[Federal Register Volume 60, Number 108 (Tuesday, June 6, 1995)]
[Rules and Regulations]
[Pages 29914-29951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13606]




[[Page 29913]]

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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; Determination of 
Critical Habitat for the Mexican Spotted Owl; Final Rule

  Federal Register / Vol. 60, No. 108 / Tuesday, June 6, 1995 / Rules 
and Regulations    
[[Page 29914]] 

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD02


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) designates 
critical habitat for the Mexican spotted owl (Strix occidentalis 
lucida), a subspecies federally listed as threatened under the 
Endangered Species Act of 1973, as amended (Act). The Mexican spotted 
owl, also referred to herein as spotted owl or owl, inhabits canyon and 
montane forest habitats across a range that extends from southern Utah 
and Colorado, through Arizona, New Mexico, and west Texas, to the 
mountains of central Mexico. The designation includes 107 units 
totaling 1,874,935 ha (4,632,901 acres) in Arizona, Colorado, New 
Mexico, and Utah.
    This critical habitat designation provides additional protection 
requirements under section 7 of the Act with regard to activities that 
are funded, authorized, or carried out by any Federal agency. As 
required by section 4 of the Act, the Service considered economic and 
other impacts of designation prior to making a final decision on the 
size and scope of critical habitat. Critical habitat is located 
primarily on Federal and Tribal land and, to a lesser extent, on state 
and private lands.

EFFECTIVE DATE: This rule becomes effective July 6, 1995.

ADDRESSES: The complete administrative record for this rule is on file 
at the U.S. Fish and Wildlife Service, New Mexico Ecological Services 
State Office, 2105 Osuna N.E., Albuquerque, New Mexico 87113; 
telephone: (505) 761-4525. The complete file for this rule will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jennifer Fowler-Propst, State 
Supervisor, at the above address.

SUPPLEMENTARY INFORMATION:

Background

    The Mexican spotted owl is a medium-sized bird ranging from parts 
of central Colorado and Utah, south through Arizona, New Mexico, and 
western Texas, then south through Mexico to the States of Michoacan and 
Puebla. Mexican spotted owl habitat typically consists of dense, multi-
storied, montane forests with closed canopies, and deep, cool, 
fractured canyons. Analysis by the Mexican Spotted Owl Recovery Team 
has determined that the owl is threatened primarily by modification of 
habitat caused by commercial timber harvest methods and wildfires.

Previous Federal Actions

    The entire spotted owl species (Strix occidentalis) was classified 
on the Service's 1989 Animal Notice of Review (54 FR 554, January 6, 
1989) as a category 2 species. A category 2 species is one for which 
listing may be appropriate, but for which additional biological 
information is needed to support a proposed rule. The northern spotted 
owl subspecies (S. o. caurina) was listed as a threatened species on 
June 26, 1990 (55 FR 26194), and critical habitat was designated for it 
on January 15, 1992 (57 FR 1796). The California spotted owl subspecies 
(S. o. occidentalis) remains a category 2 candidate.
    On December 22, 1989, the Service received a petition submitted by 
Dr. Robin D. Silver requesting the listing of the Mexican spotted owl 
as an endangered or threatened species under the Act. On February 27, 
1990, the Service found that the petition presented substantial 
information indicating that listing may be warranted and initiated a 
status review. In conducting its review, the Service published a notice 
in the Federal Register (55 FR 11413) on March 28, 1990, requesting 
public comments and biological data on the status of the Mexican 
spotted owl. On December 6, 1990, the Mexican Spotted Owl Status Review 
Team completed a draft report, and on February 20, 1991, the Service 
made a finding, based on the contents of the report, that listing the 
Mexican spotted owl pursuant to section 4(b)(3)(B)(i) of the Act was 
warranted. Notice of this finding was published in the Federal Register 
on April 11, 1991 (56 FR 14678). A proposed rule to list the Mexican 
spotted owl as threatened without critical habitat was published in the 
Federal Register on November 4, 1991 (56 FR 56344).
    In the November 4, 1991, proposed rule and associated 
notifications, all interested parties were requested to submit factual 
reports or information regarding whether the Mexican spotted owl should 
be listed. The comment period was reopened from May 11, 1992, to 
September 1, 1992 (57 FR 20073, May 11, 1992) to allow submission of 
additional comments. Appropriate Federal and state agencies, and Tribal 
and county governments, organizations, and other interested parties 
were directly contacted and requested to comment, and newspaper notices 
inviting public comment were published in Arizona, New Mexico, Utah, 
and Colorado. The Service held six public hearings, which were 
announced in the proposed rule. A notice of the hearing dates and 
locations was published in the Federal Register on January 2, 1992 (57 
FR 35), and in notices published in Arizona, New Mexico, Utah, and 
Colorado newspapers. Interested parties were directly contacted and 
notified of the hearings.
    After a review of all comments received in response to the proposed 
rule, the Service published a final rule to list the Mexican spotted 
owl as a threatened species on March 16, 1993 (58 FR 14248). Section 
4(a)(3) of the Act requires that, to the maximum extent prudent and 
determinable, the Secretary designate critical habitat at the time a 
species is determined to be endangered or threatened. The Service's 
regulations (50 CFR 424.12(a)(2)) state that critical habitat is not 
determinable if information sufficient to perform required analyses of 
the impacts of the designation is lacking or if the biological needs of 
the species are not sufficiently well known to permit identification of 
an area as critical habitat. At the time of listing, the Service found 
that, although considerable knowledge of Mexican spotted owl habitat 
needs had been gathered in recent years, habitat maps in sufficient 
detail to accurately delineate these areas were not available. 
Subsequent to listing, the Service began gathering the data necessary 
to develop a proposed rule. On March 17, 1993, letters requesting 
information on owl habitat and distribution were sent to 14 Federal 
agencies. On April 14, 1993, letters requesting information on owl 
habitat and distribution were sent to 37 Tribal agencies.
    On June 25, 1993, and again on August 16, 1993, the Service 
received petitions to remove the Mexican spotted owl from the List of 
Endangered and Threatened Wildlife. In subsequent petition findings 
published in the Federal Register (58 FR 49467, 59 FR 15361) the 
Service addressed the issues raised in the petitions and determined 
that the delisting petitioners did not present substantial information 
indicating that the delisting of the Mexican spotted owl was warranted. 
[[Page 29915]] The petitioners have challenged this decision in Federal 
District Court in New Mexico in Coalition of Arizona/New Mexico 
Counties for Stable Economic Growth v. United States Fish and Wildlife 
Service, et al., CIV 94-1058-MV.
    On February 14, 1994, a lawsuit was filed in Federal District Court 
in Arizona against the Department of the Interior for failure to 
designate critical habitat for the Mexican spotted owl (Dr. Robin 
Silver, et al. v. Bruce Babbitt, et al., CIV-94-0337-PHX-CAM). On 
October 6, 1994, the Court ordered the Service to * * * ``publish a 
proposed designation of critical habitat, including economic exclusion 
pursuant to 16 U.S.C. 1533(b)(2), no later than December 1, 1994, * * * 
(and) publish its final designation of critical habitat, following the 
procedure required by statute and Federal regulations for notice and 
comment,'' by submitting the final rule to the Federal Register no 
later than May 30, 1995. Pursuant to an extension granted by the court, 
the Service issued the proposal rule to designate critical habitat on 
December 7, 1994 (59 FR 63162).
    Prior to issuance of the proposed rule, the Service held a press 
briefing in Albuquerque, New Mexico, on November 30, 1994, announcing 
the proposal, and issued a press release to major regional newspapers. 
In addition, the proposed rule was sent to affected Federal, Tribal, 
state, county, and local agencies and governments, and notice of the 
availability of the rule were sent to all interested parties on the 
Service mailing list. Public legal notices of the proposal were also 
sent to 18 newspapers in Arizona, Colorado, New Mexico and Utah on 
December 5, 1994. The general and newspaper notices requested data and 
comments from the government and public on all aspects of the proposal, 
including data on the economic impacts of the designation. The notice 
also announced a 90-day comment period open until March 7, 1995.
    On December 19, 1994, the Service sent a request for information on 
the potential economic impacts of designating critical habitat to 13 
Federal, 12 Tribal, and 10 state agencies, and 4 Governors' and 42 
county government offices. A Draft Economic Analysis (DEA) was prepared 
based on the information received and notice of its availability was 
published in the Federal Register on March 8, 1995 (60 FR 12728, 60 FR 
12730). The publication also proposed several revisions to the original 
proposal, solicited additional information and comments, opened an 
additional 60-day comment period extending to May 8, 1995, and 
announced the schedule and location of public hearings. More than 700 
parties on the Service's mailing list also received an announcement of 
the above subjects. On February 23, 1995, the Service also sent for 
publication as legal notices in 36 regional newspapers an announcement 
of the availability of the DEA, solicitation for additional information 
and comments, the opening of the additional comment period, and the 
schedule and location of public hearings. Public hearings were held in 
Santa Fe and Socorro, New Mexico, on March 22 and 23, 1995, and Tucson 
and Flagstaff, Arizona, on March 29 and 30, 1995. Comments from the 
public on the critical habitat proposal and DEA were recorded and 
evaluated for input to the final designation. More than 800 letters 
addressing the proposal were received during the comment periods. The 
correspondence and comments have been evaluated in the decision whether 
to designate critical habitat. Numerous other Federal actions have 
occurred in relation to the Mexican spotted owl, including the 
Service's recovery planning effort, plus management actions by other 
Federal agencies. Those topics are discussed under ``Management 
Considerations'', below.
Habitat Characteristics

