lynx
habitat has been developed (e.g., Gonzalez et al. 2007, entire; Knowles
et al. 2006, pp. 4545-4559; Danby and Hick 2007, pp. 358-359) that
suggests that climate change may be an issue of concern for the future
conservation of lynx. This information, combined with the information
in Hoving 2001, still needs to be evaluated further to determine how
climate change might affect lynx and lynx habitat. We are evaluating
this information in the 5-year review we are conducting for lynx.
At this time, we find it appropriate to propose revised critical
habitat in areas that are occupied and currently contain the physical
and biological features essential to the conservation of the lynx.
Revisions to the critical habitat designation may be necessary in the
future to accommodate shifts in the occupied range of the lynx. To the
extent lynx distribution and habitat is likely to shift upward in
elevation within its currently occupied range as the temperatures
increase (Gonzalez et al. 2007, pp. 7, 13-14,19), the proposed revised
critical habitat units include the highest-elevation habitats that lynx
would be able to use in that event.

Previous Federal Actions

For more information on previous Federal actions concerning the
lynx, refer to the final listing rule published in the Federal Register
on March 24, 2000 (65 FR 16052), the clarification of findings
published in the Federal Register on July 3, 2003 (68 FR 40076), and
the final rule designating critical habitat for lynx published in the
Federal Register on November 9, 2006 (71 FR 66007). On July 20, 2007,
the Service announced that we would review the November 9, 2006 final
rule after questions were raised about the integrity of scientific
information used and whether the decision made was consistent with the
appropriate legal standards. Based on our review of the previous final
critical habitat designation, we have determined that it is necessary
to revise critical habitat, and this rule proposes those revisions. On
January 15, 2008, the U.S. District Court for the District of Columbia
issued an order stating the Service's deadlines for a proposed rule for
revised critical habitat by February 15, 2008, and a final rule for
revised critical habitat by February 15, 2009.

Critical Habitat

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) That may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing activities that result in the destruction or adverse
modification of critical habitat. Section 7 of the Act requires
consultation on Federal actions that may affect critical habitat. The
designation of critical habitat does not affect land ownership or
establish a refuge, wilderness, reserve, preserve, or other
conservation area. Such designation does not allow the government or
public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by the
landowner. Where the landowner seeks or requests Federal agency funding
or authorization of an activity that may affect a listed species or
critical habitat, the consultation requirements of section 7 would
apply. Nonetheless, even in the event a project with a Federal nexus
may result in the destruction or adverse modification of critical
habitat, the landowner's obligation is not to restore or recover the
species, but to implement reasonable and prudent alternatives to avoid
destruction or adverse modification of critical habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain physical and biological features that are essential to the
conservation of the species. Consistent with this requirement, the
Service identifies, to the extent known using the best scientific data
available, habitat areas on which are found the physical and biological
features essential, as defined at 50 CFR 424.12(b), and identifies the
quantity and spatial arrangement of such areas to ensure that the areas
designated as critical habitat are essential for the conservation of
the species. Occupied habitat that contains the physical and biological
features essential to the conservation of the species meets the
definition of critical habitat only if those features may require
special management considerations or protection.
Under the Act, we can designate unoccupied areas as critical
habitat only when we determine that the best available scientific data
demonstrate that the designation of that area is essential to the
conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
These documents require our biologists, to the extent consistent with
the Act and with the use of the best scientific data available, to use
primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be proposed as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.

[[Page 10864]]

Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that we may
eventually determine, based on scientific data not now available to the
Service, are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be required for
recovery of the species.
Areas that support populations, but are outside the critical
habitat designation, may continue to be subject to conservation actions
we implement under section 7(a)(1) of the Act. They are also subject to
the regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available scientific
information at the time of the agency action. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), section 7 consultation, or other species
conservation planning efforts if new information calls for a different
outcome.

Methods

As required by section 4(b)(2) of the Act, we use the best
scientific data available to determine areas occupied at the time of
listing that contain the features essential to the conservation of the
lynx. We have reviewed the approach to the conservation of the lynx
provided in its recovery outline (Service 2005, entire) and information
from State, Federal, and Tribal agencies, and from academia and private
organizations that have collected scientific data on lynx. The Service
also obtained information about critical habitat for lynx in 2005 and
2006 during development of rules for lynx critical habitat. The Service
also initiated a 5-year review for the lynx on April 18, 2007 (72 FR
19549). Information gathered for that purpose will be used in
completing our final designation.
We have used information we reviewed for the prior designation of
critical habitat, including data in reports submitted by researchers
holding recovery permits under section 10(a)(1)(A) of the Act, research
published in peer-reviewed articles and presented in academic theses,
agency reports, unpublished data, and various Geographic Information
System (GIS) data layers (e.g., land cover type information, land
ownership information, snow depth information, topographic information,
locations of lynx obtained from radio- or Global Positioning System
(GPS) collars, and locations of lynx confirmed via deoxyribonucleic
acid (DNA) analysis or other verified records).

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12(b), in determining which areas occupied at
the time of listing to propose as critical habitat, we consider the
physical and biological features that are essential to the conservation
of the species to be the primary constituent elements (PCEs) laid out
in the appropriate quantity and spatial arrangement for conservation of
the species. In general, PCEs include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
When considering the designation of critical habitat, we must focus
on the principal biological or physical constituent elements within the
defined area that are essential to the conservation of the species. As
previously stated, we consider the physical and biological features
that are essential to the conservation of the species to be the primary
constituent elements (PCEs) laid out in the appropriate quantity and
spatial arrangement for conservation of the species. As such, we derive
the PCEs required for lynx from its biological needs. The area proposed
for designation as revised critical habitat provides boreal forest
habitat for breeding, non-breeding, and dispersing lynx in
metapopulations across their range in the contiguous United States. We
are not proposing any areas solely because they provide habitat for
dispersing animals because the areas we are proposing serve a variety
of functions that include acting as a source of dispersing animals and
providing habitat that serves as travel corridors to facilitate
dispersal and exploratory movements. The primary constituent elements
and therefore the resulting physical and biological features essential
for the conservation of the species were determined from studies of
lynx and snowshoe hare ecology.

Space for Individual and Population Growth and Normal Behavior--Boreal
Forest Landscapes

Lynx populations respond to biotic and abiotic factors at different
scales. At the regional scale, snow conditions, boreal forest, and
competitors (especially bobcat) influence the species' range (Aubry et
al. 2000, pp. 378-380; McKelvey et al. 2000b, pp. 242-253; Hoving et
al. 2005, p. 749). At the landscape scale within each region, natural
and human-caused disturbance processes (e.g., fire, wind, insect
infestations, and forest management) influence the spatial and temporal
distribution of lynx populations by affecting the distribution of good
habitat for snowshoe hares (Agee 2000, pp. 47-73; Ruediger et al. 2000,
pp. 1-3, 2-2, 2-6, 7-3). At the stand-level scale, quality, quantity,
and juxtaposition of habitats influence home range size, productivity,
and survival (Aubry et al. 2000, pp. 380-390; Vashon et al. 2005a, pp.
9-11). At the substand scale, spatial distribution, abundance of prey,
and microclimate influence movements, hunting behavior, and den and
resting site locations.
All of the components of the physical and biological features of
proposed revised critical habitat for lynx are found within large
landscapes in what is broadly described as the boreal forest or cold
temperate forest (Frelich and Reich 1995, p. 325; Agee 2000, pp. 43-
46). The primary constituent element is broadly described as the boreal
forest landscape. In the contiguous United States, the boreal forest is
more transitional than the true boreal forest of northern Canada and
Alaska (Agee 2000, pp. 43-46). This difference is because the boreal
forest is at its southern limits in the contiguous United States, where
it transitions to deciduous temperate forest in the Northeast and Great
Lakes and subalpine forest in the west (Agee 2000, pp. 43-46). We use
the term ``boreal forest'' because it generally encompasses most of the
vegetative descriptions of the transitional forest types that comprise
lynx habitat in the contiguous United States (Agee 2000, pp. 40-41).
At a regional scale, lynx habitat exists in areas that generally
support deep snow throughout the winter and boreal forest vegetation
types (see below for more detail). In eastern North America,

[[Page 10865]]

lynx distribution is strongly associated with areas of deep snowfall
(greater than 105 in (268 cm) of mean annual snowfall) and 40 mi\2\
(100 km\2\) landscapes with a high proportion of regenerating forest
(Hoving 2001, pp. 75, 143). The broad geographic distribution of lynx
in eastern North America is most influenced by snowfall, but within
areas of similarly deep snowfall, measures of forest succession become
more important factors in determining lynx distribution (Hoving et al.
2004, p. 291).
Boreal forests used by lynx are cool, moist, and dominated by
conifer tree species, primarily spruce and fir (Agee 2000, pp. 40-46;
Aubry et al. 2000, pp. 378-383; Ruediger et al. 2000, pp. 4-3, 4-8, 4-
11, 4-25, 4-26, 4-29, 4-30). Boreal forest landscapes used by lynx are
a heterogeneous mosaic of vegetative cover types and successional
forest stages created by natural and human-caused disturbances
(McKelvey et al. 2000a, pp. 426, 434). Periodic vegetation disturbances
stimulate development of dense understory or early successional habitat
for snowshoe hares (Ruediger et al. 2000, pp. 1-3, 1-4, 7-4, 7-5). In
Maine, lynx were positively associated with landscapes clearcut 15 to
25 years previously (Hoving et al. 2004, p. 291).
The overall quality of the boreal forest landscape matrix and the
juxtaposition of stands in suitable condition within that landscape is
important for both lynx and snowshoe hares in that it influences
connectivity or movements between suitable stands, availability of food
and cover, and spatial structuring of populations or subpopulations
(Hodges 2000b, pp. 181-195; McKelvey et al. 2000a, pp. 431-432; Walker
2005, p. 79). For example, lynx foraging habitat must be near denning
habitat to allow females to adequately provide for dependent kittens,
especially when the kittens are relatively immobile. In north-central
Washington, hare densities were higher in landscapes with an abundance
of dense boreal forest interspersed with small patches of open habitat,
in contrast to landscapes composed primarily of open forest
interspersed with few dense vegetation patches (Walker 2005, p. 79).
Similarly, in northwest Montana, connectivity of dense patches within
the forest matrix benefited snowshoe hares (Ausband and Baty 2005, p.
209). In mountainous areas, lynx appear to prefer flatter slopes (Apps
2000, p. 361; McKelvey et al. 2000d, p. 333; von Kienast 2003, p. 21,
Table 2; Maletzke 2004, pp. 17-18).
Individual lynx require large portions of boreal forest landscapes
to support their home ranges and to facilitate dispersal and
exploratory travel. The size of lynx home ranges is believed to be
strongly influenced by the quality of the habitat, particularly the
abundance of snowshoe hares, in addition to other factors such as
gender, age, season, and density of the lynx population (Aubry et al.
2000, pp. 382-385; Mowat et al. 2000, pp. 276-280). Generally, females
with kittens have the smallest home ranges while males have the largest
home ranges (Moen et al. 2004, p. 11). Reported home range size varies
from 12 mi\2\ (31 km\2\) for females and 26 mi\2\ (68 km\2\) for males
in Maine (Vashon et al. 2005a, p. 7), 8 mi\2\ (21 km\2\) for females
and 119 mi\2\ (307 km\2\) for males in Minnesota (Moen et al. 2005, p.
12), and 34 mi\2\ (88 km\2\) for females and 83 mi\2\ (216 km\2\) for
males in northwest Montana (Squires et al. 2004b, pp. 15-16).
The dynamic nature of boreal forest landscapes means that lynx home
ranges will incorporate a variety of forest stands that are in
different stages of succession and have differing potential to produce
prey. In addition, due to the naturally marginal nature of lynx habitat
within the DPS, the moist boreal forest types that snowshoe hares
prefer often occur in patches dissected or surrounded by matrix
habitat. Lynx use the matrix habitat primarily as travel routes between
foraging areas and denning areas. Although they are not dependent on
the specific vegetative condition of these habitats (i.e., they are not
sensitive to forest management practices), the importance of these
areas as travel routes makes them necessary habitat components for
lynx.
Forest Type Associations
Maine
Lynx are more likely to occur in 40 mi\2\ (100 km\2\) landscapes
with regenerating forest, and less likely to occur in landscapes with
recent clearcut or partial harvest, (Hoving et al. 2004, pp. 291-292).
Lynx in Maine select softwood (spruce and fir) dominated, regenerating
stands (Vashon et al. 2005a, p. 8). Regenerating stands used by lynx
generally develop 15-30 years after forest disturbance and are
characterized by dense horizontal structure and high stem density
within a meter of the ground. These habitats support high snowshoe hare
densities (Homyack 2003, p. 63; Fuller and Harrison 2005, pp. 716, 719;
Vashon et al. 2005a, pp. 10-11). At the stand scale, lynx in
northwestern Maine selected older (11 to 26 year-old), tall (4.6 to 7.3
m (15 to 24 ft)), regenerating clearcut stands and older (11 to 21
year-old), partially harvested stands (A. Fuller, University of Maine,
unpubl. data).
Minnesota
In Minnesota, lynx primarily occur in the Northern Superior Uplands
Ecological Section of the Laurentian Mixed Forest Province.
Historically, this area was dominated by red pine (Pinus resinosa) and
white pine (Pinus strobus) mixed with aspen (Populus spp.), paper birch
(Betula papyrifera), spruce, balsam fir (Abies balsamifera), and jack
pine (Pinus banksiana) (Minnesota Department of Natural Resources
[Minnesota DNR] 2003, p. 2).
Preliminary research suggests lynx in Minnesota generally use
younger stands (less than 50 years) with a conifer component in greater
proportion than their availability (R. Moen, University of Minnesota,
unpubl. data). Lynx prefer predominantly upland forests dominated by
red pine, white pine, jack pine, black spruce (Picea mariana), paper
birch, quaking aspen (Populus tremuloides), or balsam fir (R. Moen,
unpubl. data).
Washington
In the North Cascades in Washington, the majority of lynx
occurrences were found above 1,250 m (4,101 ft) elevation (McKelvey et
al. 2000b, p. 243 and 2000d, p. 321; von Kienast 2003, p. 28, Table 2;
Maletzke 2004, p. 17). In this area, lynx selected Engelman spruce
(Picea engelmanii)-subalpine fir (Abies lasiocarpa) forest cover types
in winter (von Kienast 2003, p. 28; Maletzke 2004, pp. 16-17).
Lodgepole pine (Pinus contorta) is a dominant tree species in the
earlier successional stages of these climax cover types. Seral
lodgepole stands contained dense understories and therefore received
high use by snowshoe hares and lynx (Koehler 1990, pp. 847-848;
McKelvey et al. 2000d, pp. 332-335).
Northern Rockies
In the Northern Rocky Mountains, the majority of lynx occurrences
are associated with the Rocky Mountain Conifer Forest vegetative class
(Kuchler 1964, p. 5; McKelvey et al. 2000b, p. 246) and occur above
1,250 m (4,101 ft) elevation (Aubry et al. 2000, pp. 378-380; McKelvey
et al. 2000b, pp. 243-245). The dominant vegetation that constitutes
lynx habitat in these areas is subalpine fir, Engelman spruce, and
lodgepole pine (Aubry et al. 2000, p. 379; Ruediger et al. 2000, pp. 4-
8--4-10). As in the Cascades, lodgepole pine is an earlier successional
stage of subalpine fir and Engelman spruce climax forest cover types.
Greater Yellowstone Area
Lynx habitat in the GYA is similar to the Northern Rockies in that
lynx

[[Page 10866]]

occurrences are generally associated with the Rocky Mountain Conifer
Forest vegetative class. The primary areas of lynx occurrence in this
unit occur between 7,382 and 9,843 ft (2,250 and 3,000 m) elevation
(Aubry et al. 2000, p. 379; McKelvey et al. 2000b, Figure 8.18).
However, lynx are not limited to these elevation zones. The dominant
vegetation that constitutes lynx habitat in these areas is subalpine
fir, Engelman spruce, and lodgepole pine (Aubry et al. 2000, pp. 378-
382; Ruediger et al. 2000, pp. 1-2, 1-3; Murphy et al. 2004, pp. 9-11).
Lodgepole pine is an earlier successional stage of subalpine fir and
Engelman spruce cover types. The vegetation characteristics in the GYA
that support snowshoe hare populations (and form the basis for lynx
populations) are typically found in a widely scattered mosaic of matrix
habitat types (Murphy et al. 2005, p. 8-11; Hodges and Mills 2005, p.
6; Agee 2000, p. 48). In the GYA, lynx exploit hare populations in
disjunct patches of mesic boreal forest that support relatively dense
understories (Hodges and Mills 2005, pp. 4-6). In most cases, lynx home
ranges in the GYA will by necessity incorporate habitat that is not
typically considered lynx foraging habitat, and is used primarily for
travel.

Food, Water, Air, Light, Minerals, Or Other Nutritional Or
Physiological Requirements

a. Snowshoe Hares (Food)
Snowshoe hare density is the most important factor explaining the
persistence of lynx populations (Steury and Murray 2004, p. 136). A
minimum snowshoe hare density necessary to maintain a persistent,
reproducing lynx population within the contiguous United States has not
been determined, although Ruggiero et al. (2000, pp. 446-447) suggested
that at least 0.2 hares per acre (0.5 hares per hectare) may be
necessary. Steury and Murray (2004, p. 137) modeled lynx and snowshoe
hare populations and predicted that a minimum of 0.4 to 0.7 hares per
acre (1.1 to 1.8 hares per hectare) was required for persistence of a
reintroduced lynx population in the southern portion of the lynx range.
The boreal forest landscape must contain a mosaic of forest stand
successional stages to sustain lynx populations over the long term as
the condition of individual stands changes over time. If the vegetation
potential (or climax forest type) of a particular forest stand is
conducive to supporting abundant snowshoe hares, it likely will also go
through successional phases that are unsuitable as lynx foraging or
denning habitat (Agee 2000, pp. 62-72; Buskirk et al. 2000b, pp. 403-
408). For example, a boreal forest stand where there has been recent
disturbance, such as fire or timber harvest, that has resulted in
little or no understory structure is unsuitable as snowhoe hare habitat
for lynx foraging. That stand may regenerate into suitable snowshoe
hare (lynx foraging) habitat within 10 to 25 years, depending on local
conditions (Ruediger et al. 2000, pp. 1-3, 1-4, 2-2--2-5). However,
forest management techniques that thin the understory may render the
habitat unsuitable for hares and, thus, for lynx (Ruediger et al. 2000,
pp. 2-4--3-2; Hoving et al. 2004, pp. 291-292). Stands may continue to
provide suitable snowshoe hare habitat for many years until woody stems
in the understory become too sparse as a result of undisturbed forest
succession or management (e.g., clearcutting or thinning). Thus, if the
vegetation potential of the stand is appropriate, a stand that is not
currently in a condition that is suitable to support abundant snowshoe
hares for lynx foraging or coarse woody debris for den sites has the
capability to develop into suitable habitat for lynx and snowshoe hares
with time.
As described previously, snowshoe hares prefer boreal forest stands
that have a dense horizontal understory to provide food, cover, and
security from predators. Snowshoe hares feed on conifers, deciduous
trees, and shrubs (Hodges 2000b, pp. 181-183). Snowshoe hare density is
correlated to understory cover between approximately 3 to 10 ft (1 to 3
m) above the ground or snow level (Hodges 2000b, p. 184, Table 7.5).
Habitats most heavily used by snowshoe hares are stands with shrubs,
stands that are densely stocked, and stands at ages where branches have
more lateral cover (Hodges 2000b, p. 184). In Maine, the snowshoe hare
densities were highest in the stands supporting high conifer stem
densities (Homyack et al. 2004, p. 195; Robinson 2006, p. 69). In
northcentral Washington, snowshoe hare density was highest in 20-year-
old lodgepole pine stands where the average density of trees and shrubs
was 6,415 stems per acre (ac) (15,840 stems/hectare (ha)) (Koehler
1990, p. 848). Generally, earlier successional forest stages support a
greater density of horizontal understory and more abundant snowshoe
hares (Buehler and Keith 1982, p. 24; Wolfe et al. 1982, pp. 668-669;
Koehler 1990, pp. 847-848; Hodges 2000b, pp. 184-191; Griffin 2004, pp.
84-88); however, sometimes mature stands also can have adequate dense
understory to support abundant snowshoe hares (Griffin 2004, p. 88). In
Montana, lynx favor multi-story stands, often in older age classes,
where tree boughs touch the snow surface but where stem density is low
(Squires 2006, p. 4).
In Maine, the highest snowshoe hare densities were found in
regenerating softwood (spruce and fir) and mixed wood stands (Fuller
and Harrison 2005, pp. 716, 719; Robinson 2006, p. 69). In the North
Cascades, the highest snowshoe hare densities were found in 20-year-old
seral lodgepole pine stands with a dense understory (Koehler 1990, pp.
847-848). In montane and subalpine forests in northwest Montana, the
highest snowshoe hare densities in summer were generally in younger
stands with dense forest structure; in winter snowshoe hare densities
were as high or higher in mature stands with dense understory forest
structure (Griffin 2004, p. 53). Snowshoe hare studies are just
underway in Minnesota (Moen et al. 2005, p. 18); therefore, results on
habitat relationships are still preliminary. In the GYA, the highest
snowshoe hare densities were found in a douglas fir site and a few
regenerating lodgepole pine and lodgepole stands that had a lodgepole
understory. Low hare densities were found in most regenerating
lodgepole stands, most likely due to low stem densities (Hodges and
Mills 2005, p. 6). Spruce-fir forests were the stand type most likely
to support snowshoe hares; however, hare densities were never high at
these sites.
Habitats supporting abundant snowshoe hares must be present in a
large proportion of the landscape to support a viable lynx population.
Broad-scale snowshoe hare density estimates are not available for the
areas we are proposing as lynx revised critical habitat; available
snowshoe hare density estimates are only applicable for the immediate
area and time frame for which the study was conducted and cannot be
extrapolated further.
b. Snow Conditions (Other Physiological Requirements)
As described in the ``Background'' section above, snow conditions
also determine the distribution of lynx. Deep, fluffy snow conditions
likely restrict potential competitors such as bobcat or coyote from
effectively encroaching on or hunting in winter lynx habitat. Snowfall
was the strongest predictor of lynx occurrence at a regional scale
(Hoving et al. 2005, p. 746, Table 5). In addition to snow depth, other
snow properties, including surface hardness or sinking depth, are
important factors in the spatial, ecological, and genetic structuring
of the species (Stenseth et al. 2004, p. 75).

[[Page 10867]]

In the northeastern United States, lynx are most likely to occur in
areas with a 10-year mean annual snowfall greater than 105 in (268 cm)
(Hoving 2001, p. 75). The Northern Superior Uplands section of
Minnesota, which roughly corresponds to the area proposed as revised
critical habitat in that State, receives more of its precipitation as
snow than any section in the State, has the longest period of snow
cover, and has the shortest growing season (Minnesota DNR 2003, p. 2).
Mean annual snowfall from 1971 to 2000 in this area was generally
greater than 55 in (149 cm) (University of Minnesota 2005).
Information on average snowfall or snow depths in mountainous areas
such as the Cascades or northwest Montana is limited because few
weather stations in these regions have measured snow fall or snow depth
over time. Topography strongly influences local snow conditions. In the
Cascades, at the Mazama station, average annual snowfall from 1948 to
1976 was 115 in (292 cm) (Western Regional Climate Center 2005). In
Montana, at the Seeley Lake Ranger Station, average annual snowfall
from 1948 to 2005 is 124 in (315 cm), while at the Troy station the
average total snowfall from 1961 to 1994 was 90 in (229 cm) (Western
Regional Climate Center 2005).
We considered the effect climate change could have on average
snowfall or snow depths when we developed this proposed rule. We have
information to indicate that up to two-thirds of the lynx range in the
lower 48 States may become unsuitable by 2100 (Gonzalez et al. 2007,
pp. 4, 7-8, 10, 13-14, 19). However, we have used current climate
information in developing this rule because, until regional climate
projections are more certain, we find it is appropriate to designate
critical habitat for lynx where they currently exist. Projections for
habitat loss go out over the next 100 years. If designated habitat
becomes unsuitable for lynx in the future due to climate change, the
Service will revise critical habitat to remove unsuitable habitat and
add new suitable habitat in order to seek to facilitate the shift in
lynx range that climate change may cause. Lynx distribution and habitat
is likely to shift upward in elevation and northward in latitude as
temperatures increase (Gonzalez et al. 2007, pp. 7, 13-14, 19). All
proposed revised critical habitat units include the highest-elevation
habitats that lynx would be able to use in the event that they move to
higher elevations in response to climate change. Additionally, any
northward shifts in range would likely move the species and its
suitable habitat into Canada. Four of the five proposed revised
critical habitat units use the United States/Canada border as their
northern boundary.

Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring--Denning Habitat

Lynx den sites are found in mature and younger boreal forest stands
that have a large amount of cover and downed, large woody debris. The
structural components of lynx den sites are common features in managed
(logged) and unmanaged (e.g., insect damaged, wind-throw) stands.
Downed trees provide excellent cover for den sites and kittens and
often are associated with dense woody stem growth.
Site characteristics were evaluated for 26 lynx dens from 1999 to
2004 in northwest Maine. Dens were found in several stand types. Tip-up
mounds (exposed roots from fallen trees) alone best explained den site
selection (J. Organ, Service, unpubl. data). Tip-up mounds may purely
be an index of downed trees, which were abundant on the landscape.
Horizontal cover at 16 ft (5 m) alone was the next best predictor of
denning (J. Organ, unpubl. data). Dead, downed trees were sampled, but
did not explain den site selection as well as tip-up mounds and cover
at 16 ft (5 m). Lynx essentially select dense cover in a cover-rich
area.
In the North Cascades, Washington, lynx denned in mature (older
than 250 years) stands with an overstory of Engelman spruce, subalpine
fir, and lodgepole pine with an abundance of downed, woody debris
(Koehler 1990, p. 847). In this study, all den sites were located on
north-northeast aspects (Koehler 1990, p. 847). In northwest Montana,
areas around dens were a variety of ages but all contained abundant
woody debris including downed logs, blowdowns, and rootwads, and dense
understory cover (Squires et al. 2004b, Table 3). Information on den
site characteristics in Minnesota has not yet been reported (Moen et
al. 2005, p. 8).

Primary Constituent Element for Lynx

Within the geographical area we know to be occupied by the lynx, we
must identify the primary constituent elements (PCEs) laid out in the
quantity and spatial arrangement essential to the conservation of the
species (i.e., essential physical and biological features) that may
require special management considerations or protections.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species, we have determined that
the primary constituent element essential to the conservation of the
lynx is:
(1) Boreal forest landscapes supporting a mosaic of differing
successional forest stages and containing:
(a) Presence of snowshoe hares and their preferred habitat
conditions, including dense understories of young trees or shrubs tall
enough to protrude above the snow;
(b) Winter snow conditions that are generally deep and fluffy for
extended periods of time;
(c) Sites for denning having abundant, coarse, woody debris, such
as downed trees and root wads; and
(d) Matrix habitat (e.g., hardwood forest, dry forest, non-forest,
or other habitat types that do not support snowshoe hares) that occurs
between patches of boreal forest in close juxtaposition (at the scale
of a lynx home range) such that lynx are likely to travel through such
habitat while accessing patches of boreal forest within a home range.
The important aspect of matrix habitat for lynx is that these habitats
retain the ability to allow unimpeded movement of lynx through them as
lynx travel between patches of boreal forest.
We designed the proposed revised critical habitat units to capture
these elements of the PCE laid out in the quantity and spatial
arrangement essential to the conservation of the species (i.e.,
essential physical and biological features). To do this, we mapped
units across the geographic range of the species in the United States
to protect populations in the event of catastrophic events that could
impact a portion of the range. We designed each unit to be large enough
to encompass the temporal and spatial changes in habitat and snowshoe
hare populations to support interbreeding lynx populations or
metapopulations over time.

Special Management Considerations or Protections

When designating critical habitat, we assess whether the occupied
areas contain the physical and biological features that are essential
to the conservation of the species and that may require special
management considerations or protections.
The area proposed for designation as revised critical habitat will
require some level of management to address the current and future
threats to the lynx and to maintain the physical and

[[Page 10868]]

biological features essential to the conservation of the species. In
all units, special management will be required to ensure that boreal
forest landscapes provide a mosaic of forest stands of various ages to
provide abundant prey habitat, denning habitat, and connectivity within
the landscape. The designation of critical habitat does not imply that
lands outside of critical habitat do not play an important role in the
conservation of the lynx. Federal activities that may affect areas
outside of critical habitat, such as forest management, development,
and road construction, are still subject to review under section 7 of
the Act if they may affect lynx because Federal agencies must consider
both effects to lynx and effects to critical habitat independently. The
prohibitions of section 9 of the Act (e.g., harm, harass, capture,
kill) also continue to apply both inside and outside of designated
critical habitat.
Special management direction for lynx has been applied to public
lands in much of the lynx DPS. The USFS, Bureau of Land Management
(BLM), NPS, and the Service developed a Lynx Conservation Assessment
and Strategy (LCAS) (Ruediger et al. 2000, entire) using the best
available science at the time specifically to provide a consistent and
effective approach to conserve lynx and lynx habitat on Federal lands
(Ruediger et al. 2000). The overall goals of the LCAS were to recommend
lynx conservation measures, to provide a basis for reviewing the
adequacy of USFS and BLM land and resource management plans with regard
to lynx conservation, and to facilitate conferencing and consultation
under section 7 of the Act. The LCAS identifies an inclusive list of 17
potential risk factors for lynx or lynx habitat that may be addressed
under programs, practices, and activities within the authority and
jurisdiction of Federal land management agencies. The risks identified
in the LCAS are based on effects to either individual lynx, lynx
populations, or both, or to lynx habitat. Potential risk factors the
LCAS addresses that may affect lynx productivity include: timber
management, wildland fire management, recreation, forest/backcountry
roads and trails, livestock grazing, and other human developments.
Potential risk factors the LCAS addresses that may affect lynx
mortality include: trapping, predator control, incidental or illegal
shooting, and competition and predation as influenced by human
activities and highways. Potential risk factors the LCAS addresses that
may affect lynx movement include: highways, railroads and utility
corridors, land ownership pattern, and ski areas and large resorts.
Other potential large-scale risk factors for lynx addressed by the LCAS
include: fragmentation and degradation of lynx refugia, lynx movement
and dispersal across shrub-steppe habitats, and habitat degradation by
nonnative and invasive plant species.
The LCAS used the best available information at the time to ensure
the appropriate mosaic of habitat is provided for lynx on Federal
lands. Although the LCAS was written specifically for Federal lands,
many of the conservation measures are pertinent for non-Federal lands.
To facilitate project planning and allow for the assessment of the
potential effects of a project on an individual lynx, the LCAS directs
Federal land management agencies to delineate Lynx Analysis Units
(LAUs). The scale of an LAU approximates the size of area used by an
individual lynx (25 to 50 mi\2\ (65 to 130 km\2\)). The LCAS recognizes
that LAUs will likely encompass both lynx habitat and other areas
(e.g., lakes, low elevation ponderosa pine (Pinus ponderosa) forest,
and alpine tundra). Habitat-related standards the LCAS provides to
address potential risks include: (1) If more than 30 percent of lynx
habitat in an LAU is currently in unsuitable condition, no further
reduction of suitable condition shall occur as a result of vegetation
management activities by Federal agencies; (2) within an LAU, maintain
denning habitat in patches generally larger than 5 ac (2 ha),
comprising at least 10 percent of lynx habitat; (3) maintain habitat
connectivity within and between LAUs; (4) management actions (e.g.,
timber sales, salvage sales) shall not change more than 15 percent of
lynx habitat within an LAU to an unsuitable condition within a 10-year
period; (5) pre-commercial thinning will only be allowed when stands no
longer provide snowshoe hare habitat; (6) on Federal lands in lynx
habitat, allow no net increase in groomed or designated over-the-snow
routes and snowmobile play areas by LAU.
With the listing of the lynx in 2000, Federal agencies across the
contiguous United States range of the lynx were required to consult
with the Service on actions that may affect lynx. The LCAS assists
Federal agencies in planning activities and projects in ways that
benefit lynx or avoid adverse impacts to lynx or lynx habitat (Ruediger
et al. 2000). If projects are designed that fail to meet the standards
in the LCAS, the biologists using the LCAS would arrive at an adverse
effect determination for lynx.
A Conservation Agreement between the USFS and the Service (U.S.
Forest Service and U.S. Fish and Wildlife Service 2000) and a similar
Agreement between the BLM and the Service (Bureau of Land Management
and U.S. Fish and Wildlife Service 2000) committed the USFS and BLM to
use the LCAS in determining the effects of actions on lynx until Forest
Plans were amended or revised to adequately conserve lynx. A
programmatic biological opinion pursuant to section 7 of the Act
analyzed and confirmed the adequacy of the LCAS and its conservation
measures to conserve lynx and concluded that Forest Service and BLM
land management plans as implemented in accordance with the
Conservation Agreements would not jeopardize the continued existence of
lynx (U.S. Fish and Wildlife Service 2000).
In 2005, the USFS and the Service renewed the conservation
agreement (U.S. Forest Service and U.S. Fish and Wildlife Service 2005)
because the original agreement had expired. In the 2005 agreement, the
parties agree to take measures to reduce or eliminate adverse effects
or risks to lynx and its occupied habitat pending amendments to Forest
Plans. The LCAS is a basis for implementing this agreement (U.S. Forest
Service and U.S. Fish and Wildlife Service 2005). The 2005 agreement
was renewed on October 20, 2006, and expires December 31, 2010, unless
renewed. The BLM continues to adhere to their original agreement
although it expired in December 2004.
Lynx conservation depends on management that supports boreal forest
landscapes of sufficient size to encompass the temporal and spatial
changes in habitat and snowshoe hare populations to support
interbreeding lynx populations or metapopulations over time. At the
time it was written, the LCAS provided the highest level of management
or protection for lynx. The LCAS conservation measures address risk
factors affecting lynx habitat and lynx productivity and were designed
to be implemented at the scale necessary to conserve lynx. This level
of management is appropriate for Federal lands, because they account
for the majority of high-quality habitat in the United States and also
because the inadequacy of regulatory mechanisms to conserve lynx on
these lands at the time was the primary reason for listing the lynx as
a threatened species under the Act. Furthermore, new information has
come to light since the LCAS was written concerning that should be
taken