    The physical and biological habitat features essential to the 
conservation of the Mexican spotted owl, referred to as the primary 
constituent elements, include those that support nesting, roosting, and 
foraging. These elements were determined from studies of Mexican 
spotted owl behavior and habitat use throughout the range of the owl.
    The vegetative communities and structural attributes used by the 
owl vary across the range of the subspecies. The vegetative communities 
consist primarily of warm-temperate and cold-temperate forests, and, to 
a lesser extent, woodlands and riparian deciduous forests. The mixed-
conifer community appears to be most frequently used throughout most 
portions of its range (Skaggs and Raitt 1988; Ganey and Balda 1989, 
1994; Service 1995).
    Mixed-conifer forests contain several species of overstory trees. 
The most common are white fir (Abies concolor), Douglas fir 
(Pseudotsuga menziesii), and ponderosa pine (Pinus ponderosa). Less 
common species are southwestern white pine (P. strobiformis), limber 
pine (P. flexilis), aspen (Populus tremuloides), and corkbark fir 
(Abies lasiocarpa var. arizonica). The understory within mixed-conifer 
communities provides important roosting sites for Mexican spotted owls. 
The understory usually contains the same conifer species found in the 
overstory, with Gambel oak (Quercus gambelii), maples (Acer 
grandidentatum and A. glabrum), and New Mexico locust (Robinia 
neomexicana) also present. Montane riparian canyon bottoms used by owls 
in the mixed-conifer zone may contain box elder (Acer negundo), 
narrowleaf cottonwood (Populus angustifolia), maples (Acer spp.), and 
alders (Alnus spp.).
    In southeastern Arizona, owl habitat types include mixed-conifer 
and Madrean Evergreen Forest and Woodland (Ganey and Balda 1989a; 
Duncan and Taiz 1992). Below the mixed-conifer vegetative zone are 
found two series of Madrean Evergreen Woodland: the upper oak-pine 
occurs at 1,675 to 2,200 meters (5,500 to 7,200 feet), and the lower 
evergreen oak (encinal) occurs at 1,525 to 1,980 meters (5,000 to 6,500 
feet). Within these vegetative zones, and particularly at lower 
elevations, Mexican spotted owls are usually found in steep, forested 
canyons with rocky cliffs.
    At the northern edge of their range in northeastern Arizona, 
southwestern Colorado, and southern Utah, Mexican spotted owls occur 
during the breeding season between 1,340 to 2,160 meters (4,400 to 
7,100 feet) in canyon habitats within pinyon-juniper woodland (Pinus 
edulis and Juniperus osteosperma) or mixed-conifer forests. Canyon 
habitat is characterized by the cool, humid conditions found in the 
deep, steep-walled, fractured structures of sandstone slickrock. 
Canyons frequently contain riparian and conifer pockets, and adjacent 
slopes and mesa tops are vegetated by a variety of plant associations. 
Although no studies have been completed, preliminary studies show most 
Mexican spotted owl activity during the breeding season to occur within 
and in proximity to canyons. Owls roost in the riparian and coniferous 
pockets of canyon bottoms, on ledges, or in cavities in the slickrock 
canyon walls (Gutierrez and Rinkevich 1991; van Riper and Willey 1992).
    Structural characteristics associated with forested Mexican spotted 
owl habitat vary depending on the behavioral function it supports. 
Although Mexican spotted owl habitat is also regionally variable, some 
general attributes are common to the subspecies' life-history 
requirements throughout its range. Studies of nest and roost habitat 
use at both stand and site scales indicate that areas selectively used 
by owls contain attributes typically associated with older forest 
stands (Service 1995 and references therein). The attributes of 
[[Page 29916]] forested nesting and roosting habitat typically include 
a high basal area of large diameter trees; a moderate to high canopy 
closure; a pronounced large-tree component; a wide range of tree sizes 
suggestive of uneven-age stands; a multi-layered canopy with large 
overstory trees of various species; high plant species richness; high 
snag basal area; and high volumes of fallen trees and other woody 
debris. These attributes usually develop with increasing forest age, 
but their occurrence may vary by location, past forest management 
practices or disturbance events, forest type, and productivity. These 
characteristics may also develop in younger stands, especially when the 
stands contain remnant large trees or patches of large trees from 
earlier stands. Certain forest management practices may also enhance 
tree growth and mature stand characteristics where the older, larger 
trees are allowed to persist.
    Spotted owls apparently use a wider array of habitat types for 
foraging than for nesting and roosting, including fairly open and non-
contiguous forest, small openings, pure ponderosa pine stands, 
woodland, and rocky slopes. Ganey and Balda (1994) found a greater 
selectivity in forested habitat used for foraging than for random 
sample sites. As for roosting sites, foraging areas had larger logs, 
greater canopy cover, and higher densities and basal areas of both 
trees and snags than random sites. Owls also appeared to avoid foraging 
in stands in which the overstory had been partially harvested. However, 
the significance of this analysis may be low because of the limited 
sample size.
    Little is known about the habitat requirements for dispersal. 
Habitat that meets the subspecies' needs for nesting and roosting may 
also provide for foraging and dispersal. The definition of the term 
``dispersal'' is frequently limited to post-fledging movements of 
juveniles. For the purposes of this rule, the Service considers the 
term to include all movement, including winter shifts in territory and 
dispersal from natal areas, and to encompass the important biological 
concepts of connectivity within and between clusters of Mexican spotted 
owl territories. Although habitat that allows for dispersal may be 
marginal or unsuitable for nesting or roosting, it provides 
connectivity between blocks of nesting habitat both locally and over 
the Mexican spotted owl's range that is essential to demographic 
interaction and genetic flow. Thus, dispersal habitat includes 
unoccupied habitat of varying quality that may support intermittent use 
as a ``stepping stone'' between occupied areas.
    Mexican spotted owls occur in relatively isolated mountain ranges, 
often separated by wide expanses of Sonoran, Chihuahuan, and Great 
Basin desert and other nonforested lands. Preliminary studies of 
juvenile owl dispersal in southern Utah (Willey 1993) and New Mexico 
(Peter Stacey, University of Nevada, Reno, in litt., 1993) have shown 
movements across a wide variety of habitat types, including both 
riparian areas and vegetation types considered too open for consistent 
use by Mexican spotted owls.
    The results of a 3 year telemetry study of owls and habitat in 
southern Utah have shown seasonal shifts in habitat use (van Riper and 
Willey 1992, Willey 1993). During the breeding season, up to 25 percent 
of adult owl locations occurred outside of steep canyon terrain. During 
the fall and winter seasons, about half of the locations occurred on 
mesa-tops, benches, and warm slopes above the canyons. Movements out of 
the summer home ranges during the winter season were highly variable. A 
few owls moved completely out of their summer ranges, several shifted 
into adjacent areas with some overlap of seasonal ranges, and others 
remained within the same area year round.