[[Page 10869]]

into account by land managers. For instance, Kolbe et al. (2007) and
Bunnell et al. (2006) published information on the effects of
snowmobiling on lynx, and Squires et al. (2006) documented the
importance of multilayered stands as snowshoe hare habitat. Further,
ongoing research in Minnesota and Maine has also resulted in
information helpful to forming our understanding of lynx and snowshoe
hare (e.g., Moen et al. 2004; Hoving et al. 2005; Homyack et al. 2007;
Fuller et al. 2007). In some regions of Wyoming, Washington and Maine,
research continues. Thus, as new information becomes available, this
information should be used in addition to that used in the LCAS.
The Forest Service considered some of the new information discussed
above when it proposed to revise 18 Forest Plans under a programmatic
plan amendment called the Northern Rocky Mountain Lynx Amendment (NRLA)
(Forest Service 2007). Because of the new information, some of the LCAS
standards were changed to guidelines because the Service had determined
that some risk factors were not negatively affecting the U.S. lynx DPS
as a whole. Since publication of the LCAS, lynx studied in the United
States have been shown to use a variety of sites and conditions for
denning. Lynx denning sites are not believed to be a limiting factor in
Montana and Maine study areas (Service 2007, pp. 48-49). Further,
earlier assessments also concluded that in most geographic areas,
denning habitat was not likely limiting to lynx, and existing forest
plan direction would not result in adverse effects (Hickenbottom et al.
1999). Likewise, after evaluating Bunnell et al. (2006, entire) and
Kolbe et al. (2007, entire), we determined that the best information
available did not indicate that compacted snow routes increase
competition from other species to levels that adversely impact lynx
populations in the NRLA area (Service 2007, pp. 55). Finally, since the
LCAS was written, new information revealed the importance of multi-
storied stands for lynx (Squires et al. 2006). On the basis of this
information, the Forest Service included a standard for conserving
these multi-storied stands in the NRLA. This LCAS does not contain this
standard.
In addition to diverging from the standards in the LCAS because of
new information, the NRLA also deviated from the LCAS by allowing
additional fuels reduction projects in areas within the wildlands-
urban-interface (WUI). In our analysis of this action, we determined
that even with these exceptions, the management in the NRLA would
provide for the recovery of lynx in these areas by addressing the major
reason we listed the lynx in 2000: The lack of guidance for
conservation of lynx in Federal land management plans. Consultation
under section 7 of the Act was completed for the NRLA in 2007, and it
is now official land management direction for the National Forests that
adopted it.

Criteria Used To Identify Critical Habitat

To identify areas containing the physical and biological features
that are essential to the conservation of the lynx, we considered the
concepts introduced in the recovery outline for the species (Service
2005, entire) and the analysis provided above concerning occupancy,
evidence of reproduction, and the primary constituent elements laid out
in the quantity and spatial arrangement necessary for the conservation
of the species. We have also reviewed information from State, Federal,
and tribal agencies, and information from academia and private
organizations that have collected scientific data on lynx.
The focus of our strategy in considering lands for designation as
revised critical habitat was on boreal forest landscapes of sufficient
size to encompass the temporal and spatial changes in habitat and
snowshoe hare populations to support interbreeding lynx populations or
metapopulations over time. Individual lynx maintain large home ranges;
the areas identified to have physical and biological features essential
to the conservation of the lynx are large enough to encompass multiple
home ranges. A secondary consideration is that, in addition to
supporting breeding populations, these areas provide connectivity among
patches of suitable habitat (e.g., patches containing abundant snowshoe
hares), whose locations in the landscape shift through time.
In proposing revised critical habitat for the lynx, we used the
best scientific data available to evaluate areas that contained the
PCEs in a spatial arrangement and quantity to provide the physical and
biological features essential to the conservation of the species and
that may require special management considerations or protection. In
evaluating areas for proposal as revised critical habitat, we first
determined the geographic area occupied by the species. We used data
providing verified evidence of the occurrence of lynx and evidence of
the presence of breeding lynx populations as represented by records of
lynx reproduction. We focused on records since 1995 to ensure that this
critical habitat designation is based on the data that most closely
represents the current status of lynx in the contiguous United States
and the geographic area occupied by the species at the time of listing.
Data that define the historic and current range of the lynx (e.g.,
McKelvey et al. 2000b, pp. 207-232; Hoving et al. 2003, entire)
constitute the geographic area that may be occupied by the species;
therefore, we determined that areas outside the historic distribution
are not essential to the conservation of the species. Although the
average life span of a wild lynx is not known, we have assumed that a
lynx born in 1995 could have been alive in 2000 or 2003, the dates of
publication of the final listing rule (64 FR 4483) and our
clarification of findings (68 FR 40075). We base this conclusion on the
fact that we do not have any information to suggest that lynx habitat
has substantially contracted or expanded such that species' range at
the time of listing would have been different than the current
observations. Clearly, lynx-related research in the contiguous United
States substantially increased after we published the 1998 proposal to
list lynx, and this research provides additional information on which
to base this proposed revised critical habitat designation. However,
this is not a reflection of substantial changes to lynx habitat or the
range of the lynx since 1995. These recent verified records were
provided by Federal research entities, State wildlife agencies,
academic researchers, and private individuals or organizations working
on lynx (K. Aubry, Pacific Northwest Research Station, unpubl. data; S.
Gehman, Wildthings Unlimited, unpubl. data; S. Gniadek, Glacier
National Park, unpubl. data; S. Loch, Independent Scientist, and E.
Lindquist, Superior National Forest, unpubl. data; K. McKelvey, Rocky
Mountain Research Station, unpubl. data; Minnesota DNR 2005 website; R.
Moen, University of Minnesota, Natural Resources Research Institute,
unpubl. data; J. Squires, Rocky Mountain Research Station, unpubl.
data; J. Vashon, Maine Department of Inland Fisheries and Wildlife,
unpubl. data).
By accepting only verified recent lynx records, we restricted the
available lynx occurrence dataset because we wanted reliable data for
the purposes of evaluating areas and features for revised critical
habitat designation. The reliability of lynx occurrence reports can be
questionable because the bobcat, a common species, can be confused with
the lynx, which is similar in appearance. Additionally, many surveys
are conducted by snow tracking in

[[Page 10870]]

which correct identification of tracks can be difficult because of
variable conditions affecting the quality of the track and variable
expertise of the tracker. Our definition of a verified lynx record is
modified from McKelvey et al. (2000b, p. 209)--(1) An animal (live or
dead) in hand or observed closely by a person knowledgeable in lynx
identification, (2) genetic (DNA) confirmation, (3) snow tracks only
when confirmed by genetic analysis (e.g., McKelvey et al. 2006, entire)
or (4) location data from radio-or GPS-collared lynx. Documentation of
lynx reproduction consists of lynx kittens in hand, or observed with
the mother by someone knowledgeable in lynx identification, or snow
tracks demonstrating family groups traveling together, as identified by
a person highly knowledgeable in identification of carnivore tracks.
However, we made an exception and accepted snow track data from Maine
because of the stringent protocols used in confirming tracks as lynx
and the minimal number of species in the area with which lynx tracks
could be misidentified (McCollough 2006, entire).
The area occupied by the species was then overlaid with areas that
contain boreal forest types. From this overlay we determined which
areas contain the essential physical and biological features (i.e., the
primary constituent element (PCE) laid out in the quantity and spatial
arrangement essential to the conservation of the species) by examining
recent lynx records, evidence of breeding lynx populations, and
presence of the boreal forest type that is currently occupied by lynx
in each particular area and that provides direct connectivity with lynx
populations in Canada. Lynx populations in the contiguous United States
seem to be influenced by lynx population dynamics in Canada (Thiel
1987; McKelvey et al. 2000a, p. 427, 2000c, p. 33). Many of these
populations in Canada are directly interconnected with United States'
populations, and are likely a source of emigration into the contiguous
United States; lynx from the contiguous United States are known to move
into Canada. Therefore, we assume that retaining connectivity with
larger lynx populations in Canada is important to ensuring long-term
persistence of lynx populations in the United States. We assume that,
regionally, lynx within the contiguous United States and adjacent
Canadian provinces interact as metapopulations. Where available, data
on historic average snow depths and bobcat harvest provided additional
insight for refining and delineating appropriate boundaries for
consideration as revised critical habitat.
In the North Cascades and Northern Rockies, the physical and
biological features essential to the conservation of lynx, the majority
of lynx records, evidence of reproduction, and the boreal forest types
are found above 4,000 feet (ft) (1,219 meters (m)) in elevation
(McKelvey et al. 2000b, pp. 243-245; McAllister et al. 2000, entire).
Thus, we limited the delineation of revised critical habitat to lands
above this elevation. Additionally, in the North Cascades, physical and
biological features essential to the conservation of the lynx, the
majority of the lynx records, and evidence of reproduction occur east
of the crest of the Cascade Mountains. Therefore, in the Cascades we
used the border with Canada, the Cascade crest, and the 4,000-ft
(1,219-m) elevation contour east of the crest as the boundary. In the
Northern Rockies, the 4,000-ft (1,219-m) contour was used as the
primary boundary west of the Continental Divide. However, the climatic
effects of the Continental Divide cause the 4,000-ft (1,219-m)
elevation contour to be too broad east of the Continental Divide, such
that it includes substantial areas of grassland habitats that do not
contain the physical and biological features essential to the lynx or
are not important for snowshoe hares. Therefore, east of the
Continental Divide in the Northern Rockies we used National Forest and
National Park Service (NPS) park boundaries to circumscribe proposed
revised critical habitat boundaries to more closely encompass essential
features; recent records of lynx, including records of reproduction;
and boreal forest currently occupied by lynx. The northern boundary for
the Northern Rockies unit is the border with Canada.
Delineating proposed revised lynx critical habitat boundaries in
the Greater Yellowstone Area (GYA) was more challenging because it is a
complex, high elevation ecosystem in which simply following elevation
contours would be too broad in that they would encompass extensive
areas of non-lynx habitat. Furthermore, the GYA has the least amount of
available lynx-related research to assist us in delineating boundaries.
Therefore, we drew the boundaries in the GYA around the majority of
recent lynx records using a combination of National Forest boundaries
and township lines to encompass the lynx habitat in this area.
As discussed above, we are seeking information on whether lands
within the GYA contain physical and biological features essential to
the conservation of the lynx because the habitat appears to be of
lesser quality, and lynx occur at lower densities than the populations
found in other units. Although lynx currently occupy the GYA (Murphy et
al. 2004, entire; J. Squires, Rocky Mountain Research Station, unpubl.
data; S. Gehman, Wildthings Unlimited, unpubl. data), their presence
has been at a naturally lower level compared to the other areas we are
proposing as revised critical habitat. In the clarification of findings
published in the Federal Register on July 3, 2003 (68 FR 40076), we
concluded that habitat in this area is less capable than other areas of
supporting snowshoe hares because it is naturally patchy and contains
drier forest types, and because the GYA is disjunct from likely source
populations. Within Yellowstone National Park, few lynx were detected
during recent surveys (Murphy et al. 2004, pp. 8-9) and hare densities
were very low (Hodges and Mills 2005, pp. 5-6). Murphy et al. (2004,
pp. 9-10) concluded that elevations and slope aspects cause lynx
habitat in this area to be naturally highly fragmented resulting in low
lynx densities. Few lynx were documented in the Wyoming Mountain Range
in the southern portion of the ecosystem (Squires and Laurion 2000, pp.
343-345; Squires et al. 2001, pp. 9-10). On study sites on the western
edge of the Yellowstone ecosystem in Idaho, the subalpine fir
vegetation series that comprises lynx and snowshoe hare habitat was
found only in naturally small, discontinuous patches (McDaniel and
McKelvey 2004, pp. 15-18). In this study area, few stands supported
snowshoe hare densities similar to areas known to support lynx
(McKelvey and McDaniel 2001, pp. 11-18).
If we determine, based on the best available scientific information
and information obtained through public comments, that the GYA does not
contain the physical and biological features essential to the
conservation of lynx, we will not include it in the final rule. If we
determine the area (or portions of it) does contain the features
essential to the conservation of lynx, we intend to further refine the
critical habitat boundary in the final rule based on improved mapping
data and lynx occurrence data. Due to the fragmented mosaic nature of
the GYA unit, it will by necessity contain patches of habitat that do
not fit into the moist boreal forest types (e.g., dry douglas fir, non-
forest, or other habitats that do not support snowshoe hares, hereafter
``matrix habitat'') usually considered lynx habitat. The inclusion of
matrix habitat in this and other units is

[[Page 10871]]

necessary due to the inclusion of these areas in lynx home ranges and
their use as travel habitat as lynx move between foraging and denning
areas within their home ranges. Matrix habitat is included because it
is interwoven with moist boreal forest types and, therefore, is used by
lynx to travel unimpeded between foraging and denning areas within
their home ranges. The important aspect of matrix habitat for lynx is
that movement through it is not impeded.
We are also seeking information on whether the Kettle Range in
north-central Washington is an area essential to the conservation of
the lynx in the contiguous United States. Trapping records from the
1960s and 1970s show that the lynx population that once inhabited this
area underwent dramatic swings in abundance going from high levels of
harvest to low levels several times over two decades (McKelvey 1999,
pp. 13-14). Since the 1970s, the area appears to have been unoccupied
due to a lack of verifiable reports of lynx. Snow-tracking surveys
conducted from 1992 to 1996 in the Kettle Range resulted in only two
sets of tracks: one in 1991-1992 and one in 1995-1996. This indicates
the lack of a reproducing population of lynx at that time. The Kettle
Range currently has suitable lynx habitat (Koehler 2008) and the
possibility that lynx occur does exist; however, the lack of verified
occurrences since 1995 leads us to conclude that it is not likely to be
occupied.
We are not currently proposing any areas outside the geographical
area presently occupied by the species because we have determined that
occupied areas are sufficient for the conservation of the species
because these areas adequately address the concepts of representation,
resiliency, and redundancy necessary for conservation of a species
(Shaffer and Stein 2000). Resiliency of a species allows the species to
recover from periodic disturbance. Areas are resilient if they are
relatively large and contain particularly high-quality habitat or if
their location or characteristics make them less susceptible to certain
threats than other portions of the range. Resiliency of a species
allows the species to recover from periodic disturbance. A species will
likely be more resilient if large populations exist in high-quality
habitat that is distributed throughout the range of the species in such
a way as to capture the environmental variability found within the
range of the species. The proposed revised critical habitat addresses
the concept of resiliency because the total area of the five units
covers a large geographic area (42,753 mi\2\ (110,727 km2)), and
because it contains the highest quality habitat in the United States.
Redundancy of populations may be needed to provide a margin of safety
for the species to withstand catastrophic events. The idea is to
conserve enough areas of the range such that random perturbations in
the system act on only a few populations. The proposed revised critical
habitat addresses the concept of redundancy because it includes five
units distributed across a broad geographic area. Catastrophic events
that could affect all five units are extremely improbable. Adequate
representation insures that the species' adaptive capabilities (often
as indicated by genetic diversity) are conserved. Genetic
representation is not an issue for lynx, because lynx across the range
are similar and all share the same haplotypes (Rueness et al. 2003, p.
71). Thus, we have determined that the five units contained in this
proposed revised critical habitat address the concept of
representation.
Lynx in the southern portion of their range exhibit metapopulation
dynamics (i.e., populations exist as semi-isolated subpopulations
connected to other subpopulations by migration) (Thiel 1987, p. 94;
McKelvey et al. 1999, p. 24). The southern extensions of the North
American lynx population that extend into the contiguous United States
occur in marginal and naturally fragmented habitats and are likely
dependent on migration from the core portion of the metapopulation in
the Canadian taiga for genetic and demographic enrichment (McCord and
Cardoza 1982, p. 729; McKelvey 1999, p. 232). Occupied areas within the
current distribution of lynx (except for the reintroduced Colorado
population) are the areas that have been most consistently occupied by
reproducing populations (McKelvey 1999, pp. 211-232) and are the
largest patches of suitable lynx habitat within the range of the DPS.
Patches of lynx habitat outside of this occupied range are generally
smaller and more isolated and have inconsistent records of lynx
presence and reproduction, or no record at all (McKelvey 1999, pp. 211-
232). Due to their high mobility, lynx may periodically occupy these
areas; however, the lack of consistent occupation and reproduction
means that these areas do not materially contribute to persistence of
the DPS while the proposed areas clearly do.
In summary, the area occupied by the lynx in the contiguous United
States is broadly delineated by the distribution of the southern
extensions of boreal forest, which occur in the Northeast (portions of
Maine, New Hampshire, Vermont, New York); the western Great Lakes
(portions of Minnesota, Wisconsin, Michigan); the Northern Rocky
Mountains/Cascades (portions of Washington, Oregon, Idaho, Montana,
northwestern Wyoming, Utah); and the Southern Rocky Mountains (portions
of Colorado, southeastern Wyoming) (Agee 2000, pp. 39-45; McKelvey et
al. 2000b, pp. 211-232, 242-253; Hoving et al. 2003, pp. 368-373).
Within this broad distribution, the recovery outline (Service 2005,
entire) delineated core areas that contain consistent, verified records
of lynx over time and evidence of reproduction within the past 20
years. The long-term occupation of these general areas by lynx supports
the assumption that they contain habitats sufficient in quality and
quantity to continue to sustain lynx populations. An additional factor
strongly influencing the sustainability of all core areas with the
exception of the GYA is their connection with larger lynx populations
in Canada. Each proposed revised critical habitat unit occurs within
one of the areas identified as core in the recovery outline.

Relationship to Recovery Outline

We considered the lynx recovery outline (Service 2005) when
developing this proposed revised critical habitat rule for lynx.
However, the recovery outline and this proposed rule contain some
differences. Recovery outlines are brief, internally-developed
documents intended as preliminary strategies for the conservation of a
listed species until a formal recovery plan is completed (Service 1989,
entire; Service 1990, p. 6; National Marine Fisheries Service 2004, pp.
3.0-1 to 3.1-1). The lynx recovery outline was prepared by Service
staff experienced in lynx conservation and recovery planning under the
Act and two lynx experts from the USFS. The lynx recovery outline
presented the understanding of historical and current lynx
distribution, ecology, and population dynamics at the time it was
written in 2005. The outline introduces concepts regarding the relative
importance of different geographic areas to the persistence of lynx in
the contiguous United States, identifying areas as either core,
provisional core, secondary, or peripheral based primarily on lynx
records over time and evidence of reproduction. Additionally, the
outline describes preliminary recovery objectives and actions.
The recovery outline and this proposed revised critical habitat
rule used different standards and criteria. The recovery outline did
not consider what areas contain the physical and

[[Page 10872]]

biological features that are essential to the conservation of lynx;
rather, the preparers concentrated on distinguishing between areas with
past or present lynx populations and those with lynx occurrence records
that were unlikely to support reproducing populations. In designating
critical habitat, we are required to determine those areas that contain
the physical and biological features essential to the conservation of
lynx within the geographical area occupied by the species. We have
determined that areas that contain the physical and biological features
essential to the conservation of lynx are those with verified records
of lynx persistence into the present time and with verified evidence of
reproduction. The areas identified as core in the recovery outline
roughly coincide with the areas proposed as revised critical habitat
with the following exceptions: (1) Mapping for the purposes of the
recovery outline was done on a course scale without refined GIS layers,
while the mapping done for the purposes of this proposed rule were more
exact; and (2) further analysis shows that some areas considered core
in the recovery outline (e.g., the Kettle Range and New Hampshire) do
not meet the criteria for core because they do not have long-term
evidence of reproduction or current occupancy (see discussion below).
The recovery outline did not define which areas are essential to
the conservation of lynx as is necessary for this revised proposed
critical habitat designation. The criteria we used for determining
areas essential to the conservation of lynx for this proposed revised
critical habitat were more narrowly defined than those used for
delineating the recovery areas in the lynx recovery outline; in
particular, for critical habitat we focused closely on areas with
reliable evidence of lynx reproduction since 1995. We used 1995 because
of the Act's definition at 3(5)(A)(i) that occupied habitat include
specific areas within the geographical area occupied by the species at
the time it is listed. We believe that the documented lynx observations
since 1995 best depict the range of the species both at the time it was
listed (2000) and at the time of our clarification of findings (2003).
Furthermore, the boundaries for the recovery areas were drawn on a
gross scale compared to the proposed revised critical habitat
boundaries. As a result, the proposed revised critical habitat units
are subsets of five of the six areas preliminarily delineated as core
in the lynx recovery outline.
In this revision, we do not propose revised critical habitat in one
area the recovery outline defined as core: the Kettle Range in north-
central Washington. The Kettle Range historically supported lynx
populations (Stinson 2001, pp. 13-14). However, although boreal forest
habitat within the Kettle Range appears of high quality for lynx, there
is no evidence that the Kettle Range is currently occupied by a lynx
population nor has it been for at least two decades (McKelvey 1999, p.
228; Koehler 2008, entire). Furthermore, it does not have recent (i.e.,
20 years) evidence of reproduction. Thus, it does not meet the criteria
for ``core'' outlined in the recovery outline (Service 2005, p. 5).
Snowtracking surveys conducted from 1992 to 1996 in the Kettle Range
resulted in only two sets of tracks: one in 1991-1992 and one in 1995-
1996 (McKelvey 1999, p. 228), indicating that although lynx may have
been able to reach the range, they were unable to establish a
population there. The above described attributes of the Kettle Range
indicate that while this area may be considered a core area in the
recovery outline, its importance for lynx conservation is less than
those areas that we consider essential for the conservation of lynx due
to their historic and recent history of reproduction and population
occupation. We have made the preliminary determination that the area is
not essential for the conservation of lynx; therefore, we do not
propose to include it as revised critical habitat.
Likewise, the areas included in the recovery outline as core in
western Maine and New Hampshire do not appear now to meet the criteria
for core. No lynx were detected in New Hampshire and western Maine in
the course of surveys done according to the standard lynx protocol for
this region in 2005 (for New Hampshire) and 2006-2007 (in western
Maine) (McCullough 2008, entire).
The recovery outline identified the Southern Rocky Mountains as a
``provisional core'' because of the current uncertainty that ongoing
lynx reintroduction efforts will result in a self-sustaining lynx
population. Native lynx were functionally extirpated from their
historic range in Colorado and southern Wyoming in the Southern Rocky
Mountains by the time the lynx was listed in 2000. In 1999, the State
of Colorado began an intensive effort to reintroduce lynx. Initial
results of this reintroduction were encouraging, with documented rates
of reproduction similar to other lynx populations in the DPS (Shenk
2007, pp. 12-13). However, subsequent monitoring indicates that rates
of reproduction have fallen in recent years, with zero reproduction
detected for 34 females with radio collars in 2007 (Shenk 2007, p. 13).
Although it is still too early to determine whether the introduction
will result in a self-sustaining population, the reintroduced lynx have
produced kittens and now are distributed throughout the lynx habitat in
Colorado and southern Wyoming. These animals are not designated as
experimental under section 10(j) of the Act. Although Colorado's
reintroduction effort is an important step toward the recovery of lynx,
we do not propose habitat in the Southern Rockies for revised
designation because of the current uncertainty that a self-sustaining
lynx population will become established. Determination of establishment
will be based on the maintenance of a stable or naturally oscillating
population structure composed of breeding individuals derived from wild
mating and births (rather than introduced animals). A population that
has demonstrated robustness to natural fluctuations due to oscillations
in prey abundance is key to determining that they are established.
Many areas within the contiguous United States contain varying
levels of individual lynx records with no evidence of persistent,
reproducing lynx populations. Our review of many years of occurrence
records reveals lynx records in areas with unsuitable habitats or snow
conditions. However, we do not consider these areas capable of
supporting lynx populations because they do not have the habitat or
snow conditions suitable for lynx or snowshoe hare. Lynx occurrence in
these areas is due to the population dynamics of lynx and their
dispersal abilities that lead to lynx attempting to colonize new areas
with little ability to support lynx reproduction. That is why we rely
on a combination of consistent, verifiable evidence of lynx presence
and reproduction, along with habitat characteristics to delimit
critical habitat. Reliance on occurrence records alone, without
consideration of reproduction and habitat variables, would lead to
designation of large areas that may occasionally hold dispersing lynx
for a short time, but due to their marginal nature and lack of
sufficient food supply, will not support lynx reproduction and so do
not contribute to lynx conservation. It is unlikely that these areas
support undocumented, persistent populations of lynx because the forest
types, snow conditions, and snowshoe hare populations are absent or are
of such marginal condition due to

[[Page 10873]]

natural fragmentation that their ability to support lynx is minimal. In
many cases these areas also support populations of bobcats, a species
that excludes lynx from areas with low snow accumulation and act as a
general indicator of habitat that cannot support lynx. Most of the
records in these areas are likely a result of wide-ranging dispersal
events through less suitable habitats that are mostly disjunct from
areas that contain persistent lynx populations. Our recovery outline
defines these areas as secondary or peripheral (see Service 2005, p. 21
for a map of core, secondary, and peripheral areas), and their role in
sustaining persistent lynx populations is unclear. Such areas may
provide habitat to dispersing lynx, especially when populations are
extremely high and some of these animals may eventually settle in areas
capable of supporting lynx populations. Areas delineated as secondary
or peripheral in the lynx recovery outline are not included in our
proposed revised critical habitat designation because they lack
evidence of reproducing lynx populations and they lack large areas of
contiguous habitat required to support populations. During natural lynx
population fluctuations, these peripheral areas are likely to be the
last areas to be colonized by excess lynx and the first to lose lynx as
populations recede. We expect the areas in the proposed revised units
to maintain lynx populations through natural population lows and serve
as source populations for secondary areas as populations expand. We
expect the areas in the proposed revised units will support lynx
through cyclic population fluctuations, the most crucial time being the
population lows. We consider the proposed revised units as the areas
essential to provide for the long-term conservation of lynx across its
contiguous United States range, as it is these areas that will serve as
source populations for secondary areas as the populations expand. For
this reason, we have determined the units in this proposed revision
contain the physical and biological features essential to the
conservation of lynx while other areas do not.
We propose critical habitat on lands we have determined were
occupied at the time of listing; currently support the most abundant,
reproducing lynx populations in the contiguous United States; and
contain the physical and biological features essential to the
conservation of the lynx and that may require special management. The
focus of our proposed critical habitat revision is on boreal forest
landscapes of sufficient size to encompass the temporal and spatial
changes in habitat and snowshoe hare populations necessary to support
interbreeding lynx populations or metapopulations over time. Individual
lynx maintain large home ranges; the areas proposed as revised critical
habitat are large enough to encompass multiple home ranges. A secondary
consideration is that, in addition to supporting breeding populations,
these areas provide connectivity among patches of foraging habitat
(e.g., patches containing abundant snowshoe hares), whose locations in
the landscape shift through time.
When determining proposed revised critical habitat boundaries
within this proposed rule, we made every effort to avoid including
water bodies (lakes, rivers, and streams) and developed areas such as
buildings, paved areas, and other structures that lack the physical and
biological features essential for the conservation of the lynx. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed areas. Any such structures and the land under them
inadvertently left inside critical habitat boundaries shown on the maps
of this proposed rule have been excluded by text in the proposed rule
and are not proposed for designation as revised critical habitat.
Therefore, Federal actions involving these areas would not trigger
consultation under section 7 of the Act with respect to critical
habitat, unless the specific action would affect the primary
constituent element.

Proposed Revised Critical Habitat Designation

We are proposing five units as revised critical habitat for the
lynx. These areas occur in northern Maine, northeastern Minnesota, the
Northern Rocky Mountains (northwestern Montana/northeastern Idaho), the
North Cascades (north-central Washington), and the GYA (southwestern
Montana, northwestern Wyoming). The areas are distributed across the
known occupied range of the lynx in the contiguous United States, and
are essential to the conservation of the species. The critical habitat
areas we describe below constitute our current best assessment of areas
that meet the definition of critical habitat for lynx. To better
understand the location of these proposed areas, please see the
associated maps found within this proposed rule or examine them at
http://mountain-prairie.fws.gov/species/mammals/lynx/. The five
proposed revised critical habitat units are: (1) Northern Maine unit;
(2) Northeastern Minnesota unit; (3) Northern Rocky Mountains unit
(northwestern Montana/northeastern Idaho); (4) North Cascades unit
(north-central Washington); and (5) Greater Yellowstone Area
(southwestern Montana, northwestern Wyoming).

Table 1.--Critical Habitat Units Proposed for the Canada Lynx
------------------------------------------------------------------------
Critical habitat unit Miles \2\ Kilometers \2\
------------------------------------------------------------------------
1. Northern Maine....................... 10,633 27,539
2. Northeastern Minnesota............... 8,226 21,305
3. Northern Rocky Mountains (ID/MT)..... 11,304 29,276
4. North Cascades (WA).................. 2,000 5,180
5. Greater Yellowstone Area (MT/WY)..... 10,590 27,427
-------------------------------
Total............................... 42,753 110,727
------------------------------------------------------------------------

Table 2.--Critical Habitat Proposed for the Canada Lynx by Landownership and State (mi\2\/km\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Private Tribal Other
--------------------------------------------------------------------------------------------------------------------------------------------------------
Idaho.................................................... 50/131 1/3 0/0 0/0 0/0
Maine.................................................... 13/34 758/1,962 9,741/25,230 86/223 35/90
Minnesota................................................ 4,279/11,082 1,099/2,848 1,548/4,008 72/187 1,149/2,976
Montana.................................................. 11,182/28,960 372/964 1,985/5,140 347/898 72/188

[[Page 10874]]

Washington............................................... 1,831/4,742 164/424 5/13 0/0 0.1/0.2
Wyoming.................................................. 7,695/19,930 14/36 133/343 0/0 43/110
Total................................................ 25,050/64,879 2,408/6,237 13,412/34,737 505/1,308 1,299/3,364
--------------------------------------------------------------------------------------------------------------------------------------------------------

We present brief descriptions of each critical habitat unit below.

Unit 1: Northern Maine [10,633 mi\2\ (27,539 km\2\)]

Unit 1 is located in northern Maine in portions of Aroostook,
Franklin, Penobscot, Piscataquis, and Somerset Counties. This area was
occupied by the lynx at the time of listing and is currently occupied
by the species. Lynx in northwestern Maine have high productivity: 91
percent of available adult females (greater than 2 years) produced
litters, and litters averaged 2.83 kittens (Vashon et al. 2005b, pp. 4-
6). This area contains the physical and biological features essential
to the conservation of the lynx as it is comprised of the primary
constituent element and its components laid out in the appropriate
quantity and spatial arrangement. This area is also important for lynx
conservation because it is the only area in the northeastern region of
the lynx's range within the contiguous United States that currently
supports breeding lynx populations and likely acts as a source or
provides connectivity for more peripheral portions of the lynx's range
in the Northeast. Timber harvest and management is the dominant land
use within the unit; therefore, special management is required
depending on the silvicultural practices conducted (68 FR 40075).
Timber management practices that provide for a dense understory are
beneficial for lynx and snowshoe hares. In this area, other habitat-
related threats to lynx are lack of an International conservation
strategy for lynx, traffic, and development (68 FR 40075).

Unit 2: Northeastern Minnesota [8,226 mi\2\ (21,305 km\2\)]

Unit 2 is located in northeastern Minnesota in portions of Cook,
Koochiching, Lake, and St. Louis Counties, and Superior National
Forest. In 2003, when we last formally reviewed the status of the lynx,
numerous verified records of lynx existed from northeastern Minnesota
(68 FR 40076, July 3, 2003). The area was occupied at the time of
listing and is currently occupied by the species. Lynx are currently
known to be distributed throughout northeastern Minnesota, as has been
confirmed through DNA analysis, radio- and GPS-collared animals, and
documentation of reproduction (Moen et al. 2004, entire; Minnesota DNR
2005, entire; S. Loch, unpubl. data; Minnesota Department of Natural
Resources, unpubl. data). This area contains the physical and
biological features essential to the conservation of the lynx as it is
comprised of the primary constituent element and its components laid
out in the appropriate quantity and spatial arrangement. This area is
essential to the conservation of lynx because it is the only area in
the U.S. Great Lakes region for which we have evidence of recent lynx
reproduction. It likely acts as a source or provides connectivity for
more peripheral portions of the lynx's range in the region. Timber
harvest and management is a dominant land use (68 FR 40075). Therefore,
special management is required depending on the silvicultural practices
conducted. Timber management practices that provide for a dense
understory are beneficial for lynx and snowshoe hares. In this area,
lack of an International conservation strategy for lynx, fire
suppression or fuels treatment, traffic, and development are other
habitat-related threats to lynx (68 FR 40075).
Specific sections of land encompassing a mining district in
Minnesota known as the Iron Range are not included in this proposed
revised designation because they do not contain the physical and
biological features essential to the conservation of lynx. In much of
the Iron Range, mining has removed all vegetation and much of this area
was subsequently flooded. Areas that are still vegetated and not
flooded are extensively fragmented by the mined areas and haul roads.
We used the ``GAP Land Cover--Tiled Raster'' dataset (Minnesota
Department of Natural Resources 2002) to identify sections that are
heavily influenced by mining activities. Areas described as ``Barren''
and ``Mixed Developed'' in the GAP dataset seemed to correspond to
areas that were mined or extensively disturbed by mining-related
activities (e.g., service roads), based on aerial photos (National
Agricultural Imagery Program 2003). Further inspection of the aerial
photos indicate there are additional sections with extensive effects of
mining, beyond that indicated by the GAP data, which is based on 10-15-
year-old satellite imagery. These disturbed areas are not proposed as
revised lynx critical habitat.