Current Situation

    Federal, state, Tribal, and private lands contain habitat for the 
owl. The Forest Service, Bureau of Indian Affairs (BIA), National Park 
Service (NPS), Bureau of Land Management (BLM), and Department of 
Defense are the Federal land managing agencies for much of the lands 
harboring owl habitat and known owl sites. Efforts to estimate habitat 
acreage and survey efforts for owls have varied between agencies, with 
the most intensive work being done by the Forest Service.
    Currently, most land-managing agencies characterize Mexican spotted 
owl habitat under the term ``suitable.'' Suitable habitat is often only 
applied to habitat able to sustain the combined nesting, roosting, and 
foraging needs of the Mexican spotted owl's life history. The 
definition often excludes additional habitat utilized only for 
foraging, and may underestimate the total habitat available within an 
owl territory and across the subspecies' range.
    The Forest Service estimates that it manages about 1,853,000 ha 
(4,579,000 acres) of suitable owl habitat on 18 national forests in 
Arizona, New Mexico, Utah, and Colorado (Fletcher and Hollins 1994). 
Forest Service land in Arizona and New Mexico contains 1,161,000 ha 
(2,869,000 acres) of this total, with an additional 432,400 ha 
(1,068,500 acres) described as being ``capable'' of returning to 
suitable habitat condition. Colorado national forests are estimated to 
have about 355,300 ha (878,000 acres) and Utah national forests are 
estimated to have about 336,700 ha (832,000 acres) of forested suitable 
habitat. However, under a narrower set of definitions, a second recent 
estimate places suitable canyon habitat in Utah national forests at 
about 58,000 ha (143,000 acres) (Kate Grandison, Dixie National Forest, 
in litt., 1994). No capable acreage figure is available for Utah and 
Colorado. Addition of the capable habitat figure yields a total owl 
habitat acreage of 1,593,500 ha (3,937,500 acres) for Forest Service 
lands in Arizona and New Mexico.
    Forest Service inventories through 1994 resulted in the 
establishment of 841 management territories (MTs) in Arizona and New 
Mexico (Fletcher and Hollis 1994). Four MTs have been established from 
the six sites with owl detection records in Utah (K. Grandison, pers. 
comm., 1994). No MTs have been established from the six owl sites in 
Colorado (John Verner, Pike/San Isabel National Forests, pers. comm., 
1994). Each MT represents the occurrence of either a single owl or pair 
of owls, and was either established from confirmed nest or roost 
locations, or from nighttime calling responses.
     There are potentially up to 435,000 ha (1,075,000 acres) of 
Mexican spotted owl habitat on Indian reservations. The actual amount 
of habitat may be lower because estimates may be developed from forest 
cover timber-type maps containing little information about understory 
conditions or slope. On the other hand, the estimates may also omit 
minimally or non-forested canyon habitat acreage. Complete information 
is not available on owl survey efforts or results from several Tribes. 
As of the end of 1992, seven owl sites (three pairs and four singles) 
have been located on the Fort Apache Indian Reservation (White Mountain 
Apache Tribe, in litt., 1993). No recent estimates were made available 
by the Tribe. Owl surveys on the Navajo Reservation have resulted in 
the confirmation of owls at 26 sites (13 pairs and 13 singles) (John 
Nysted, Navajo Fish and Wildlife Department, pers. comm., 1994). The 
Jicarilla and the Hualapai wildlife departments have conducted owl 
surveys; however, no owls have been detected. Current owl records 
exist, but only limited information is available on population 
estimates for the San Carlos Apache and Mescalero Apache Indian 
Reservations. [[Page 29917]] Only limited information specific to the 
Southern Ute Indian Reservation is available; however, presently the 
are no known owls, although occupied habitat on adjacent lands indicate 
owls may occur on Reservation land.
    A total of 297,000 ha (734,000 acres) of potential owl habitat 
occurs on BLM lands in Colorado, Utah, Arizona, and New Mexico (BLM, 
Colorado State Office, in litt. 1990; BLM, Utah State Office, in litt. 
1990; BLM, New Mexico State Office, in litt. 1990; Ted Cordery, Arizona 
BLM, pers. comm., 1992). In 1993, a total of 25 owl locations were 
known from BLM lands. There were 15 locations in Utah, 7 locations in 
Colorado, and 1 location in New Mexico. There are several historical 
records and two current records for sites on BLM lands in Arizona.
    Most Mexican spotted owl habitat on national parks and monuments 
consists of minimally forested, steep, shaded canyons in the northern 
part of the owl's range. It is difficult to estimate acreage for this 
type of habitat. The NPS estimated that 23 parks and monuments in the 
southwest contained between 96,000 and 177,000 ha (238,000 to 438,000 
acres) of Mexican spotted owl habitat (NPS, Southwest Region, in litt. 
1990; NPS, Rocky Mountain Region, in litt. 1990; J. Ray, NPS, Grand 
Canyon National Park, pers. comm., 1990). As of 1995, the NPS had 
records for a total of 37 sites in Utah, Colorado, and New Mexico (NPS, 
unpublished data). No recent records were available for NPS land in 
Arizona.
    Between 72,000 and 82,000 ha (177,000 to 202,000 acres) of New 
Mexico and Arizona State lands contain forests and canyons that could 
be suitable Mexican spotted owl habitat. Several historical and recent 
records exist for New Mexico State lands. In Arizona, surveys conducted 
by the Arizona State Land Department and the Coconino National Forest 
resulted in the establishment of three MTs. No information was 
available on suitable Mexican spotted owl habitat on State lands in 
Utah and Colorado. However, a single owl was recorded on Utah State 
lands in 1992.
    Private lands in Arizona and New Mexico are currently estimated to 
contain up to 53,000 ha (130,000 acres) of owl habitat (Service 1994). 
No estimates exist for owl habitat acreage on private lands in Colorado 
and Utah. This is partly due to the difficulty in assessing the extent 
of existing canyon habitat in the Colorado Plateau physiographic 
province, and partly a result of the insufficient amount of owl surveys 
currently accomplished to accurately determine the limit of the 
subspecies' range.
    The estimates, as reported by individual land managing agencies, of 
Mexican spotted owl suitable habitat within the United States total 
about 2,959,400 ha (7,312,500 acres). These estimates of habitat 
available for nesting and roosting activity are derived from median 
figures where estimates were given as an acreage range, include capable 
habitat estimates where available, and include the lower estimate for 
suitable habitat on Forest Service land in Utah. The approximate 
proportion of habitat for the Forest Service is 68 percent; Tribal, 15 
percent; BLM, 10 percent; NPS, 5 percent; the States of Arizona and New 
Mexico, 1 percent; and private lands, 2 percent.
    The proportion of total habitat for each landowner is probably 
fairly accurate. However, the total acreage of owl habitat is likely 
overestimated. The error is a result of inadequate information on land 
status and disagreement about the types of vegetative communities that 
provide owl habitat. For instance, the Forest Service included many 
acres of the ponderosa pine community type in its estimate of suitable 
and capable habitat. Several agencies expressed uncertainty about the 
accuracy of their habitat estimates.
    Ninety-one percent of Mexican spotted owls known at the end of 1990 
occurred on national forests, 4 percent on Indian reservations, 4 
percent on national parks, and 1 percent on BLM lands. Because the 
Service has received incomplete 1991 to 1994 survey data, it is not 
possible to identify exact percentages since 1990.

Definition of Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as: ``(i) 
the specific areas within the geographic area occupied by a species * * 
* on which are found those physical and biological features (I) 
essential to the conservation of the species, and (II) that may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by a species at the time 
it is listed, upon determination that such areas are essential for the 
conservation of the species.'' The term ``conservation,'' as defined in 
section 3(3) of the Act, means ``* * * to use and the use of all 
methods and procedures which are necessary to bring an endangered 
species or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary,'' i.e., the 
species is recovered and removed from the list of endangered and 
threatened species.
    The Service is required to base critical habitat designations upon 
the best scientific and commercial data available (50 CFR 424.12) after 
taking into account economic impacts and other relevant data. In 
designating critical habitat for the Mexican spotted owl, the Service 
has reviewed the overall approach to the conservation of the Mexican 
spotted owl undertaken by land management agencies since its proposed 
listing in 1991. The Service has also reviewed available information 
that pertains to the habitat requirements of this subspecies, including 
material received during the public comment periods from state and 
Federal agencies, and other entities. Finally, the Service considered 
the economic and other relevant impacts of designation prior to making 
this final determination.

Role in Species Conservation

    The use of the term ``conservation'' in the definition of critical 
habitat indicates that its designation should identify lands needed for 
a species' eventual recovery and delisting. However, when critical 
habitat is proposed or designated at the time a species is listed, the 
Service frequently does not know precisely what may be needed for 
recovery. In this regard, critical habitat serves to preserve options 
for a species' eventual recovery.
    The designation of critical habitat will not, in itself, lead to 
recovery, but, through regulations under section 7 of the Act, may 
assist the Service and all Federal agencies in preventing the further 
deterioration of habitat and, in this way, contributing toward a 
species' conservation. Critical habitat helps focus conservation 
activities by identifying areas that contain essential habitat features 
(primary constituent elements), regardless of whether they are 
currently occupied by the listed species, thus alerting the public and 
land managing agencies to the importance of an area in the conservation 
of a listed species. Critical habitat also identifies areas that may 
require special management or protection. Critical habitat receives 
protection from destruction or adverse modification through required 
consultation under section 7 of the Act with regard to actions carried 
out, funded, or authorized by a Federal agency. Aside from the added 
protection provided under section 7, the Act does not provide other 
forms of protection to lands designated as critical habitat. The added 
protection of these areas may shorten the time needed to achieve 
recovery.

[[Page 29918]]

    Designating critical habitat does not create a management plan for 
a listed species. Designation does not establish numerical population 
goals, prescribe specific management actions (inside or outside of 
critical habitat), nor does it have a direct effect on areas not 
designated as critical habitat. Recovery planning and critical habitat 
designation are different processes. Specific management 
recommendations for critical habitat are most appropriately addressed 
in recovery plans, management plans, and through section 7 
consultation.
    Critical habitat identifies specific areas essential to the 
conservation of a species. Areas not currently containing all of the 
essential features, but with the capability to do so in the future, may 
also be essential for the long-term recovery of the species, 
particularly in certain portions of its range, and may be designated as 
critical habitat. However, not all areas containing the features of a 
listed species' habitat are necessarily essential to the species' 
survival. Areas not included in critical habitat that contain one or 
more of the primary constituent elements are still important to a 
species' conservation and may be addressed under other facets of the 
Act, and other conservation laws and regulations.

Primary Constituent Elements

    In identifying areas as critical habitat, the Service considers 
those physical and biological attributes that are essential to a 
species' conservation. In addition, the Act stipulates that the areas 
containing these elements may require special management considerations 
or protection. Such physical and biological features, as outlined in 50 
CFR 424.12, include, but are not limited to, the following:

--Space for individual and population growth, and for normal behavior;
--Food, water, or other nutritional or physiological requirements;
--Cover or shelter;
--Sites for breeding, reproduction, or rearing of offspring; and
--Habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.