Unit 3: Northern Rocky Mountains [11,304 mi\2\ (29,276 km\2\)]

Unit 3 is located in northwestern Montana and a small portion of
northeastern Idaho in portions of Boundary County in Idaho and
Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Missoula,
Pondera, Powell and Teton Counties in Montana. It includes the Flathead
Indian Reservation, National Forest lands, and Bureau of Land
Management (BLM) lands in the Garnet Resource Area. This area was
occupied by lynx at the time of listing and is currently occupied by
the species. Lynx are known to be widely distributed throughout this
unit and breeding has been documented in multiple locations (Gehman et
al. 2004, pp. 24-29; Squires et al. 2004a, pp. 7-10 and 2004b, pp. 8-
10). This area contains the physical and biological features essential
to the conservation of the lynx as it is comprised of the primary
constituent element and its components laid out in the appropriate
quantity and spatial arrangement. This area is essential to the
conservation of lynx because it appears to support the highest density
lynx populations in the Northern Rocky Mountain region of the lynx's
range. It likely acts as a source for lynx and provides connectivity to
other portions of the lynx's range in the Rocky Mountains, particularly
the Yellowstone area. Timber harvest and management is a dominant land
use (68 FR 40075); therefore, special management is required depending
on the silvicultural practices conducted. Timber management practices
that provide for a dense understory are beneficial for lynx and
snowshoe hares. In this area, fire suppression or fuels treatment, lack
of an International conservation strategy for lynx, traffic, and
development are other habitat-related threats to lynx (68 FR 40075).

Unit 4: North Cascades [2,000 mi\2\ (5,180 km\2\)]

Unit 4 is located in north-central Washington in portions of Chelan
and Okanogan Counties, and includes BLM lands in the Spokane District.
This area

[[Page 10875]]

was occupied at the time lynx was listed and is currently occupied by
the species. This unit supports the highest densities of lynx in
Washington (Stinson 2001). Evidence from limited recent research and
DNA shows lynx distributed within this unit, with breeding being
documented (von Kienast 2003, p. 36; K. Aubry, Pacific Northwest
Research Station, unpubl. data; B. Maletzke, Washington State
University, unpubl. data). Although there appear to be fewer records in
the portion of the unit south of Highway 20, few surveys have been
conducted in this portion of the unit. This area contains boreal forest
habitat and the components essential to the conservation of the lynx.
Further, it is contiguous with the portion of the unit north of Highway
20, particularly in winter when deep snows close Highway 20. The
northern portion of the unit adjacent to the Canadian border also
appears to support few recent lynx records; however, it is designated
wilderness, so access to survey this area is difficult. This northern
portion contains extensive boreal forest vegetation types and the
components essential to the conservation of the lynx. Additionally,
lynx populations exist in British Columbia directly north of this unit
(E. Lofrothe, British Columbia Ministry of the Environment, unpubl.
data). This area contains the physical and biological features
essential to the conservation of the lynx as it contains the primary
constituent element and its components laid out in the appropriate
quantity and spatial arrangement. This area is essential to the
conservation of lynx because it is the only area in the Cascades region
of the lynx's range that is known to support breeding lynx populations.
Timber harvest and management is a dominant land use; therefore,
special management is required depending on the silvicultural practices
conducted. Timber management practices that provide for a density
understory are beneficial for lynx and snowshoe hares. In this area,
Federal land management plans have not been amended to incorporate lynx
conservation. The lack of an International conservation strategy for
lynx, traffic, and development are other habitat-related threats to
lynx (68 FR 40075).

Unit 5: Greater Yellowstone Area [10,590 mi\2\ (27,427 km\2\)]

Unit 5 is located in Yellowstone National Park and surrounding
lands in southwestern Montana and northwestern Wyoming. Lands in this
unit are found in Gallatin, Park, Sweetgrass, Stillwater, and Carbon
Counties in Montana, and Park, Teton, Fremont, Sublette, and Lincoln
Counties in Wyoming. This area was occupied by lynx at the time of
listing and is currently occupied by the species. The area contains the
physical and biological features essential to the conservation of the
lynx as it contains the primary constituent element and its components
laid out in the appropriate quantity and spatial arrangement. The GYA
is naturally marginal lynx habitat with highly fragmented foraging
habitat. For this reason lynx home ranges in this unit are likely to be
larger and incorporate large areas of non-foraging matrix habitat. In
this area, fire suppression or fuels treatment, lack of an
International conservation strategy for lynx, traffic, and development
are other habitat-related threats to lynx (68 FR 40075). Therefore,
special management is required depending on the fire suppression and
fuels treatment practices conducted and the design of highway
development projects.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5th and 9th Circuit Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species (Jones 2004, p. 3).
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. Conference reports provide conservation
recommendations to assist the agency in eliminating conflicts that may
be caused by the proposed action. We may issue a formal conference
report if requested by a Federal agency. Formal conference reports on
proposed critical habitat contain an opinion that is prepared according
to 50 CFR 402.14, as if critical habitat were designated. We may adopt
the formal conference report as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). The conservation recommendations in a conference report are
advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the 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 (action agency)
must enter into consultation with us in most cases. As a result of this
consultation, we document compliance with the requirements of section
7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
An exception to the concurrence process referred to in (1) above
occurs in consultations involving National Fire Plan projects. When we
issue a biological opinion concluding that a project is likely to
jeopardize the continued existence of a listed species or destroy or
adversely modify critical habitat, we also provide reasonable and
prudent alternatives to the project, if any are identifiable. We define
``Reasonable and prudent alternatives'' at 50 CFR 402.02 as alternative
actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a

[[Page 10876]]

reasonable and prudent alternative are similarly variable.
When we issue a biological opinion concluding that a project is not
likely to jeopardize a listed species or adversely modify critical
habitat, but may result in incidental take of listed animals, we
provide an incidental take statement that specifies the impact of such
incidental taking on the species. We then define ``Reasonable and
Prudent Measures'' considered necessary or appropriate to minimize the
impact of such taking. Reasonable and prudent measures are binding
measures the action agency must implement to receive an exemption to
the prohibition against take contained in section 9 of the Act. These
reasonable and prudent measures are implemented through specific
``Terms and Conditions'' that must be followed by the action agency or
passed along by the action agency as binding conditions to an
applicant. Reasonable and prudent measures, along with the terms and
conditions that implement them, cannot alter the basic design,
location, scope, duration, or timing of the action under consultation
and may involve only minor changes (50 CFR 402.14). The Service may
provide the action agency with additional conservation recommendations,
which are advisory and not intended to carry binding legal force.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect lynx or its designated critical
habitat require section 7 consultation under the Act. Activities on
State, Tribal, local, or private lands requiring a Federal permit (such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under
section 10 of the Act) or an activity involving some other Federal
action (such as funding from the Federal Highway Administration,
Federal Aviation Administration, or the Federal Emergency Management
Agency) are subject to the section 7 consultation process. Federal
actions not affecting listed species or critical habitat, and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or permitted, do not require section 7
consultation.

Application of the ``Adverse Modification'' Standard

The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the primary constituent element(s) to be functionally established.
Activities that may destroy or adversely modify critical habitat are
those that alter the physical and biological features to an extent that
appreciably reduces the conservation value of critical habitat for
lynx. Generally, the conservation role of the proposed revised lynx
critical habitat units is to support viable populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that that when carried out, funded, or authorized by a
Federal agency, may adversely affect critical habitat and therefore
should result in consultation for the lynx include, but are not limited
to, the following:
(1) Actions that would reduce or remove understory vegetation
within boreal forest stands. Such activities could include, but are not
limited to, pre-commercial thinning or fuels treatment of forest
stands. These activities could significantly reduce the quality of
snowshoe hare habitat such that the landscape's ability to produce
adequate densities of snowshoe hares to support persistent lynx
populations is at least temporarily diminished. Where moist boreal
forest stands occur in a mosaic along with matrix habitat, the above
described activities within the matrix habitat portions of the unit
would not affect the physical and biological features essential to the
conservation of the lynx.
(2) Actions that would cause permanent loss or conversion of the
boreal forest. Such activities could include, but are not limited to,
recreational area developments, certain types of mining activities and
associated developments, and road building. Such activities would
eliminate and fragment lynx and snowshoe hare habitat. Where moist
boreal forest stands occur in a mosaic surrounded by matrix habitats,
the above described activities within the matrix habitat portion of the
unit would not affect the physical and biological features essential to
the conservation of the lynx.
(3) Actions that would increase traffic volume and speed on roads
that divide lynx critical habitat. Such activities could include, but
are not limited to, transportation projects to upgrade roads or
development of a new tourist destination. These activities could reduce
connectivity within the boreal forest landscape for lynx and could
result in increased mortality of lynx within the proposed revised
critical habitat units as lynx are highly mobile and frequently cross
roads during dispersal, exploratory movements, or travel within their
home ranges.
Note that the scale of these activities would be a crucial factor
in determining whether, in any instance, they would directly or
indirectly alter critical habitat to the extent that the value of the
critical habitat for the survival and recovery of lynx would be
appreciably diminished.
If you have questions regarding whether specific activities may
constitute destruction or adverse modification of critical habitat,
contact the Supervisor of the appropriate Ecological Services Field
Office (see list below).

----------------------------------------------------------------------------------------------------------------
State Address Phone No.
----------------------------------------------------------------------------------------------------------------
Maine............................................... 1168 Main Street, Old Town, Maine 04468 (207) 827-5938
Minnesota........................................... 4101 East 80th Street, Bloomington, (612) 725-3548
Minnesota 55425.
Montana............................................. 585 Shepard Way, Helena, Montana 59601. (406) 449-5225
Idaho and Washington................................ 11103 E. Montgomery Drive, Spokane, (509) 893-8015
Washington 99206.
Wyoming............................................. 5353 Yellowstone Road, Suite 308A, (307) 772-2374
Cheyenne, Wyoming 82009.
----------------------------------------------------------------------------------------------------------------

[[Page 10877]]

Application of Section 4(a)(3)(B)(i) of the Act

The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed
Integrated Natural Resource Management Plan within the proposed revised
critical habitat designation.

Application of Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. The Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
Under section 4(b)(2) of the Act, we must consider economic
impacts. We also consider a number of factors in a section 4(b)(2)
analysis. For example, we consider whether there are lands owned or
managed by the Department of Defense (DOD) where a national security
impact might exist. We also consider whether landowners having proposed
critical habitat on their lands have developed any conservation plans
for the area, or whether there are conservation partnerships that would
be encouraged by designation of, or exclusion from, critical habitat.
In addition, we look at any Tribal issues, and consider the government-
to-government relationship of the United States with tribal entities.
We also consider any social or other impacts that might occur because
of the designation. The National Environmental Policy Act (42 U.S.C.
4321 et seq.) (NEPA) analysis we will conduct may also disclose other
impacts we may consider in our section 4(b)(2) analysis.
We are conducting an updated economic analysis of the impacts of
the proposed critical habitat designation, which will be available for
public review and comment when it is complete. Based on public comment
on that document, the proposed designation itself, and the information
in the final economic analysis, the Secretary may exclude from critical
habitat additional areas beyond those identified in this assessment
under the provisions of section 4(b)(2) of the Act. This is also
addressed in our implementing regulations at 50 CFR 424.19.

Relationship of Critical Habitat to 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
``Consultation and Coordination with Indian Tribal Governments''; 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. 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 goal of managing for healthy ecosystems upon which
the viability of threatened and endangered species populations depend.
We believe that conservation of lynx can be achieved off of Tribal
lands within the critical habitat units or with the cooperation of
Tribes; the amount of Tribal lands within the proposed revised units is
relatively small: 86 mi\2\ (223 km\2\) in the Maine unit; 72 mi\2\ (187
km\2\) in the Minnesota unit; and 347 mi\2\ (898 km\2\) in the Northern
Rocky Mountains unit. No Tribal lands occur within the North Cascades
and GYA units. We have requested comment with regard to the Tribal
lands in the Northern Rocky Mountains, Maine, and Minnesota and whether
the conservation of lynx can occur with designation of critical habitat
on other lands.
The Tribal lands in the Northern Rockies unit (portions of the
Flathead Indian Reservation) are managed by the Confederated Salish and
Kootenai Tribes (CSKT) under a Forest Management Plan that incorporates
the provisions of the LCAS (CSKT 2000). The Tribes manage these lands
in a way that is consistent with lynx conservation.

Tribal Lands Under Consideration for Exclusion From Final Designation as
Critical Habitat
------------------------------------------------------------------------
Critical habitat unit Reservation or tribe
------------------------------------------------------------------------
Maine..................................... Maliseet Tribe.
Micmac Tribe.
Passamaquoddy Tribe.
Penobscot Tribe.
Minnesota................................. Grand Portage Indian
Reservation.
Vermillion Lake Indian
Reservation.
Northern Rocky Mountains.................. Flathead Indian Reservation.
North Cascades............................ None.
Greater Yellowstone Area.................. None.
------------------------------------------------------------------------

Economic Analysis

We conducted an analysis of the potential economic impacts of
proposing critical habitat for the lynx in 2006 when we designated
critical habitat. We will update that analysis with any new information
that may be available in addition to considering the economic impacts
on lands that are proposed in this revision but that were not
previously proposed. We will announce the availability of the draft
economic analysis as soon as it is completed, at which time we will
seek public review and comment. At that time, copies of the draft
economic analysis will be available on the Internet at
www.regulations.gov, on the Internet at http://www.mountain-
prairie.fws.gov/species/mammals/lynx/, or by contacting the Montana
Ecological Services Office directly (see FOR FURTHER INFORMATION
CONTACT).

Peer Review

In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our proposed revised critical habitat designation is based on
scientifically sound data, assumptions, and analyses. We have invited
these

[[Page 10878]]

peer reviewers to comment during this public comment period on our
specific assumptions and conclusions in this proposed designation of
revised critical habitat.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if we receive any requests for hearings. We must receive your request
for a public hearing within 45 days after the date of this Federal
Register publication. Send your request to an address listed in the
ADDRESSES section. We will schedule public hearings on this proposal,
if any are requested, and announce the dates, times, and places of
those hearings, as well as how to obtain reasonable accommodations, in
the Federal Register and local newspapers at least 15 days before the
first hearing.

Required Determinations

Regulatory Planning and Review (E.O 12866)

This document is not a significant rule and the Office of
Management and Budget (OMB) has not reviewed this proposed rule under
Executive Order 12866.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Under the Regulatory Flexibility Act (RFA, 5 U.S.C. 601, et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
Based on our 2005 proposed designation of critical habitat for lynx
(70 FR 68294) and associated draft economic analysis, we conducted a
preliminary evaluation of the effects to a substantial number of small
entities by considering the number of small entities affected within
particular types of economic activities (e.g., timber, recreation,
public and conservation land management, transportation, and mining).
We considered each industry or category individually. In estimating the
numbers of small entities potentially affected, we also considered
whether their activities have any Federal involvement. Some kinds of
activities are unlikely to have any Federal involvement and so will not
be affected by the designation of critical habitat. Designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies; other activities are not affected by
the designation.
If this revised proposed critical habitat designation is made
final, Federal agencies must consult with us if their activities may
affect designated critical habitat. Consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process. Private companies
may also be subject to consultation or mitigation impacts.
Several of the activities potentially affected by lynx conservation
efforts within the study area (timber, recreation, grazing) involve
small businesses. Given the rural nature of the proposed designation,
most of the potentially affected businesses in the affected regions are
small.
Our draft economic analysis of the 2005 proposed designation
evaluated the potential economic effects on small business entities and
small governments resulting from conservation actions related to the
listing of this species and proposed designation of its critical
habitat. We evaluated small business entities in the following
categories: timber activities; residential and commercial development;
recreation; public lands management and conservation planning;
transportation, utilities, and municipal activities; and mining
operations. Based on our analysis, impacts associated with small
entities are anticipated to occur to timber activities, recreation,
public lands management, conservation planning, transportation, and
mining. Because no information was available regarding how residential
and commercial development may be affected by lynx conservation, the
analysis does not quantify specific impacts to residential and
commercial development but rather provides the full option value for
development within the study area. Thus, residential and commercial
development impacts to small entities are not addressed in the SBREFA
screening analysis. We are seeking comments from potentially affected
small entities involved in timber activities, residential and
commercial development, recreation, and mining. The following is a
summary of the information contained in the draft economic analysis:
(a) Timber Activities
According to the draft economic analysis for the 2005 proposed
critical habitat, impacts on timberlands have historically resulted
from implementation of lynx management plans and project modifications.
The majority of forecast impacts on timber relate to potential
restrictions on pre-commercial thinning, with nearly half of these
impacts occurring on private timberland in Maine. The economic analysis
applied two scenarios to bound the impacts resulting from potential
changes to timber activities. Under Scenario 2, the upper bound, timber
impacts range from $15.6 million (discounted at 7 percent) to $33.3
million (discounted at 3 percent) over 20 years. When compared to
forestry-related earning across counties in the study area ($454
million in 2003), these potential losses are approximately 3 to 7
percent of total forestry-related earnings. Total forecast impacts to
timber activities range from $117 million to $808 million over 20
years. Exhibits C-1 through C-4 of the economic analysis quantify the
small timber companies that may be affected by the proposed rule.
However, the draft economic analysis states that it is uncertain
whether private timber companies will be affected by the designation of
critical habitat. Government agencies, such as the U.S. Forest Service,
are subject to critical habitat consultations.
(b) Residential and Commercial Development
Because specific information on how residential and commercial
development projects would mitigate for impacts to lynx and its habitat
is unknown, the draft economic analysis does not attempt to quantify
the economic impacts of mitigating development activities. Instead, it
presents the full value that may be derived from potential future
development within the potential critical habitat. The total projected
future development value of areas proposed for designation as critical
habitat for the lynx is approximately $2.26 billion. Approximately 69.1
percent ($1.56 billion) of this is the value of future development in
Minnesota (Unit 2); 25.7 percent ($579 million) of this is the value of
future development in Maine (Unit 1), of which $1.57 million is
proposed for exclusion; and 5.2 percent ($117 million) of this is the
value of future development in Montana. Lands