    The primary constituent elements of critical habitat for the 
Mexican spotted owl include, but are not limited to, those habitat 
components providing or with the potential to provide for nesting, 
roosting, or foraging activities. Forested habitats used for nesting 
and roosting are typically characterized as supporting mature stand 
attributes including high canopy closure, multi-canopied structure, 
coniferous vegetation (sometimes including a hardwood understory), 
large diameter trees, high basal areas of live trees and snags, and 
high log volumes. Nesting and roosting habitat also supports owl 
foraging activity; however, a wider array of habitat attributes may be 
found in areas used solely for foraging, including fairly open and non-
contiguous forest, small openings, woodland, and rocky slopes. Canyon 
habitat is typically characterized by the cool, humid conditions found 
in deep, steep-walled, fractured structures. Canyons frequently contain 
riparian and conifer pockets, and adjacent slopes and mesa tops are 
vegetated by a variety of plant associations. Owl habitat may also 
exhibit a combination of attributes between the forested and canyon 
habitat types. Habitat that meets the subspecies' needs for nesting, 
roosting, and foraging also provides for dispersal. However, habitat 
that provides for dispersal may not support the other primary 
constituent elements. Currently, little is known about the habitat 
requirements for foraging or dispersal.
    Areas of designated critical habitat include both ``suitable'' and 
``unsuitable'' forest and canyon habitat. Several definitions of 
``suitable'' are currently used by different land managing agencies; 
however, the term ``suitable'' generally refers to habitat that 
supports the combined activities of nesting, roosting, and foraging. 
This critical habitat designation is not limited to habitat that meets 
``suitable'' definitions, but includes habitat with any of the primary 
constituent elements described above.

Criteria for Identifying Candidate Critical Habitat Units

    The primary objective in designating critical habitat is to 
identify existing and potential Mexican spotted owl habitat considered 
essential for the conservation of the subspecies, and to highlight 
specific areas where management considerations should be given highest 
priority. The Service focused on available nesting and roosting habitat 
to identify locales that provide a nucleus for delineation of critical 
habitat units. Additional habitat was added as needed to develop units 
based on the criteria described below. In the designation of critical 
habitat, the Service has considered all habitat types needed by the 
subspecies through its definition of the primary constituent elements.
    The Service used owl habitat and territory maps, vegetation maps, 
aerial photography, and field verification to identify areas for 
designation as critical habitat. Because habitat maps available to the 
Service were generally based on the varying definitions of ``suitable 
habitat'' used by the agencies, the major focus was on habitat that 
provides nesting, roosting, and some foraging attributes. To assist in 
these determinations, the Service relied upon the following principles 
developed by the Interagency Scientific Committee (Thomas et al. 1990) 
for the northern spotted owl, and by others working in the field of 
conservation biology:

--Develop and maintain large contiguous blocks of habitat to support 
multiple reproducing pairs of owls;
--Minimize fragmentation and edge effect to improve habitat quality;
--Minimize distance between blocks to facilitate dispersal among blocks 
of breeding habitat; and
--Maintain range-wide distribution of habitat to facilitate recovery.

    Several qualitative criteria were considered when determining 
identification of critical habitat. The following discussion describes 
the criteria and provides an explanation of their use in selecting and 
designating specific areas.
    (1) Currently Suitable Habitat: The Service concentrated on the 
existence of currently suitable Mexican spotted owl forested and canyon 
habitat (primarily nesting and roosting, but also foraging) that 
contained one or more of the primary constituent elements. The Service 
evaluated the quality of existing habitat based on available habitat 
maps and delineated the best available habitat (i.e., the least 
fragmented, most contiguous forest habitat areas; areas showing 
characteristic topographic features of canyon habitat) in the critical 
habitat units.
    (2) Large Contiguous Blocks of Habitat: The Service identified, 
where available, large, contiguous blocks of habitat or areas that 
mostly consist of Mexican spotted owl habitat. In forested habitat, 
areas were selected so that critical habitat units would include as 
little low quality habitat as possible. In canyon habitat, drainage 
systems and adjacent terrain determined the branching shape of critical 
habitat units.
    (3) Occupied Habitat: In evaluating potential critical habitat 
units, the Service gave primary consideration to habitat currently 
occupied by pairs or resident singles; however, some unoccupied areas 
were selected if they were important for other reasons (e.g., territory 
cluster contiguity). Some habitat within units was selected based on 
suitability although no surveys were yet conducted. All areas selected, 
[[Page 29919]] however, have potential for supporting the territorial 
needs of Mexican spotted owls.
    (4) Rangewide Distribution: The Service is designating critical 
habitat units well distributed within the existing United States range 
of the Mexican spotted owl to maintain demographic connectivity and 
genetic variation between territory clusters.
    (5) Special Management or Protection: The Service evaluated the 
need for special management because of the existing situation (e.g., 
current quality of existing habitat), low population density, the 
relative importance of territory clusters, or management activities and 
threats. All areas were selected because of their need for special 
management or protection.
    (6) Adequacy of Existing Regulatory Mechanisms: The Service 
considered the existing legal status of areas (i.e., reserved areas 
such as wilderness or parks) and, with few exceptions, has not 
designated reserved areas as critical habitat. In general, the current 
classification of wilderness areas and parks provides adequate 
protection against potential habitat-altering activities because they 
are primarily managed as natural ecosystems. These lands are often 
essential to the conservation of the subspecies, as they provide 
important links and contain large areas of habitat in relatively 
pristine condition. However, these lands by themselves do not provide 
adequate habitat to support a viable range-wide Mexican spotted owl 
population. The Service considered their relative contribution to the 
Mexican spotted owl's conservation but did not include them in critical 
habitat because of the protection afforded by their current 
classification unless there was a threat of significant impacts to 
habitat in these areas or they were inclusions within larger 
surrounding critical habitat units.

Critical Habitat Designation

    The designation includes 107 critical habitat units totaling 
1,874,935 ha (4,632,901 acres) in Arizona, New Mexico, Utah and 
Colorado. The approximate acreage of critical habitat by land ownership 
is shown in Table 1.

                         Table 1.--Critical Habitat Acreage by Land Ownership and State                         
----------------------------------------------------------------------------------------------------------------
                                                  Arizona    New Mexico     Colorado       Utah         Total   
----------------------------------------------------------------------------------------------------------------
Forest Service................................   1,510,148   a 1,848,351       34,500      188,386   a 3,581,385
Bureau of Land Management.....................           0        10,743          562           72        11,377
National Park Service.........................      45,892             0            0            0        45,892
Department of Defense.........................       2,013             0            0            0         2,013
State.........................................       3,333         5,847          620           20         9,820
Tribal........................................     401,829     b 407,604       61,531            0     b 870,964
Private.......................................      28,396      b 75,621        6,890          543     a 111,450
                                               -----------------------------------------------------------------
    Total.....................................   1,991,611           a b                                        
                                                               2,348,166      104,103      189,021           a b
                                                                                                       4,632,901
                                               =================================================================
    Total critical habitat units..............          38            62            7            1         c 107
----------------------------------------------------------------------------------------------------------------
a Includes a correction to acreages cited in the proposed rule.                                                 
b Includes changes to ownership and deletion of Jicarilla Apache acreages cited in the proposed rule.           
c One critical habitat unit overlaps two States.                                                                

Management Considerations

Forest Practices

    Management direction for lands with Mexican spotted owl habitat 
varies within and between agencies. A multiple-use management emphasis 
is in effect on much of Forest Service and Tribally managed land. Much 
BLM Mexican spotted owl habitat is managed primarily for natural 
resources extraction, including oil, gas, minerals, and timber, but is 
still available for wildlife and recreation. National Park Service 
lands are managed for recreation and preservation of natural values. 
State lands within owl habitat are typically intermingled with Federal 
lands and are usually not large enough to support owl territories of 
their own. State lands are managed to generate maximum financial return 
to the State trusts. Management emphasis on private lands providing 
Mexican spotted owl habitat varies.
    Current Forest Service management plans call for harvestable timber 
land in Arizona and New Mexico to be primarily managed under even-aged 
shelterwood systems. Commercial forests on the Navajo Indian 
Reservation are being converted to shelterwood management (James 
Carter, BIA, pers. comm., 1990). Other commercial forests on Indian 
lands in the Southwest are managed primarily as uneven-aged stands by 
selective logging. Under the shelterwood system, a stand is scheduled 
for a series of harvests culminating in a full rotation cycle in 120 
years or less. This cycle maximizes timber production, but does not 
provide enough time for stands to reach the mature to old-growth 
conditions characteristic of most forested Mexican spotted owl habitat, 
and results in forest age distributions unnaturally skewed toward 
younger stands. The past and threatened conversion of complex 
structured forest stands to even-aged stands was identified by the 
Service (Service 1991, 1993, 1995) as the greatest threat facing the 
Mexican spotted owl.
    Half of all shelterwood management on national forests has been 
occurring in forest habitat suitable for nesting and foraging. The 
Service has determined habitat loss trends from current national forest 
plans, which provide the only available data on timber harvest trends 
into the future. An estimated 0.4 percent of Mexican spotted owl 
habitat is projected to be made unsuitable for breeding each year in 
the future if timber extraction continues as outlined under current 
forest plans.
    Region 3 of the Forest Service is currently in the process of 
amending forest plans to incorporate the recommendations contained in 
the Service's draft Mexican Spotted Owl Recovery Plan (Service 1995), 
and to change the dominant silvicultural system in the southwest from 
even- to uneven-age management. Uneven-aged management maintains and 
promotes development of complex forest structures. Methods include 
individual tree selection and group selection. Individual tree 
selection entails the harvest of trees selected from a size-
distribution curve appropriate for forest type, site conditions, and 
desired regeneration levels. Trees of various size and age classes are 
retained, and multi-storied attributes and vertical diversity are 
maintained. Group selection creates [[Page 29920]] openings in the 
forest stand from a fraction to a hectare (\1/4\ to 2.5 acres) in size, 
developing small even-aged clumps of trees and within-stand horizontal 
diversity. The Service considers the use of uneven-age management the 
silvicultural method most compatible with maintenance of Mexican 
spotted owl habitat.