[[Page 10879]]

proposed for critical habitat in Washington are characterized by public
lands managed for timber and recreation. As such, residential and
commercial development is not considered to be a future land use, and
the value of these lands for future development is considered to be
negligible. Recognizing that approximately 80 percent of the projected
value of potential future residential and commercial development within
the area proposed as critical habitat consist of lands within Minnesota
and recognizing the potential effects on landowners and development
companies, we will consider this information pursuant to section
4(b)(2) of the Act during the development of the final designation.
No North American Industry Classification System (NAICS) code
exists for landowners, and the Small Business Administration does not
provide a definition of a small landowner. However, recognizing that it
is possible that some of the landowners may be small businesses, this
analysis provides information concerning the number of landowners
potentially affected: An upward estimate of 38 in Maine, 53 in
Minnesota, and 110 in Montana. It is possible that a portion of these
affected landowners could be small businesses in the residential or
commercial land development industry or could be associated businesses,
such as builders and developers. Actual conservation requirements
undertaken by an individual landowner will depend on how much of a
parcel lies within or affects proposed critical habitat. Individual
single-family home development has not historically been subject to
consultation or habitat conservation requirements for lynx, although
consultation could be required if Federal permits from the Army Corps
of Engineers, Environmental Protection Agency, or Federal Emergency
Management Agency are required.
For these reasons and because the scale of this revised proposed
critical habitat is significantly different than the 2005 proposed
critical habitat, we are requesting comments from any potentially
affected small businesses involved in residential and commercial
development activities, about the impacts resulting from the proposed
designation of critical habitat. How will small businesses, such as
landowners, builders or developers be affected by this critical habitat
designation? The economic analysis presents the full potential
development value of impacted lands within the potential critical
habitat as a baseline, but does not provide a cost estimate. How could
this estimate be refined to demonstrate how small businesses in the
residential and commercial development field will be affected by this
critical habitat designation? What would you suggest as another measure
of these costs?
(c) Recreation
Recreational activities that have the potential to affect the lynx
and its habitat include over-the-snow trails for snowmobiling and
cross-country skiing, accidental trapping or shooting, and recreation
area expansions such as ski resorts, campgrounds, or snowmobile areas.
Total forecast costs to all recreation activities in areas proposed for
designation are $1.05 to $3.46 million, or an annualized estimate of
$57,600 to $178,000 (applying a 7 percent discount rate) or $54,500 to
$175,000 (applying a 3 percent discount rate). Impacts to recreation
activity forecast in the draft analysis include welfare impacts to
individual snowmobilers; however, the level of participation is not
expected to change. As no decrease in the level of snowmobiling
activity is forecast, impacts to small businesses that support the
recreation sector are not anticipated.
Because the scale of this revised proposed critical habitat is
significantly different than the 2005 proposed critical habitat, we are
requesting comments from any potentially affected small businesses in
the involved in recreation activities, about the impacts resulting from
the proposed designation of critical habitat. What are the estimated
cost impacts of this proposed designation to your small business?
(d) Public lands management and conservation planning
The draft economic analysis for the 2005 proposed critical habitat
estimates that total post-designation costs of lynx conservation
efforts associated with public and conservation lands management in
areas proposed for designation to be approximately $12.8 million over
the next 20 years, or an annualized cost of $940,000 (present value
applying a 7 percent discount rate) or $767,000 (applying a 3 percent
discount rate). The majority of public lands are managed by Federal and
State entities that do not qualify as small businesses. As such,
designation of critical habitat for lynx is not anticipated to have a
significant impact on a substantial number of small businesses involved
in public lands management or conservation planning.
(e) Transportation, Utilities, and Municipal Activities
The draft economic analysis for the 2005 proposed critical habitat
estimates that total post-designation costs resulting from lynx
conservation efforts associated with transportation, utilities, and
municipal activities for areas proposed for designation will range from
$34.9 million to $55.1 million over the next 20 years, or an annualized
value of $1.9 to 2.9 million (present value applying a 7 percent
discount rate) or $1.8 to $2.8 million (present value applying a 3
percent discount rate). Of the total post-designation costs,
approximately 71 percent are attributed to transportation activities,
and 29 percent are attributed to utility and municipal activities.
Impacts to transportation and municipal projects are expected to be
borne by the Federal and State agencies undertaking lynx-related
modifications to these types of projects, including the Federal Highway
Administration, the Federal Emergency Management Agency, the U.S. Army
Corps of Engineers, and State transportation departments. Since Federal
and State entities do not qualify as small businesses, the designation
of critical habitat for the lynx is not anticipated to have a
significant impact on a substantial number of small businesses
associated with transportation, utilities, and municipal activities.
Impacts to dam projects, including costs of remote monitoring for
lynx that could be required for relicensing of dams, could be borne by
the companies that own the dams. In particular, 14 dams in Minnesota
and two in Maine are expected to consider lynx conservation at the time
of relicensing. The economic analysis estimated costs of $13,000 to
$18,000 to each of these 16 dam projects in 2025. Based on these small
costs, we do not anticipate that this would be a significant impact to
dam operators.
(f) Mining Operations
The draft economic analysis for the 2005 proposed critical habitat
estimates total post-designation costs resulting from lynx conservation
efforts associated with mining projects of approximately $430,000, or
an annualized rate of $38,000 (present value applying a 7 percent
discount rate) or $28,100 (present value applying a 3 percent discount
rate). Unit 2 (Minnesota) is the only area of potential critical
habitat for which future surface mining expansion and development
projects have been identified; specifically, three new or expanded
mining projects are forecast to occur on leased lands of Superior
National Forest. The greatest impact estimated is $375,000 or an
annualized impact of $33,100 for the East Reserve Mine, which has a
total value of $819 million,

[[Page 10880]]

which equates to less than a 1 percent annual impact to the mine
relative to its total value. There is an uncertainty for realized
impacts on the mining industry from lynx conservation activities.
Because the scale of this revised proposed critical habitat is
significantly different than the 2005 proposed critical habitat, we are
requesting comments from any potentially affected small businesses
involved in the mining industry, about the impacts resulting from the
proposed designation of critical habitat. What are the estimated cost
impacts of this proposed designation to your small business?
We evaluated small business entities relative to the revised
proposed designation of critical habitat for the lynx to determine
potential effects to these business entities and the scale of any
potential impact using, in part, the draft economic analysis for the
2005 proposed critical habitat. Based on our analysis, there may be
potential projected impacts associated with small entities in the areas
of timber activities, recreation, public lands management, conservation
planning, transportation, and mining. There is also a possibility of
potential projected impacts to development activities. Due to the lack
of information, the economic analysis for this critical habitat does
not attempt to assign development impacts to specific small entities,
rather leaving open the question of whether any small entities will be
affected. We have outlined above potential projected future impacts to
these entities resulting from conservation-related activities for the
lynx, and asked potential affected small entities for input as to what
the likely impacts will be for their industry sectors. We do, however,
recognize that there may be disproportionate impact to certain sectors
and geographic areas within lands proposed for designation. As such, we
will more fully evaluate these potential impacts during the development
of the final designation, and may, if appropriate, consider such lands
for exclusion pursuant to section 4(b)(2) of the Act.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding,'' and the State, local,
or tribal governments ``lack authority'' to adjust accordingly. At the
time of enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
(b) On the basis of the economic analysis for our previous
designation of critical habitat for the lynx in 2006, we do not believe
that this rule will significantly or uniquely affect small governments
because small governments will be affected only to the extent that any
programs having Federal funds, permits, or other authorized activities
must ensure that their actions will not adversely affect the critical
habitat. Therefore, we do not believe that a Small Government Agency
Plan is required at this time. However, as we conduct our revised
economic analysis, we will further evaluate this issue and revise this
assessment if appropriate.

Takings

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating revised
critical habitat for the lynx in a takings implications assessment. The
takings implications assessment concludes that this designation of
critical habitat for the lynx does not pose significant takings
implications for lands within or affected by the designation.

Federalism

In accordance with E.O. 13132, this proposed rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, our previous proposed critical habitat designation with
appropriate State resource agencies in Idaho, Maine, Minnesota,
Montana, Washington, and Wyoming. The information gathered in that
coordination effort was used in this revised proposal. We believe that
the designation of critical habitat for the lynx will have little
incremental impact on State and local governments and their activities.
The designation of critical habitat in areas currently occupied by the
lynx imposes no additional restrictions to those currently in place
and, therefore, has little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments because the areas that contain the physical and
biological features essential to the conservation of the species are
more clearly defined, and the PCE necessary to support the life
processes of the species are specifically identified. This information
does not alter where and what federally sponsored activities may occur.
However, it may assist local governments in long-range planning (rather
than having them wait for case-by-case consultations under section 7 of
the Act to occur).

[[Page 10881]]

Civil Justice Reform

In accordance with E.O. 12988, (Civil Justice Reform), the Office
of the Solicitor has determined that the rule does not unduly burden
the judicial system and that it meets the requirements of sections 3(a)
and 3(b)(2) of the Order. We have proposed designating revised critical
habitat in accordance with the provisions of the Act. This proposed
rule uses standard property descriptions and identifies the physical
and biological features essential to the conservation of the species
within the designated areas to assist the public in understanding the
habitat needs of the lynx.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This position was upheld by the Circuit Court of the United
States for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. Ore. 1995), cert. denied 516 U.S. 1042 (1996). However, when
the range of the species includes States within the tenth circuit, such
as that of the lynx, under the tenth circuit ruling in Catron County
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429
(10th Cir. 1996), we will undertake a NEPA analysis for critical
habitat designation and notify the public of the availability of a NEPA
document for this proposal.

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, the Department of Interior's
manual at 512 DM 2, and Secretarial Order 3206, we readily acknowledge
our responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. Tribal lands in the Maine, Minnesota,
and Northern Rocky Mountains units are included in this proposed
designation; however, we are asking the public if Tribal lands need to
be included as critical habitat in light of Secretarial Order 3206.

Energy Supply, Distribution, or Use

On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
While this proposed rule to revise critical habitat for the lynx is a
significant regulatory action under E.O. 12866 in that it may raise
novel legal and policy issues, we do not expect it to significantly
affect energy supplies, distribution, or use based on the economic
analysis we completed for the 2005 proposed lynx critical habitat rule.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required. However, we will further
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment as warranted.

References Cited

A complete list of all references cited in this rulemaking is
available online at http://mountain-prairie.fws.gov/species/mammals/
lynx/ or upon request from the Field Supervisor, Montana Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

The primary author(s) of this package are staff from the Maine and
Montana Ecological Services Offices.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

1. The authority 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. In Sec. 17.95(a), revise the entry for ``Canada lynx (Lynx
Canadensis)'' to read as follows:

Sec. 17.95 Critical habitat--fish and wildlife.

(a) Mammals.
* * * * *
Canada lynx (Lynx canadensis)
(1) Critical habitat units are depicted on the maps below for the
following States and counties:
(i) Idaho: Boundary County;
(ii) Maine: Aroostook, Franklin, Penobscot, Piscataquis, and
Somerset Counties;
(iii) Minnesota: Cook, Koochiching, Lake, and St. Louis Counties;
(iv) Montana: Flathead, Glacier, Granite, Lake, Lewis and Clark,
Lincoln, Missoula, Pondera, Powell, Teton, Gallatin, Park, Sweetgrass,
Stillwater, and Carbon Counties;

[[Page 10882]]

(v) Washington: Chelan and Okanogan Counties; and
(vi) Wyoming: Park, Teton, Fremont, Sublette, and Lincoln Counties.
(2) Within these areas the primary constituent element for the
Canada lynx is boreal forest landscapes supporting a mosaic of
differing successional forest stages and containing:
(i) Presence of snowshoe hares and their preferred habitat
conditions, including dense understories of young trees or shrubs tall
enough to protrude above the snow;
(ii) Winter snow conditions that are generally deep and fluffy for
extended periods of time;
(iii) Sites for denning having abundant, coarse, woody debris, such
as downed trees and root wads; and
(iv) Matrix habitat (e.g., hardwood forest, dry forest, non-forest,
or other habitat types that do not support snowshoe hares) that occurs
between patches of boreal forest in close juxtaposition (at the scale
of a lynx home range) such that lynx are likely to travel through such
habitat while accessing patches of boreal forest within a home range.
The important aspect of matrix habitat for lynx is that these habitats
retain the ability to allow unimpeded movement of lynx through them as
lynx travel between patches of boreal forest.
(3) Critical habitat does not include waterbodies (lakes, rivers,
streams), or man-made structures existing on the effective date of this
rule, such as buildings, airports, paved and gravel roadbeds, active
railroad beds, and the land on which such structures are located.
Critical habitat does not include the following towns or populated
areas as they exist now:
(i) Maine: Allagash, Ashland, Chapman, Dennistown, Dickey, Eagle
Lake, Frenchville, Grindstone, Jackman, Kokadjo, Oxbow, Portage,
Rockwood, Saint Francis, Saint John, Smyrna Center, Wallagrass,
Winterville.
(ii) Minnesota: Alger, Allen, Angora, Arnold, Aurora, Babbitt,
Baptism Crossing, Bartlett, Beaver Bay, Beaver Crossing, Belgrade, Bell
Harbor, Biwabik, Breda, Brimson, Britt, Burntside, Burntside Lake,
Buyck, Canyon, Castle Danger, Chippewa City, Clappers, Clifton, Cook,
Cotton, Covill, Cramer, Crane Lake, Croftville, Cusson, Darby Junction,
Duluth, Duluth Heights, Eagles Nest, East Beaver Bay, Ely, Embarrass,
Fairbanks, Falls Junction, Finland, Forest Center, Forsman, Four
Corners, Fredenberg, French River, Gappas Landing Campground, Genoa,
Gheen, Gheen Corner, Gilbert, Glendale, Grand Portage, Grand Marais,
Greenwood Junction, Haley, Happy Wanderer, Highland, Hornby, Hovland,
Hunters Park, Idington, Illgen City, Isabella, Island View, Jameson,
Jay See Landing, Jordan, Kabetogama, Kelly Landing, Kettle Falls, Knife
River, Lakewood, Larsmont, Lauren, Lax Lake, Leander, Lester Park,
Little Marais, Little Marais Postoffice, London, Lutsen, Makinen,
Manitou Junction, Maple, Maple Hill, Markham, Martin Landing, McComber,
McNair, Melrude, Midway, Murphy City, Murray, Norshor Junction, Orr,
Palmers, Palo, Peyla, Pigeon River, Pineville, Prairie Portage, Ranier,
Red Rock, Reno, Robinson, Rollins, Rothman, Salo Corner, Sawbill
Landing, Schroeder, Scott Junction, Section Thirty, Sha-Sha Resort,
Shaw, Silver Bay, Silver Creek, Silver Rapids, Skibo, Soudan, South
International Falls, Sparta, Spring Lodge Resort and Marina, Stewart,
Taconite Harbor, Taft, Thunderbird Resort, Tofte, Toimi, Tower, Tower
Junction, Two Harbors, Wahlsten, Wakemup, Waldo, Wales, Wheeler
Landing, White Iron, Whiteface, Whyte, Winter, Winton, Woodland, York.
(iii) Montana: Aldridge, Alpine, Avon, Beartown, Bison, Blacktail,
Blossburg, Brock Creek, Calamity Janes Trailer Court, Cassidy Curve,
Coloma, Contact, Cooke City, Copper Cliff, Corwin Springs, Coughlin,
Crystal Ford, Crystal Point, Dodge Summit, Dutton, Electric, Elliston,
False Summit, Finn, Forest Heights, Frontier Town, Gardiner, Garnet,
Geary, George Norman Trailer Court, Helmville, Huckleberry Trailer
Court, Independence, Jardine, Keiley, Kotke, Limestone, Lincoln,
Mannix, McDonald, McGillvary, Meyers Creek, Mountain View, Ovando,
Packers, Quigley, Reynolds City, Ricci Trailer Terraces, Rising Sun,
Riverside, Rocky Mountain Trailer Park, Silver Gate, Singleshot, Siyeh
Bend, Skyline, Snowslip, Sperry Chalets, Sphinx, Springtown, Stoner
Place, Summit, Swiftcurrent, Three Forks, Top O'Deep, White City,
Woodworth, Yreka.
(iv) Wyoming: Afton, Bannock Ford, Bedford, Bondurant, Buffalo
Ford, Canyon Junction, Canyon Village, Devils Den, DuNoir, Etna, Fossil
Forest, Hoback, Hoback Junction, Jack Pine, Mammoth, Osmond Community,
Pahaska Tepee, Sylvan Bay Summer Home Area, Thayne, Tower Junction,
Turnerville, Yanceys.
(4) Index map for lynx critical habitat follows:
BILLING CODE 4310-55-P