Previous Management Attempts

    Prior to listing, the Migratory Bird Treaty Act (MBTA) provided the 
only Federal statutory protection for the Mexican spotted owl. Under 
the provisions of the MBTA, it is unlawful to pursue, hunt, take, 
capture, or kill in any manner any migratory bird unless permitted by 
regulations. Although the Mexican spotted owl typically remains in its 
summer range throughout the year, it is included on the list of birds 
protected under the MBTA.
    An interagency agreement with the purpose of ensuring population 
viability of the spotted owl (Strix occidentalis), including the 
Mexican spotted owl, was signed by the Service, BLM, NPS, and Forest 
Service on August 12, 1988 (U.S. Department of Interior 1988). Under 
this agreement, each agency agreed to manage its lands to provide owl 
habitat, to carry out habitat and population inventories sufficient to 
indicate long term trends, and to carry out research activities 
sufficient to provide empirical information on the validity of planning 
assumptions. The degree to which this agreement has been implemented 
has varied within and among agencies.
    The States of Arizona, Utah and Colorado list the Mexican spotted 
owl as a threatened species. Capture, handling, transportation, and 
take of the Mexican spotted owl are regulated by game laws and special 
licenses for live wildlife. Thus, the States only regulate hunting, 
recreation, and scientific investigation. Habitat management is not 
considered.
    Most Federal agencies have policies to protect State threatened or 
endangered species, and some agencies also protect species that are 
candidates for Federal listing. The NPS Organic Act protects all 
wildlife on national parks and monuments. However, these general 
policies lack standards and guidelines that can be used to measure 
policy success. The Service believes that until agencies develop 
specific protection guidelines, evaluate them for adequacy, and test 
them through implementation, it is uncertain whether any general agency 
policies will adequately protect the Mexican spotted owl.
    Specific management policies for the Mexican spotted owl have been 
developed by BLM in Colorado and New Mexico. The policy in Colorado 
states, ``In areas with a confirmed nest or roost site, surface 
management activities will be limited and will be determined on a case 
by case basis to allow as much flexibility as possible outside of the 
core area.'' Management policy in New Mexico states that habitat core 
areas and territories of appropriate size will be established and 
preserved wherever owls are found. The Service believes these policies 
are likely to be too general to ensure the Mexican spotted owl will be 
adequately protected on BLM lands.
    Mexican spotted owl protection guidelines have been developed by 
the White Mountain Apache, Mescalero Apache, and Jicarilla Apache 
Tribes. The White Mountain Apache Mexican Spotted Owl Management Plan 
was discussed in some detail in the proposed rule for critical habitat 
designation. Details of the Mescalero Apache conservation plan are 
considered proprietary by the Tribe and are not available for release 
by the Service. The Jicarilla Apache conservation plan addresses the 
identified threats to owl habitat by maintaining sufficient suitable 
habitat across the landscape and the site-specific retention of complex 
forest structure following timber harvest. Nest/roost habitat, 
primarily mixed conifer and steep slope areas, are not managed for 
timber extraction and are to remain in suitable nest-roost condition. 
Foraging habitat consisting of ponderosa pine is to be managed almost 
entirely by uneven-aged methods. Timber harvest may lower the quality 
of a fraction of the foraging habitat base, but adequate residual 
structure remains such that the habitat rapidly reattains suitable 
condition. At any point in time the majority of foraging habitat 
remains in suitable foraging condition across the landscape. Site-
specific management of territories address both habitat conditions and 
behavioral disturbance within owl territories. Territorial management 
includes the establishment of 300-acre protected activity centers 
around nest-roost sites. No timber, and oil and gas development is to 
occur within these areas, and no behaviorally disturbing activities are 
permitted within \1/4\ mile of any nest or roost site during the 
breeding season. Habitat in the areas surrounding the protected 
activity centers are to be managed as described above.
    Detailed guidelines for Mexican spotted owl management have been 
developed by the Forest Service Southwest Region. The guidelines were 
first issued as Mexican spotted owl Interim Directive (ID) No. 1 in 
June 1989, and reissued as Mexican spotted owl ID No. 2 in June 1990. 
Utah and Colorado national forests adopted ID No. 2 in 1991. The 
guidelines expired December 26, 1991, but the Forest Service is 
continuing to manage under ID No. 2. The IDs require establishment of a 
Mexican spotted owl MT around each nest or roost site. Each MT has a 
core area of 182 ha (450 acres) and an overall size of 810 ha (2,000 
acres). Activities within the core area are limited to road 
construction. Within the MT, activities, including timber harvest, are 
limited to a maximum of 314 ha (775 acres). The intent of the 
guidelines is to retain at least 405 ha (1,000 acres) of suitable 
habitat within the MT after proposed management activities are 
identified and located. Forest Service estimates indicate that suitable 
habitat within MTs currently averages 466 ha (1,150 acres) for 
territories in New Mexico and Arizona. In Utah, MTs encompass 1,340 ha 
(3,350 acres) with a core of 350 ha (875 acres) (K. Grandison, pers. 
comm., 1994). The IDs provide no protection for unoccupied suitable 
Mexican spotted owl habitat, nor do they address forest activities not 
related to timber harvest.
    In March of 1995, the Service released for public review the draft 
Mexican Spotted Owl Recovery Plan (Service 1995). That plan, when 
finalized, will become the Service's policy on recommendations for 
managing Mexican spotted owls in the southwest. As previously 
mentioned, the Forest Service has shown interest in adopting the 
recommendations in the recovery plan by amending forest plans for 
National Forests in Arizona and New Mexico. It is the Service's hope 
that other involved Federal agencies, including other regions of the 
Forest Service, will adopt the Service's final recovery recommendations 
as spotted owl management policy.

Summary of Economic Impacts

    The Act requires that critical habitat be designated after 
consideration of the economic impact, and any other relevant impact, of 
specifying any specific area as critical habitat. An area may be 
excluded from designation if the benefits of its exclusion outweigh the 
benefits of its inclusion in critical habitat, unless failure to 
designate the area would result in extinction of the species concerned. 
The Service has analyzed the probable impacts of designating critical 
habitat for the Mexican spotted owl. Availability of a draft economic 
analysis was announced in the Federal Register on March 8, 1995 (60 FR 
12730), simultaneous with publication of a supplementary 
[[Page 29921]] proposed rule that proposed to exclude certain areas 
from critical habitat on economic grounds (60 FR 12728). Pursuant to an 
order of the United States District Court for the District of Arizona 
issued December 30, 1994, the Service was required to publish any 
proposed exclusions from the critical habitat for the Mexican spotted 
owl in the Federal Register and provide a 60-day comment period on 
them. Consequently, the only areas potentially subject to economic 
exclusion from this final designation are those treated in the 
supplementary proposal.
    A final economic analysis has now been completed and will soon be 
made available to the public. Its principal findings are summarized 
below.
    The study estimates the incremental economic effects of designating 
critical habitat for the owl. It does not estimate the economic 
benefits and costs related to other conservation measures in place as a 
result of listing the owl, or the economic effects of actions taken by 
other Federal or state agencies. The study assesses impacts on 
activities that occur on Federal land or are authorized, funded, or 
carried out by agencies of the Federal government. Activities that 
occur on private lands and that do not involve Federal authorization, 
funding, or assistance are not affected by critical habitat 
designation.

Analytical Methodology

    The economic region described in the study includes 28 counties in 
four states that contain land proposed for designation as critical 
habitat for the owl. The subregions are groups of counties that allow 
evaluation of economic impacts in a smaller area. The Northeast 
subregion contains 2 counties in Colorado (Archuleta and La Plata) and 
9 in New Mexico (Colfax, Los Alamos, Mora, Rio Arriba, Sandoval, San 
Miguel, Santa Fe, Taos, Torrance). The Southeast subregion comprises 
two counties in southern New Mexico (Lincoln and Otero). The West 
subregion is the largest and most populated, and includes 7 counties in 
Arizona (Apache, Coconino, Gila, Graham, Greenlee, Navajo, and 
Yavapai), 7 counties in New Mexico (Catron, Cibola, Grant, McKinley, 
San Juan, Sierra, and Socorro), and 1 in Utah (San Juan).
    The economic subregions are defined by county boundaries, which are 
the smallest economic divisions available for analysis with the 
database used in the study. The subregions approximate as nearly as 
possible the counties in which critical habitat has been proposed. The 
profile of the economy of the region describes economic activity in 
1991, prior to Federal listing of the owl and the proposal to designate 
critical habitat. The economic descriptions and the modeling of 
economic impacts were conducted primarily with Micro IMPLAN (Taylor et 
al. 1993) and the Micro IMPLAN database.
    The economic analysis is restricted to effects anticipated in the 
foreseeable future within proposed CHUs. The effects of the proposed 
action on Federal agencies and other entities were estimated using data 
requested by the Service from Federal, state, county, and Tribal 
entities known to be involved in land management or ownership within 
the counties containing proposed critical habitat. The agencies were 
asked to estimate current and planned timber harvest that involved 
modification or destruction of owl habitat and that would be affected 
by the proposed action.
    The economic effects of designation include those that result in 
changes in social welfare. Regional (distributional) economic impacts 
may include household income foregone from employees permanently 
displaced through critical habitat designation; changes in specific 
county tax revenues due to changes in land use; regional social costs 
and benefits from factors such as transient unemployment, job training, 
or redistribution of existing job-mix categories. The analysis of 
effects of critical habitat designation considers both national 
economic efficiency effects and regional (distributional) impacts when 
possible. These include effects on the changes in total employment, 
changes in household income, and the effects on local communities.

Regional Demographic Profile

Land Ownership

    More than three-fourths of the acres proposed for critical habitat 
designation are federally owned, primarily under jurisdiction of the 
Forest Service. Much of the remaining land is within the boundaries of 
Tribal Reservations (20 per cent).
    Critical habitat designation for the owl was proposed on 922,600 
acres of Native American Tribal lands including land owned by five 
Tribes: Jicarilla Apache, Mescalero Apache, Navajo, San Carlos Apache, 
and Southern Ute. Tribal lands are included in CHUs in all three 
subregions, and represent 17 percent of the total proposed designated 
critical habitat in the Northeast and West subregions, and 38 percent 
of the Southeast subregion.

Human Population

    The 1990 census reported the region's residents numbered 1,054,800, 
20 percent higher than a decade earlier and double the population of 
1960. The 1990 census reported 19 counties in the region that each had 
fewer than 50,000 residents; population exceeded 100,000 in one of the 
28 counties in the region.
    The region includes six incorporated communities with populations 
that exceeded 25,000 in 1990, including Flagstaff and Prescott, 
Arizona; and Alamogordo, Farmington, Rio Rancho, and Santa Fe, New 
Mexico. Santa Fe was the largest community in the region, reporting a 
1990 census of 55,900 residents. The Arizona counties containing 
Phoenix (Maricopa County) and Tucson (Pima) and the New Mexico county 
containing Albuquerque (Bernalillo) are excluded from the region 
defined for this impact analysis because their large economies would 
substantially deemphasize the economic impacts in the remainder of the 
region. Pima County, which includes the Tucson metropolitan area, 
contains almost 34,000 acres proposed for critical habitat designation; 
however, current Forest Plans do not include timber harvest from the 
CHUs in Pima County.
    Native Americans account for 24 percent of the population in the 
region, and the 250,000 residents of Native American descent represent 
13 percent of the Native Americans in the United States. Residents of 
Hispanic descent account for 24 percent of the 1990 population in the 
region, or 258,000 residents.
Regional Economic Profile

Employment

    Employment in the Mexican spotted region totaled 451,000 full- and 
part-time workers in 1991. The most striking characteristic of the 
region's employment base is the predominance of government employment. 
Nearly one-quarter (23.7 percent) of all jobs in the region in 1991 
were based on Federal, State, and local governments--much higher than 
the rate of government employment in the national economy. Relative to 
the national economy, the region provided a higher proportion of 
employment in the Government, Retail Trade and Mining sectors, and a 
lower proportion of jobs in the Manufacturing and Services sectors. 
Employment in the Solid Wood & Paper sector represented 1.1 percent of 
the region's total job base, nearly matching the national rate of 1.2 
percent. [[Page 29922]] 

Household Income

    Household income totaled $13.9 billion in the region in 1991. The 
largest proportion of household income, $5.7 billion or 40.8 percent, 
was provided by sources outside the region, including pensions, 
government support payments, other ``unearned'' income, and wages paid 
by firms outside the region (e.g., wages paid to a resident of Sandoval 
County who works in Bernalillo County). The Government sector generated 
the second largest proportion of household income in the region (20.1 
percent), followed by Services (12.8 percent). The Solid Wood & Paper 
sector provided $107.9 million in household income (0.8 percent of 
total) in the region in 1991.

Sales Revenues

    Gross sales revenues (including resale of domestic and foreign 
imports and excepting the Trade sector which reports value added) in 
the region totaled $27.2 billion in 1991. The Mining sector generated 
about $4.5 billion in sales (16.6 percent of total), followed by the 
Services sector, the sales from which totaled $4.3 billion (15.8 
percent). The Solid Wood & Paper sector generated $516 million (1.9 
percent) of sales revenues in the region in 1991.

Role of Forests in the Region

    Forests in the owl's range contribute to the regional economy as 
timber, a commodity input to the Solid Wood & Paper sector, and 
nontimber, a recreation resource and contributor to quality of life. 
The impacts created by commodity uses are market-based and measurable. 
The second set of impacts are partially nonmarket in nature, and are 
acknowledged to exist but often are difficult to quantify.

Timber Resources

    Few timber harvest data are available for non-Federal lands in the 
region. The following analysis relates to timber harvest from Forest 
Service land, unless otherwise noted. Forest Service timber statistics 
for the Southwestern Region (includes all of Arizona and New Mexico) 
were used, and thus reflect an area slightly different than the region 
included in critical habitat. (The Southwestern Region statistics 
exclude the three counties in Colorado and Utah, and they include more 
than a dozen counties in Arizona and New Mexico outside the region).
    During the last 20 years, timber harvest in the Southwestern Region 
exhibited two distinct periods, punctuated by the national recession in 
the early 1980s. From 1975 to 1980, harvest of all timber species 
averaged 378 million board feet (MMBF) annually. From 1983 to 1989, 
annual harvest averaged 460 MMBF. Timber harvests declined sharply in 
1990 and again in 1993 as changes in forest management policies 
occurred. In 1990, the Forest Service projected a peak in employment in 
softwood lumber and plywood industries in the Rocky Mountain region 
(includes 12 States from Montana to New Mexico) by the turn of the 
century, with a steady decline in employment thereafter. The Forest 
Service forecast identified reduced harvest potential and the continued 
implementation of labor-saving technology as bases for the decline. 
Timber harvest from the Southwestern Region totaled 141 MMBF in 1993. 
The Southwestern Region supplied about 5.0 percent of the volume of 
timber harvested from the western U.S. during the last decade, ranging 
from 3.5 percent in 1993 (141 MMBF harvested from Arizona and New 
Mexico) to 5.9 percent in 1992.
    The average price of timber harvested from Forest Service land has 
varied widely since 1975, but it has risen since 1990 (prices not 
adjusted for inflation). Timber price averaged $48/thousand board feet 
(MBF) from 1975 to 1990, before doubling to $103/MBF in 1993. Through 
the first nine months of 1994, 133 MMBF had been harvested with an 
average price of $113/MBF.

Employment

    Timber cutting in the region directly provides employment in timber 
harvesting and processing industries. Employment also is generated 
indirectly in firms providing services and supplies to timber-related 
industries and their employees.
    State-wide direct employment in wood industries in Arizona and New 
Mexico totaled 9,800 jobs in 1990. Direct employment in Solid Wood and 
Paper industries in the region totaled nearly 4,800 full- and part-time 
workers in 1991, just over one percent of the total jobs in the region. 
Sawmills provided the most jobs among Wood industries in 1991, followed 
by Logging Camps.
Household Income

    Household income generated by the Solid Wood and Paper sector in 
the region totaled approximately $108 million in 1991, less than one 
percent of the $13.9 billion total household income in the region. 
Sawmills provided $40 million in household income in 1991 (37 percent 
of the Solid Wood and Paper sector's total in the region), followed by 
paper mills with $29 million (27 percent). Logging camps and millwork 
industries each provided about $11 million in household income in 1991.