[[Page 10883]]

[GRAPHIC] [TIFF OMITTED] TP28FE08.000

[[Page 10884]]

(5) Unit 1: Northern Maine; Aroostook, Franklin, Penobscot,
Piscataquis and Somerset Counties, Maine.
(i) Coordinate projection: UTM, NAD83, Zone 19, Meters. Coordinate
definition: (easting, northing). Starting at Maine/Canada Border (SW
corner of Merrill Strip Twp.) (371910, 5028021), follow township
boundary east to SE corner of Skinner Twp. (383434, 5029673). Follow
township boundary SE to SW corner of T5 R6 Twp. (383438, 5029673).
Follow township boundaries NE to boundary of Moosehead Lake (450963,
5036788). Follow Moosehead Lake boundary to intersection with Beaver
Cove Twp. (452704, 5040915). Follow township boundary to Moosehead Lake
boundary (453125, 5040999). Follow Moosehead Lake boundary to township
boundary (453705, 5041123). Follow township boundary to NW corner of
Bowdoin College Grant West Twp. (460415, 5042546). Follow township
boundary to SW corner of township (462537, 5032002). Follow township
boundaries to intersection with State Highway 11 in Long A Twp.
(506181, 5040542). Follow State Highway 11 NE to intersection with T4
Indian Purchase Twp. Boundary (515204, 5052175). Follow township
boundary NW to SW corner of T1 R8 Twp. (513460, 5059043). Follow
township boundary NE to intersection with Grindstone Twp. Boundary
(523967, 5061550). Follow township boundary south and east to
intersection with State Highway 11 (533826, 5057404). Follow State
Highway 11 north to intersection with Soldiertown Twp. boundary
(533178, 5067644). Follow township boundary east to SE corner of
township (534261, 5067639), then follow township boundaries north to SE
corner of T6 R7 Twp. (533735, 5108030). Follow township boundaries east
to intersection with U.S. Highway 2 (563731, 5108104). Follow U.S.
Highway 2 to intersection with New Limerick Twp. boundary (584664,
5109885). Follow township boundaries north to intersection with U.S.
Highway 1 (583834, 5153895). Follow U.S. Highway 1 NW to intersection
with Westfield Twp. boundary (579218, 5160782). Follow township
boundary west to intersection with Chapman Twp. boundary (572903,
5160530). Follow township boundary north to NE corner of township
(572577, 5168198). Follow township boundaries west to intersection with
Ashland Twp. boundary (553502, 5167377). Follow township boundaries
north to SW corner of Westmanland Twp. (553279, 5197228). Follow
township boundary east to SE corner of township (562523, 5197586).
Follow township boundaries north to intersection with State Highway 161
(562361, 5209395). Follow State Highway 161 NE to New Canada Twp.
boundary (536315, 5227346). Follow township boundaries west to NW
corner of Wallagrass Twp. (522883, 5227037). Follow township boundaries
north to Maine/Canada border (522876, 5231986). Follow Maine/Canada
border to beginning.
(ii) Map of Northern Maine Unit follows:

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[[Page 10886]]

(6) Unit 2: Northeastern Minnesota; Cook, Koochiching, Lake, and
St. Louis Counties.
(i) Coordinate Projection: UTM, NAD83, Zone 15, Meters. Coordinate
Definition: (easting, northing)
(ii) Starting at the intersection (470383, 5383928) of the
Minnesota/Canada border and U.S. Highway 53, follow U.S. Highway 53 to
the intersection (533455, 5265811) with the north boundary of T. 58N,
R. 17W, Section 6. Follow the section line east to the NE corner of
section 6 (534436, 5265846). Follow the section line north to the NW
corner of T. 59N, R. 17W, Section 29 (534449, 5269188). Follow the
section line east to the NE corner of T. 59N R. 17W, Section 28
(537595, 5269278). Follow the section line north to the NW corner of T.
59N, R. 17W, Section 22 (537612, 5270884). Follow the section east to
the NE corner of section 22 (539244, 5270743). Follow the section line
north to the NW corner of T. 59N, R. 17W, Section 14 (539166, 5272477).
Follow the section line east to the NE corner of T. 59N, R. 17W,
Section 13 (542538, 5272377). Follow the section line south to the SE
corner of T. 59N, R, 17W, Section 24 (542468, 5269207). Follow the
section line west to the SW corner of section 24 (540886, 5269302).
Follow the section line south to SE corner of T. 59N, R. 17W, Section
26 (540871, 5267661). Follow the section line west to the SW corner of
section 26 (539258, 5267619). Follow the section line south to the SE
corner of T. 58N, R. 17W, Section 15 (539373, 5261082). Follow the
section line west to the intersection with U.S. Highway 53 (535956,
5261013). Follow U.S. Highway 53 to the intersection with U.S.
Interstate 35/State Highway 61 (568056, 5180758). Follow U.S.
Interstate 35/Highway 61 to coordinate 568974, 5181862. Go
approximately 178 meters east to the shore of Lake Superior (569151,
5181874). Follow the shore of Lake Superior to the Minnesota/Canada
border (761503, 5322824). Follow the Minnesota/Canada border to the
beginning. This area is found within the following USGS 1:24000 Quads;
Pine Mountain, Grand Marais, Kadunce River, Marr Island, Hovland,
Mineral Center OE S, Good Harbor Bay OE E, Linden Grove, Cook, Sassas
Creek, Lost Lake, Tower, Idington, Britt, Biwabik NE, Biwabik NW,
Virginia, McKinley, Biwabik, Eveleth, Gilbert, Palo, Central Lakes,
Makinen, Zim, Cotton, Whiteface, Canyon, Shaw, Twig, Independence,
Adolph, Ranier OE N, Island View OE N, Cranberry Bay OE N, Soldier
Point OE N, Ranier, Island View, Cranberry Bay, Soldier Point, Kempton
Bay, Kettle Falls, International Falls, Kabetogama, Daley Bay, Ash
River NE, Namakan Island, Hale Bay, Ericsburg, Ray, Redhorse Bay, Ash
River SW, Ash River SE, Marion Lake, Johnson Lake, Crane Lake, Snow
Bay, Ash Lake, Orr NE, Elephant Lake, Kabustasa Lake, Echo Lake, Lake
Jeanette, Orr, Myrtle Lake, Buyck, Picket Lake, Astrid Lake, Gheen,
Haley, Norwegian Bay, Vermilion Dam, Sioux Pine Island, Coleman Island,
Iron Lake OE N, Takucmich Lake, Shell Lake, Lake Agnes, Iron Lake,
Friday Bay, Jackfish Lake, Dutton Lake, Ester Lake, Munker Island,
Conners Island, Bootleg Lake, Lapond Lake, Angleworm Lake, Fourtown
Lake, Ensign Lake West, Ensign Lake East, Kekekabic Lake, Ogishkemuncie
Lake, Gillis Lake, Long Island Lake, Gunflint Lake, South Lake, Hungry
Jack Lake, Crocodile Lake, Pine Lake West, Pine Lake East, South Fowl
Lake, The Cascades, Grand Portage OE N, Pigeon Point OE N, Basswood
Lake West, Basswood Lake East, Pigeon Point OE NE, Ely, Farm Lake,
Alice Lake, Lake Polly, Kelso Mountain, Cherokee Lake, Brule Lake,
Eagle Mountain, Lima Mountain, Tom Lake, Farquhar Peak, Mineral Center,
Grand Portage (digital), Pigeon Point (digital), Crab Lake, Northern
Light Lake, Boulder Lake Reservoir, Thompson Lake, Barrs Lake, McCarthy
Creek, Two Harbors, Castle Danger, Split Rock Point OE S, Arnold,
French River, Knife River, Two Harbors OE S, Fredenberg, Duluth,
Lakewood, Duluth Heights, Chad Lake, Lake Insula, Shagawa Lake, Ojibway
Lake, Snowbank Lake, Soudan, Eagles Nest, Bear Island, Bogberry Lake,
Quadga Lake, Isabella Lake, Perent Lake, Kawishiwi Lake, Beth Lake,
Sawbill Camp, Tait Lake, Mark Lake, Devil Track Lake, Kangas Bay,
Gabbro Lake, Embarrass, Babbitt, Slate Lake West, Slate Lake East,
Mitawan Lake, Sawbill Landing, Silver Island Lake, Wilson Lake, Toohey
Lake, Honeymoon Mountain, Lutsen, Isaac Lake, Babbitt NE, Deer Yard
Lake, Good Harbor Bay (digital), Aurora, Allen, Babbitt SW, Babbitt SE,
Greenwood Lake West, Greenwood Lake East, Isabella, Cabin Lake, Cramer,
Schroeder, Lutsen OE S, Isabella Station, Tofte, Turpela Lake, Bird
Lake, Skibo, Cloquet Lake, Doyle Lake, Little Marais OE E, Toimi, Mount
Weber, Whyte, Finland, Little Marais (digital), Whiteface Reservoir,
Harris Lake, Fairbanks, Brimson, Legler Lake, Silver Bay SW, Silver
Bay, Illgen City, Kane Lake, Comstock Lake, Pequaywan Lake, King Lake,
Split Rock Point, Split Rock Point NE, Boulder Lake Reservoir NE,
Highland, Two Harbors NE. This entire area is designated proposed
critical habitat expect for the following lands: T. 58N, R.17W,
Sections 13, 24-26; T. 58N, R. 16W, Sections 3, 8-10,16,17; T. 58N, R
15W, Sections 1-3,11,12; T. 58N R. 14W, Sections 3[nd]ash;10; T. 59N,
R. 15W, Sections 21-28, 33-36; T. 59N, R. 14W, Sections 1-5, 8-23, 27-
34; T. 59N., R. 13W, Sections 5,6; T. 60N, R. 14W, Sections 32-34, 36;
T. 60N, R. 13W, Sections 22-28, 31-35; T. 60N, R.12W Sections 2, 3, 10,
15-20, 30; T. 61N, R. 12W, Sections 12, 35. These areas area found
within the following USGS 1:24000 Quads; McKinley, Bawabik, Gilbert,
Embarrass, Babbitt, IsaacLake, Babbitt NE, Aurora, Allen
(iii) Map of Northeastern Minnesota unit follows:

[[Page 10887]]

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[[Page 10888]]

(7) Unit 3: Northern Rocky Mountains; Boundary County, Idaho;
Flathead, Glacier, Granite, Lake, Lewis and Clark, Lincoln, Missoula,
Pondera, Powell, and Teton Counties, Montana.
(i) Coordinate Projection: UTM, NAD83, Zone 12, Meters. Coordinate
Definition: (easting, northing).
(A) Starting at the intersection of the Idaho/Canada border and
4000 feet elevation contour (122032, 5440460), follow the 4000 feet
elevation contour to intersection with Montana/Canada border (151617,
5438492). Follow Montana/Canada border west to intersection with 4000
feet elevation contour (147739, 5438749). Follow 4000 feet elevation
contour to intersection with Montana/Canada border (147356, 5438775).
Follow Idaho/Montana/Canada border west to beginning. This area is
found within the following USGS 1:24000 Quads; Eastport, Canuck Peak,
Northwest Peak, Garver Mountain, Bonnet Top, Yaak, Clark Mountain,
Mount Baldy, Line Point, Meadow Creek, Curley Creek, and Newton
Mountain.
(B) Starting at the intersection of the Montana/Canada border and
4000 feet elevation contour (152307, 5438447), follow the 4000 feet
elevation contour to intersection with Montana/Canada border (157205,
5438130). Follow Montana/Canada border west to beginning. This area is
found within the following USGS 1:24000 Quads; Garver Mountain and
Bonnet Top.
(C) Starting at coordinate (158408, 5437023), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quad; Bonnet Top.
(D) Starting at coordinate (160775, 5430791), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Bonnet Top and Mount Henry.
(E) Starting at coordinate (161176, 5427344), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Bonnet Top, Mount Henry, Yaak, and Lost Horse
Mountain.
(F) Starting at the intersection of the Montana/Canada border and
4000 feet elevation contour (163418, 5437730), follow the 4000 feet
elevation contour to intersection with Montana/Canada border (186741,
5436254). Follow Montana/Canada border west to beginning. This area is
found within the following USGS 1:24000 Quads; Mount Henry, Robinson
Mountain, Red Mountain, Webb Mountain, Boulder Lakes, Lost Horse
Mountain, Yaak, Clark Mountain, Mount Baldy, Sylvanite, Flatiron
Mountain, Pink Mountain, Parsnip Mountain, Inch Mountain, Volcour,
Ural, Banfield Mountain, Gold Hill, Turner Mountain, Alexander
Mountain, and Vermiculite Mountain.
(G) Starting at coordinate (143538, 5402032), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Sylvanite, Flatiron Mountain, Turner Mountain,
Pulpit Mountain, Kilbrennan Lake, Kootenai Falls, and Scenery Mountain.
(H) Starting at coordinate (154367, 5393646), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Turner Mountain, Gold Hill, Libby, and Scenery
Mountain.
(I) Starting at coordinate (174032, 5379043), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Vermiculite Mountain and Alexander Mountain.
(J) Starting at coordinate (199737, 5417559), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Webb Mountain, Beartrap Mountain, Eureka South,
Inch Mountain, McGuire Mountain, Pinkham Mountain, Edna Mountain,
Volcour, Davis Mountain, Skillet Mountain, Alexander Mountain, Cripple
Horse Mountain, Warland Peak, Bowen Lake, Tony Peak, Richards Mountain,
Wolf Prairie, and Fisher Mountain.
(K) Starting at coordinate (217651, 5399051), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Stryker, Skillet Mountain, Sunday Mountain, Radnor,
Bowen Lake, Dunsire Point, Johnson Peak, Tally Lake, Wolf Prairie,
Horse Hill, Sylvia Lake, Ashley Mountain, Lost Creek Divide, Rhodes,
Deer Creek, Lynch Lake, Dahl Lake, Pleasant Valley Mountain, Lone Lake,
Blue Grass Ridge, Thompson Lakes, Meadow Peak, McGregor Peak, Marion,
Haskill Mountain, and Kila.
(L) Starting at the intersection of the Montana/Canada border and
4000 feet elevation contour (205956, 5435192), follow the 4000 feet
elevation contour to intersection with Montana/Canada border (245279,
5433300). Follow Montana/Canada border west to beginning. This area is
found within the following USGS 1:24000 Quads; Eureka North, Ksanka
Peak, Stahl Peak, Tuchuck Mountain, Mount Hefty, Trailcreek,
Polebridge, Whale Buttes, Red Meadow Lake, Mount Thompson-Seton, Mount
Marston, Fortine, Stryker, Bull Lake, Upper Whitefish Lake, Moose Peak,
Cyclone Lake, Demers Ridge, Huckleberry Mountain, Skookoleel Creek,
Werner Peak, Olney, Beaver Lake, Whitefish, and Columbia Falls North.
(M) Starting at coordinate (263061, 5395697), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Demers Ridge and Huckleberry Mountain.
(N) Starting at coordinate (269763, 5390173), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; McGee Meadow, Huckleberry Mountain, and Hungry
Horse.
(O) Starting at coordinate (268105, 5372525), follow 4000 feet
elevation contour to beginning. This area is found within the following
USGS 1:24000 Quads; Columbia Falls North and Hungry Horse.
(P) Starting at the intersection of the Montana/Canada border and
4000 feet elevation contour (247220, 5433213), follow the 4000 feet
elevation contour to intersection with Interstate Highway 90 (338356,
5167811). Follow Interstate Highway 90 to intersection with USFS
boundary (402512, 5159444). Follow USFS boundary to NPS boundary
(334101, 5364611). Follow NPS boundary to intersection with Montana/
Canada border (309104, 5430544). Follow Montana/Canada border west to
intersection with 4000 feet elevation contour (247562, 5433194). Follow
4000 feet elevation contour to intersection with Montana/Canada border
(247373, 5433204). Follow Montana/Canada border west to beginning. This
area is found within the following USGS 1:24000 Quads; Trailcreek,
Kintla Lake, Kintla Peak, Mount Carter, Porcupine Ridge, Mount
Cleveland, Gable Mountain, Chief Mountain, Babb, Lake Sherburne, Many
Glacier, Ahern Pass, Mount Geduhn, Vulture Peak, Quartz Ridge,
Polebridge, Demers Ridge, Camas Ridge West, Camas Ridge East, Mount
Cannon, Logan Pass, Rising Sun, Saint Mary, Kiowa, Cut Bank Pass, Mount
Stimson, Mount Jackson, Lake McDonald East, Lake McDonald West, McGee
Meadow, West Glacier, Nyack, Stanton Lake, Mount Saint Nicholas, Mount
Rockwell, Squaw Mountain, East Glacier Park, Mitten Lake, Half Dome
Crag, Hyde Creek, Summit, Blacktail, Essex, Pinnacle, Mount Grant,
Nyack SW, Doris Mountain, Columbia Falls South, Hash Mountain, Jewel
Basin, Pioneer Ridge, Felix Ridge, Nimrod, Mount Bradley, Red Plum
Mountain, Crescent Cliff, Morningstar Mountain, Swift Reservoir, Fish
Lake, Volcano Reef, Walling Reef, Gateway Pass, Gooseberry Peak, Gable
Peaks, Capitol Mountain, Horseshoe Peak, Circus Peak, Quintonkon, Big
Hawk Mountain, Crater Lake, Woods Bay, Yew Creek, Swan Lake, Connor
Creek, Tin Creek, Spotted Bear Mountain, Whitcomb Peak, Trilobite Peak,
Pentagon Mountain, Porphyry Reef, Mount Wright, Cave Mountain, Ear
Mountain, Our Lake,