Nontimber Forest Uses

    Forests in the region support a variety of uses in addition to 
providing raw materials for wood and paper industries. Recreation, 
biological diversity, water quality protection, and intrinsic benefits 
all are generated by forests in the owl range. Some of these activities 
contribute directly to the regional economy; others are nonmarket 
impacts that benefit the public without affecting the market economy.
    Reduced timber harvest on Federal land may improve natural 
resource-based recreational opportunities in the owl range if public 
access is not significantly affected. Recreation activities that depend 
on water quality (fishing, swimming, and boating), the presence and 
abundance of wildlife (wildlife viewing and nature study), and the 
general quality of forest surroundings (motorized and nonmotorized 
travel for sightseeing, camping, and picnicking) may increase in 
frequency and value with improved forest quality.
    Spending on outdoor recreation by nonresidents brings money into 
the economy of the region. If the quality of natural resources 
declines, total spending by residents of the region is unlikely to 
change significantly; rather, spending will be redistributed from 
recreation to nonrecreation activities, or residents may increase 
recreation outside the region. In either case, the reduced quality of 
natural resources is likely to result in lower recreation expenditures 
in the region. That portion of spending that relocates outside the 
region represents a loss of economic activity due to the degradation of 
natural resources.
    Recreational fishing occurred frequently throughout the region in 
1991. Approximately 639,000 anglers fished in the region in 1991, 
recording nearly 4.9 millon angler days. These anglers spent about 
$50.42 per day, or $245.3 million in the region in 1991. About 196,000 
anglers (31 percent) were nonresidents who fished 1.2 million angler 
days (24 percent) and spent about $88.17 per day, or $104.1 million (44 
percent). More than 440,000 resident anglers averaged about $38.32 
spending per day during 3.7 million angler days to record $141.2 
million total spending.
    Net benefits due to recreational fishing can be estimated for these 
fishing trips. Walsh et al. (1990) summarized net economic benefits for 
39 coldwater fishing trips and found [[Page 29923]] these averaged 
about $30.62 per day in 1988. Assuming a per-day value of $36.69 
($30.62 adjusted for inflation to 1991 dollars), the 4.9 million 
fishing-days provided an estimated annual consumer surplus to anglers 
of $179.8 million in 1991.
    Recreational hunting was pursued by 240,000 participants during 
1991. These hunters recorded about 1.9 million days while hunting in 
the region, and spent about $29.49 per day, or $56.0 million during the 
year. About 48,000 participants (20 percent of total) were nonresidents 
who hunted 278,000 days (15 percent), averaging about $85.93 per day in 
expenditures, or $23.9 million annually (43 percent). The 192,000 
resident hunters recorded 1.6 million days and spent $19.71 per day, or 
$31.6 million for the year.
    Net benefits from recreational hunting can be estimated for these 
trips. Walsh et al. (1990) summarized net economic benefits for big-
game and small-game hunting. Big-game hunting estimates in 1990 for net 
value per person per day averaged $45.47 while small-game hunting 
averaged $30.82. Assuming a daily value for hunting of $49.37 
(inflation-adjusted weighted average of big- and small-game hunting), 
the 1.9 million days provided an estimated annual consumer surplus to 
hunters of $93.8 million.
    Throughout the region in 1991, 884,000 participants observed, 
photographed, and fed wildlife. Nonresident participants numbered 
340,000 (38 percent), while 544,000 participants lived in the region. 
In total, 4.6 million trips occurred during 7.1 million days in 1991 
involving nonconsumptive wildlife activities.
    These 884,000 participants spent an average $57.62 per day on 
nonconsumptive wildlife activities, for a total $50.9 million in 1991. 
These expenses included items such as field guides, binoculars and 
spotting scopes, cameras and accessories, bird seed, and feeder boxes. 
Net benefits can be estimated using the average of $22.20 per person 
per day obtained by Walsh et al. (1990) for wildlife observation. In 
1991, the 7.1 million participant-days, at $26.60 per day ($22.20 
adjusted for inflation to 1991 dollars) generated total net benefits 
for the region of $188.9 million.
    A national survey sponsored by the Forest Service in April 1994 
found there is strong support for conservation of public forests and 
preservation of threatened and endangered species. The survey results 
indicate the public's support for reduced commercial and recreation 
uses and increased conservation uses of national forests. When asked 
whether ``threatened and endangered species in American public forests 
and grasslands should be protected even if it has a negative economic 
impact on U.S. citizens,'' 61 percent of the survey respondents agreed 
or strongly agreed, while 24 percent disagreed or strongly disagreed. A 
larger majority (79 percent) agreed or strongly agreed with the 
statement ``(l)ong term health of public forest land should not be 
compromised by the short term need for natural resources.''
    The survey indicates the environmental importance of the public 
lands over commercial uses and concern for future impacts of public 
forest uses. Eighty-two percent of respondents agreed that ``(t)he 
primary purpose of managing public forests is to maintain a healthy 
environment.'' The statement ``(t)he consumer needs of the American 
public should be satisfied even if the natural resources on public 
forests are eventually depleted'' elicited disagreement from 73 percent 
of respondents. Ninety percent of survey participants agreed or 
strongly agreed that ``(t)he Federal government has the responsibility 
of conserving public forest resources for future generations,'' and 80 
percent agreed that ``(t)he need for the conservation of natural 
resources on public forest lands will increase in the 21st century.''

Economic Consequences of Designating Critical Habitat for the Mexican 
Spotted Owl

    The Service has identified commercial timber harvest as the primary 
activity to be curtailed by proposed critical habitat designation, and 
concluded that activities such as recreational uses, cutting firewood 
for personal use, and surface disturbances (e.g., minerals extraction) 
that do not affect standing timber will not be affected by the proposed 
action. The time constraints under which the Economic Analysis was 
conducted allowed no independent estimates of timber harvest and little 
verification of agency responses. With few exceptions, therefore, the 
economic consequences are based on projections from the respondents 
outlined below.

Agency Responses

    Three scenarios were presented to more than 80 Federal, State, 
county, and Tribal agencies by the Service in the request for 
information on economic impacts resulting from the proposed critical 
habitat designation. Two of the three centered on impacts resulting 
from changes to timber harvest volumes. ``Alternative 1'' was defined 
as the current management guidelines or baseline harvest, ``Alternative 
2'' described the implementation of the draft Recovery Plan, and 
``Alternative 3'' defined additional restrictions associated with the 
proposed designation of critical habitat above those described in the 
draft Recovery Plan. Therefore, the Economic Analysis estimates the 
reduction in timber harvest and accompanying costs in incremental 
steps, first from baseline harvest to allowable harvest under the draft 
Recovery Plan and then from that level to allowable harvest with 
critical habitat designation in place. The Economic Analysis also 
includes a measurement of impacts that would result from the critical 
habitat designation if the draft Recovery plan were not implemented, 
which essentially are the combined impacts on timber harvest under the 
draft Recovery Plan and critical habitat designation. This range of 
alternatives was presented to allow the Economic Analysis to fully 
consider the entire range of economic impacts that could result from 
the various management approaches to timber harvest.
    During the comment period following publication of the proposed 
rule, there were numerous discussions within and between the Service 
and the Forest Service regarding various criteria to be used to 
determine potential effects to the owl and its critical habitat from 
timber harvest. As a result, Region 2 of the Service issued an interim 
policy on April 14, 1995, to clarify how section 7 consultations would 
be conducted. The interim policy stated, ``* * * any activity in 
compliance with the draft recovery plan should be considered 
insignificant in terms of effects on the species' recovery and 
survival.'' and therefore would not be required to undergo formal 
section 7 consultation. In essence, the policy made protective measures 
under the draft Recovery Plan and the proposed critical habitat 
designation equivalent; no additional restrictions would be applied 
within critical habitat units. Therefore, in the economic analysis, the 
costs attributable to critical habitat designation in areas managed to 
implement the Recovery Plan reflect a worst-case scenario, and are 
greater than what is expected under the interim policy. The costs 
resulting from the critical habitat designation are expected to be 
equivalent to those predicted under the draft Recovery Plan. The 
impacts on timber harvest within the region from the proposed action 
are presented in Table 2.

                                                                                                                
[[Page 29924]]
          Table 2.--Reductions in Timber Harvest (in Thousand Board Feet) From Management Alternatives          
----------------------------------------------------------------------------------------------------------------
                                                                                             Critical   Critical
                                                                                             habitat    habitat 
                                                                                Enactionof    after     without 
                                                                      Baseline      the      enaction   enaction
                                                                       level     proposed     of the     of the 
                                                                                 recovery    proposed   proposed
                                                                                   plan      recovery   recovery
                                                                                               plan       plan  
----------------------------------------------------------------------------------------------------------------
Non-Tribal Timber Harvest:                                                                                      
  Northeast........................................................     14,800     (3,400)    (3,400)    (6,800)
  Southeast........................................................      1,500       (800)        (0)      (800)
  West.............................................................     57,700    (42,200)    (6,800)   (49,000)
                                                                    --------------------------------------------
      Total........................................................     74,000    (46,400)   (10,200)   (56,000)
                                                                    ============================================
Tribal Timber Harvest:                                                                                          
  Northeast........................................................      3,600     (2,700)      (500)    (3,200)
  Southeast........................................................      6,100     (4,400)      (700)    (5,100)
  West.............................................................     18,700    (10,800)    (7,700)   (17,800)
                                                                    --------------------------------------------
      Total........................................................     28,400    (17,900)    (8,200)   (26,100)
                                                                    ============================================
Total Timber Harvest:                                                                                           
  Northeast........................................................     18,100     (6,100)    (3,900)   (10,000)
  Southeast........................................................      7,600     (5,200)      (700)    (5,900)
  West.............................................................     76,400    (53,000)   (13,800)   (66,800)
                                                                    --------------------------------------------
      Total........................................................    102,400    (64,300)   (18,400)   (82,700)
----------------------------------------------------------------------------------------------------------------