[[Page 10889]]

Gates Park, Three Sisters, Bungalow Mountain, Cathedral Peak, Meadow
Creek, String Creek, Thunderbolt Mountain, Cilly Creek, Porcupine
Creek, Cedar Lake, Salmon Prairie, Swan Peak, Sunburst Lake, Marmot
Mountain, Pagoda Mountain, Amphitheatre Mountain, Slategoat Mountain,
Glenn Creek, Arsenic Mountain, Castle Reef, Sawtooth Ridge, Patricks
Basin, Pretty Prairie, Prairie Reef, Haystack Mountain, Big Salmon Lake
East, Big Salmon Lake West, Holland Peak, Condon, Peck Lake, Piper-Crow
Pass, Mount Harding, Hemlock Lake, Cygnet Lake, Holland Lake Shaw
Creek, Una Mountain, Pilot Lake, Trap Mountain, Benchmark, Wood Lake,
Double Falls, Bean Lake, Steamboat Mountain, Jakie Creek, Scapegoat
Mountain, Flint Mountain, Danaher Mountain, Hahn Creek Pass, Crimson
Peak, Morrell Lake, Lake Inez, Lake Marshall, Gray Wolf Lake, Saint
Marys Lake, Upper Jocko Lake, Seeley Lake West, Seeley Lake East,
Morrell Mountain, Dunham Point, Spread Mountain, Lake Mountain, Olson
Peak, Heart Lake, Caribou Peak, Blowout Mountain, Rogers Pass, Cadotte
Creek, Silver King Mountain, Stonewall Mountain, Arrastra Mountain,
Coopers Lake, Ovando Mountain, Ovando, Woodworth, Salmon Lake, Belmont
Point, Gold Creek Peak, Wapiti Lake, Stuart Peak, Evaro, Northwest
Missoula, Northeast Missoula, Blue Point, Sunflower Mountain, Potomac,
Greenough, Bata Mountain, Chamberlain Mountain, Browns Lake, Marcum
Mountain, Moose Creek, Lincoln, Swede Gulch, Stemple Pass Wilborn,
Granite Butte, Nevada Mountain, Finn, Nevada Lake, Helmville, Chimney
Lakes, Wild Horse Parks, Elevation Mountain, Union Peak, Mineral Ridge,
Clinton, Bonner, Iris Point, Ravenna, Medicine Tree Hill, Bearmouth,
Drummond, Limestone Ridge, Bailey Mountain, Windy Rock, Gravely
Mountain, Ophir Creek, Esmeralda Hill, Greenhorn Mountain, Austin,
Black Mountain, MacDonald Pass, Elliston, Avon, Luke Mountain,
Garrison, Griffin Creek, Dunkleberg Creek, Saint Ignatius, Ravalli,
Saddle Mountain, Arlee, Gold Creek, and Belmore Slough.
(iii) Map of Northern Rocky Mountains unit follows:

[[Page 10890]]

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[[Page 10891]]

(8) Unit 4: North Cascades; Chelan and Okanogan Counties,
Washington.
(i) Coordinate Projection: UTM, NAD83, Zone 11, Meters. Coordinate
Definition: (easting, northing). Starting at the Washington/Canada
border (Whatcom/Okanogan Counties boundary--``Cascade Crest'') (218319,
5434639), follow the ``Cascade Crest'' south to coordinate (200268,
5369981). Go south approximately 250 meters (200241, 5369733) to
watercourse (headwaters--Flat Creek). Follow watercourse (Flat Creek)
to intersection with 4000 feet elevation contour (201629, 5366872)
(Cascade Pass Quad--USGS 1:24000). Follow 4000 feet elevation contour
to intersection with Washington/Canada border (298810, 5431112). Follow
Washington/Canada border west to intersection with 4000 feet elevation
contour (240301, 5433596). Follow 4000 feet elevation contour to
intersection with Washington/Canada border (239526, 5433632). Follow
Washington/Canada border to beginning. This area is found within the
following USGS 1:24000 Quads; Skagit Peak, Castle Peak, Frosty Creek,
Ashnola Mountain, Ashnola Pass, Remmel Mountain, Bauerman Ridge,
Horseshoe Basin, Hurley Peak, Nighthawk, Tatoosh Buttes, Shull
Mountain, Pasayten Peak, Mount Lago, Mount Barney, Coleman Peak, Corral
Butte, Duncan Ridge, Loomis, Lost Peak, Billy Goat Mountain, Azurite
Peak, Slate Peak, Robinson Mountain, McLeod Mountain, Sweetgrass Butte,
Doe Mountain, Spur Peak, Tiffany mountain, Coxit Mountain, Blue Goat
Mountain, Forbidden Peak, Mount Logan, Mount Arriva, Washington Pass,
Silver Star Mountain, Mazama, Lewis Butte, Pearrygin Peak, Old Baldy,
Conconully West, Rendevous Mountain, Conconully East McGregor Mountain,
McAlester Mountain, Gilbert, Midnight Mountain, Thompson Ridge, Loup
Loup Summit, Buck Mountain, Cascade Pass, Goode Mountain, Blue Buck
Mountain, Stehekin, Sun Mountain, Oval Peak, Hoodoo Peak, Twisp West,
Thrapp Mountain, Chiliwist Valley, Lucerne, Prince Creek, Martin Peak,
Hungry Mountain, Big Goat Mountain, South Navarre Peak, Oss Peak,
Cooper Mountain, Pateros, Manson, Cooper Ridge, and Azwell.
(ii) Map of North Cascades unit follows:

[[Page 10892]]

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[[Page 10893]]

(9) Unit 5: Greater Yellowstone Area; Gallatin, Park, Sweetgrass,
Stillwater, and Carbon counties in Montana; Park, Teton, Fremont,
Sublette, and Lincoln Counties, Wyoming.
(i) Coordinate Projection: UTM, NAD83, Zone 12, Meters; Coordinate
Definition: (easting, northing). Starting at the intersection (480972,
5041390) of U.S. Highway 191 and the north boundary of T. 4S, R. 4E,
Section 4, follow U.S. Highway 191 to the intersection (4484464,
4989013) with Yellowstone National Park (NP) boundary. Follow the
Yellowstone NP boundary to the intersection (492295, 4945003) with U.S.
Highway 20. Follow U.S. Highway 20 (Entrance Road) to the intersection
(511252, 4943604) with Grand Loop Road. Follow Grand Loop Road to the
intersection (524028, 4952481) with Norris Canyon Road. Follow Norris
Canyon Road to the intersection (539780, 4951312) with Grand Loop Road.
Follow Grand Loop Road to the intersection (548580, 4935153) with U.S.
Highway 20. Follow U.S. Highway 20 to coordinate 557355, 4928610. Go
southeasterly approximately 62 meters (557295, 4928602) to the shore of
Yellowstone Lake. Follow the shore of Yellowstone Lake to coordinate
535146, 4915754. Go west approximately 960 meters to the intersection
(534188, 4915753) with U.S. Highway 89/287. Follow U.S. Highway 89/287
to the intersection (526800, 4886642) with the Yellowstone NP boundary.
Follow the Yellowstone NP boundary to the intersection (527033,
4886643) with the Bridger-Teton National Forest (NF) boundary. Follow
the Bridger-Teton NF boundary to the intersection (520702, 4802862)
with U.S. Highway 26. Follow U.S. Highway 26 to the intersection
(498488, 4779960) with U.S. Highway 89. Follow U.S. Highway 89 to the
intersection (505452, 4703698) with the east boundary of T. 29N, R.
118W, Section 19. Follow the section line to the intersection (505447,
4699501) with the Bridger-Teton NF boundary. Follow the Bridger-Teton
NF boundary to the NW corner (597743, 4754744) of T. 34N, R. 108W,
Section 7. Follow the section line to the SW corner (599399, 4754756)
of T. 34N, R. 108W, Section 5. Follow the section line to the NW corner
(599380, 4756357) of section 5. Follow the section line to the SE
corner (607400, 4756477) of T. 35N, R. 108W Section 36. Follow the
section line to the NW corner (607286, 4765982) of T. 35N, R. 107W,
Section 6. Follow the section line to the intersection (617268,
4766147) with USFS-Fitzpatrick Wilderness boundary. Follow the
Fitzpatrick Wilderness boundary to the intersection (599238, 4811188)
with the west boundary of T. 40N, R. 108W, Sectiom12. Follow the
section line to the NW corner (599108, 4812285) section 12. Follow the
section line to coordinate 601191, 4812390. Go north to the
intersection (661183, 4812925) with the Fitzpatrick Wilderness
boundary. Follow the Fitzpatrick Wilderness boundary to the
intersection (609608, 4816305) with Shoshone NF boundary. Follow the
Shoshone NF boundary to the SE corner (629592, 4834753) of T. 43N, R.
105W, Section 25. Follow the section line to the intersection (628768,
4860150) with the Fremont County, WY boundary. Follow the Fremont
County boundary to coordinate 588156, 4866541. Go north approximately
20.6 KM/12.8 miles to coordinate 587881, 4887097. Follow a route which
is approximately 9.2 km/5 miles east of the Yellowstone NP boundary to
the intersection (599376, 4957892) with the south boundary of T. 55N,
R. 107W, Section 3. Follow the section line to the SE corner (623296
4958237) of T. 55N, R. 105W, Section 1. Follow the section line to the
NE corner (623068, 4969812) of T. 56N, R.105W, Section 1. Follow the
section line to the SE corner (619728, 4969746) of T. 57N, R. 105W,
Section 36. Follow the section line to the NW corner (619373, 4984494)
of T. 58N, R. 104W, section 18 (Montana/Wyoming border). Follow the
state border to the SE corner (622659, 4984617) of T. 9S, R. 18E,
Section 36. Follow the section line to the intersection (622048,
5009101) with the Custer NF boundary. Follow the Custer NF boundary to
the SE corner (593114, 5028792) of T. 5S, R. 15E, Section 12. Follow
the section line to the NE corner (592962, 5041683) of T 4S, R. 15E,
Section 1. Follow the section line to the intersection (538520,
5041519) with the Custer NF boundary. Follow the Custer NF boundary to
the SE corner (506528, 5004163) of T. 7S, R6E, Section 25. Follow the
section line to the intersection (506549, 5010565) with the Custer NF
boundary. Follow the Custer NF boundary to the NW corner (514340,
5041288) of T. 4S, R. 7E, Section 1. Follow the section line to the
beginning. This area is found within the following USGS 1:24000 Quads;
Alpine, Pine Creek, Bailey Lake, Ferry Peak, Clause Peak, Bondurant,
Raspberry Ridge, Stewart Peak, Deer Creek, Noble Basin, Kismet Peak,
Etna, Pickle Pass, Hoback Peak, Thayne West, Thayne East, Man Peak,
Blind Bull Creek, Lookout Mountain, Prospect Peak, Merna, Park Creek,
Triple Peak, Maki Creek, Grover, Rock Lake Peak, Red Top Mountain, Box
Canyon Creek, Mount Schidler, Red Castle Creek, Afton, Smoot, Poison
Meadows, Wyoming Peak, Springman Creek, Mount Wagner, Salt Flat,
Porcupine Creek, Graham Peak, Mount Thompson, Pine Grove Ridge, Big
Park, Coal Creek, Lake Mountain, Devils Hole Creek, Nugent Park, Pole
Creek, Fontenelle Basin, Ousel Falls, Lone Indian Peak, Ramshorn Peak,
Miner, Dome Mountain, Iron Mountain, Monitor Peak, Mineral Mountain,
Mount Wallace, Sunshine Point, Big Horn Peak, Sportsman Lake, Electric
Peak, Gardiner, Ash Mountain, Specimen Creek, Hummingbird Peak, Divide
Lake, Joseph Peak, Quadrant Mountain, Mammoth, Blacktail Deer Creek,
Tower Junction, Lamar Canyon, Three Rivers Peak, Mount Holmes, Obsidian
Cliff, Cook Peak, Mount Washburn, Amethyst Mountain, Ruby Mountain,
Gallatin Gateway, Beacon Point, Garnet Mountain, Gallatin Peak, Hidden
Lake, Wheeler Mountain, Mount Ellis, Bald Knob, Brisbin, Livingston
Peak, Mount Rae, Mount Blackmore, Big Draw, Dexter Point, Mount Cowen,
West Boulder Plateau, Fridley Peak, The Sentinel, Lewis Creek, Dailey
Lake, Emigrant, Knowles Peak, The Pyramid, The Needles, Richards Creek,
West Yellowstone, Mount Jackson, Madison Junction, Norris Junction,
Crystal Falls, Canyon Village, White Lake, Lake, Lake Butte, West
Thumb, Dot Island, Frank Island, Lewis Falls, Mount Sheridan, Heart
Lake, Alder Lake, Lewis Canyon, Mount Hancock, Crooked Creek, Snake Hot
Springs, Gravel Peak, Flagg Ranch, Huckleberry Mountain, Bobcat Ridge,
Two Ocean Lake, Whetstone Mountain, Hunter Mountain, Moran, Davis Hill,
Rosies Ridge, Shadow Mountain, Mount Leidy, Green Mountain, Blue Miner
Lake, Grizzly Lake, Gros Ventre Junction, Upper Slide Lake, Jackson,
Darwin Peak, Cache Creek, Turquoise Lake, Crystal Peak, Munger
Mountain, Camp Davis, Bull Creek, Granite Falls, Doubletop Peak, Joy
Peak, Crater Lake, Younts Peak, Hardluck Mountain, Mount Burwell, Ferry
Lake, Emerald Lake, Dundee Meadows, Shoshone Pass, Five Pockets, Snow
Lake, Angle Mountain, Togwotee Pass, Wiggins Peak, Tripod Peak, Lava
Mountain, Kisinger Lakes, Esmond Park, Ramshorn Peak, Indian Point,
Castle Rock, Burnt Mountain, Sheridan Pass, Warm Spring Mountain,
Dubois, Fish Lake, Ouzel Falls, Mosquito Lake, Fish Creek Park, Union
Peak, Simpson Lake, Tosi Peak, Klondike Hill, Big Sheep Mountain, Downs
Mountain, Green River Lakes, Windy Mountain, Pelican Cone, Little
Saddle Mountain, Pollux Peak, Stinkingwater Peak, Geers Point, Mount

[[Page 10894]]

Chittenden, Cathedral Peak, Pahaska Tepee, Sunlight Peak, Sylvan Lake,
Plenty Coups Peak, Eagle Creek, Trail Lake, Eagle Peak, Pinnacle
Mountain, Badger Creek, Open Creek, The Trident, Two Ocean Pass,
Yellowstone Point, Thorofare Plateau, McLeod Basin, Squaw Peak,
Sliderock Mountain, Wildcat Draw, Chrome Mountain, Picket Pin Mountain,
Meyer Mountain, Nye, Beehive, Mount Douglas, Tumble Mountain, Cathedral
Point, Mount Wood, Emerald Lake, Mackay Ranch, Roscoe, Haystack Peak,
Granite Peak, Alpine, Sylvan Peak, Bare Mountain, Pinnacle Mountain,
Little Park Mountain, Roundhead Butte, Cutoff Mountain, Cooke City,
Fossil Lake, Castle Mountain, Silver Run Peak, Black Pyramid Mountain,
Jim Smith Peak, Muddy Creek, Mount Hornaday, Abiathar Peak, Pilot Peak,
Beartooth Butte, Deep Lake, Opal Creek, Wahb Springs, Canoe Lake,
Hurricane Mesa, Hunter Peak, Dillworth Bench, Dodge Butte, Kendall
Mountain, Gannett Peak, Pass Peak, Squaretop Mountain, Fremont Peak
North, Bridger Lakes, Fremont Peak South, New Fork Lakes, Fremont Lake
North, Cora, Fremont Lake South, Fayette Lake.
(ii) Map of Greater Yellowstone Area unit follows:

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[GRAPHIC] [TIFF OMITTED] TP28FE08.005

[[Page 10896]]

* * * * *

Dated: February 13, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 08-779 Filed 2-27-08; 8:45 am]

BILLING CODE 4310-55-C