  The following Federal agencies and Tribes responded to the 
Service's request to estimate impacts resulting from designating 
critical habitat as proposed.
    The Acting Area Director of the Phoenix office of the Bureau of 
Indian Affairs (BIA) objected to the proposal to designate critical 
habitat on Tribal lands as ``contrary to policy direction and 
principles'' of standing agreements. Information he provided regarding 
possible impacts to the San Carlos Apache Tribe is described below.
    The Acting Area Director of the Albuquerque office of the BIA 
objected to the proposal to designate critical habitat on Tribal lands 
for several primarily biological reasons. He estimated the impacts of 
the proposed critical habitat designation on the Jicarilla Apache, 
Mescalero Apache, and Southern Ute Tribes. His reply regarding timber 
harvest levels is also described below.
    The Bureau of Land Management's (BLM) State offices in Arizona and 
New Mexico did not foresee economic or other impacts due to the 
proposed critical habitat designation. The BLM'S Colorado State office 
identified one area of potential timber harvest, but stated ``there are 
no current or future plans to harvest or conduct forest operations in 
the area.'' The area, if accessible, could yield 1.2 MMBF of timber. 
Because there are no plans to harvest this timber due to access 
problems, this timber volume was not included in the impact modeling. 
The Utah State office did not respond to the Service's request for 
data.
    The NPS administers two sites (Canyon de Chelly and Walnut Canyon 
National Monument) in its Southwest Region that may be affected by the 
proposed critical habitat designation. The NPS Regional Director 
identified potential impacts to Native American residents at Canyon de 
Chelly, but was unable to quantify the effects or estimate the 
probability of the impacts being realized.
    As requested, the Southwestern Region of the Forest Service 
provided three levels of timber harvest for each National Forest 
affected by the proposed critical habitat designation.
    The Regional Forester from the Rocky Mountain Region (includes 
Colorado) foresaw no impacts due to critical habitat designation as 
proposed because no harvest is planned in CHUs.
    The Intermountain Region of the Forest Service (includes Utah) did 
not expect Alternative 2 to impact timber sales, except in very limited 
areas (along the mesa rims) where mixed conifer occurs. With respect to 
Alternative 3, an Acting Forest Supervisor responded ``it is difficult 
to determine the costs and benefits from implementing these 
prescriptions because similar guidelines are already being considered 
in order to maintain ecosystem complexity and other rare species.''
    The Acting Area Director of the Albuquerque Office of the BIA 
estimated the effect of the proposed designation on the Jicarilla 
Apache, Mescalero Apache, and Southern Ute Tribes. The BIA estimated 
that, currently, 23.5 MMBF are harvested annually from 9,700 acres 
(2,400 BF/acre), with a value of $7.8 million ($332/MBF). He stressed 
that Tribes have high unemployment and low per capita annual income, 
and that 60 percent of the jobs generated by timber harvest on the 
Reservations are held by Tribal members.
    The BIA estimated that 184 jobs and $3.7 million in annual payroll 
($20,100 per job annually) would be lost by implementing the proposed 
Recovery Plan and the proposed designation of critical habitat. The 
BIA's estimate of harvest quantity impacts to the three Tribes was 
difficult to evaluate for several reasons: (1) Alternative 1 was 
defined as the current management, yet the BIA predicted a reduction of 
harvest from present levels; (2) harvest levels under each alternative 
were not specified--impacts were stated in terms of protected activity 
centers (PACs), but the number of PACs was not specified; and (3) the 
effects for all three Tribes were aggregated. Timber harvests under 
each alternative were based on reduction patterns derived from other 
respondents (primarily the Forest Service).
    The Southern Ute Tribe's timber harvest averaged about 1.6 MMBF 
during the last six years. Based on the Tribe's estimate of seven jobs 
per MMBF, just over 11 jobs per year were [[Page 29925]] created in the 
Solid Wood & Paper sector. Administration and reclamation efforts 
employ another six to nine persons annually, several of whom are Tribal 
members. For this analysis these are treated as direct jobs in the 
Solid Wood & Paper sector. The Tribe estimates critical habitat 
designation will affect about 75 percent of the Southern Ute timber 
harvest, impacting 1.4 MMBF (allowable harvest) and presumably a 
similar portion of jobs. This represents a slight increase of job 
losses (and a corresponding impact to income and revenues) from impacts 
originally estimated using data from the BIA.
    The impact analysis assumes the timber harvested was processed in 
the counties according to the BIA reply. Two of the mills were located 
in Otero County, at which the timber (13.5 MMBF) from the Mescalero 
Apache Reservation was assumed to be processed. The remaining 10 MMBF 
were processed in Rio Arriba County and assumed to be harvested from 
the Southern Ute or Jicarilla Apache Reservations.
    The current timber program of the Navajo Nation produced 12.4 MMBF 
in 1994 from the Chuska/Tsaile forest (within proposed critical 
habitat), and 6.7 MMBF from the Defiance Plateau forest (outside 
proposed critical habitat). This 19.1 MMBF of annual timber harvest was 
processed by the Navajo Forest Products Industry (NFPI) mill in Navajo, 
New Mexico, which provided 130 direct jobs before its temporary closure 
in July 1994 (approximately seven jobs per MMBF). The NFPI mill closed 
in July 1994 because the Navajo Nation Ten Year Forest Management Plan 
[FMP] was not complete. All timber harvest on the Navajo Nation has 
ceased until the FMP is complete, which is estimated to be around June 
or July 1996. The Navajo Nation reports that ``18 million board feet is 
needed for NFPI to operate feasibly'' and that critical habitat 
designation would reduce timber harvest below this level. The NFPI 
attempted to remain open (prior to closing in mid-1994) by purchasing 
timber outside of the Navajo Nation, but was unable to do so. Current 
Navajo Nation policies prohibit selling timber off the Reservation.
    The Navajo Nation estimated that implementing the proposed Recovery 
Plan (Alternative 2) would reduce timber harvest from the Chuska/Tsaile 
forest to 6.2 MMBF (50 percent reduction), reducing potential timber 
harvest to 12.9 MMBF annually (including the undiminished harvest from 
the Defiance Plateau), a harvest level too low for the NFPI mill to 
operate. According to the Tribe, designating critical habitat as 
proposed will eliminate all harvest from the Chuska/Tsaile forest, 
thereby reducing the Nation's potential timber harvest to 6.7 MMBF (the 
harvest from the Defiance Plateau), also too low for the NFPI mill to 
operate profitably.
    Per capita income in the Navajo Nation totaled $5,300 in 1994, much 
lower than the national average of $18,700 in 1990 (U.S. Bureau of the 
Census 1994). Unemployment in the Navajo Nation measured nearly 39 
percent in 1992, sharply higher than the 28 percent rate in 1990, and 
matching the 39 percent unemployment in 1980. The Solid Wood & Paper 
sector provided 1.5 percent of employment to the Navajo Nation in 1992, 
a level slightly higher than regional (1.1 percent) and national (1.2 
percent) proportions of the preceding year. Information provided by the 
Navajo Nation indicates the proportion of employment of wood-related 
employment was considerably lower by 1994. The NFPI mill was the 10th 
largest employer in the Navajo Nation before its temporary closure in 
mid-1994.
    For purposes of the analysis, the sequence of implementation of 
management alternatives is essential to estimating the effects of 
critical habitat designation to the Navajo Nation. If the Recovery Plan 
is implemented before critical habitat designation (Alternative 2), the 
Nation's timber harvest already will have fallen to 12.9 MMBF, 
resulting in the closure of NFPI. Because the mill already will have 
closed (or not reopened) due to insufficient harvest, and timber is not 
sold off the Reservation, there would be no incremental effect of the 
designation. However, if critical habitat were designated first, the 
Navajo Nation timber harvest would fall from 19.1 MMBF to 6.7 MMBF--and 
the effects of the mill closure (or failure to reopen) would be 
attributable to the designation. These scenarios assume the mill's 
closure is temporary and will reopen upon approval of the FMP.
    The proposed designation was estimated to disrupt timber 
availability to the San Carlos Apache sawmill, thereby possibly causing 
the enterprise's closure and loss of 31 Tribal jobs. Closing the 
sawmill would ``impair economic development [of the Tribe] beyond the 
sawmill enterprise.'' Neither the BIA nor the San Carlos Apache Tribe 
provided estimates of timber harvest under the three scenarios. The 
impact analysis assumes that harvest levels on the San Carlos 
Reservation are affected in proportions similar to those in other 
forests in the region.
    Several state or county agencies provided information to the 
Service, as described below.
    The Arizona Game and Fish Department concluded that it would not be 
affected by the proposed action.
    The Arizona State Land Department (ASLD) identified four timber 
product sales that might be affected by designating critical habitat as 
proposed for the owl, one of which is planned for sale in 1995 and 
three of which will be sold in consecutive years beginning in 2007. 
According to the ASLD, none of the sales is ``likely to adversely 
affect the MSO.'' The impact analysis reflects the ASLD response that 
designating critical habitat for the owl will not affect timber harvest 
on Arizona State lands.
    Graham County, Arizona estimated direct, indirect, and induced 
impacts totaling nearly $37 million due to factors ranging from reduced 
Federal timber harvest to decreased livestock grazing to canceled 
campground expansions. The impacts identified by the County included 
effects from spending multipliers, lost wages from displaced workers, 
and forfeited county share of Federal receipts. Because most impacts 
were site-specific the Arizona Ecological Services State Office 
reviewed the County's projections, and provided the following comments:
    (1) The County estimated impacts of $24 million due to canceling 
construction-expansion on 8.6 acres at the Steward Observatory. 
Informal consultations in November 1993 on a portion of the 24-acre 
Observatory site had resulted in a ```not likely to adversely affect''' 
finding for the owl. If the Service conducted a section 7 consultation 
on the Steward Observatory project, it would be highly unlikely that an 
``adverse modification'' determination would be made for these proposed 
actions; therefore only discretionary recommendations would be given by 
the Service. The action agency may choose whether or not to implement 
these recommendations.
    (2) The County estimated impacts of $12 million due to canceling 
construction activities at Discovery Park, including a new visitor 
center and its access road. The visitor center is understood to be 
planned outside forested habitat, however, and therefore will not have 
an effect on proposed critical habitat. Repaving Discovery Trail in its 
existing road bed would not cause direct loss of critical habitat, 
while widening or realignment of the road would likely cause some 
habitat loss, but it is highly unlikely that enough habitat would be 
affected for [[Page 29926]] adverse modification to occur. Thus, only 
discretionary recommendations would likely be given.
    (3) Impacts to timber harvesting (Federal timber and firewood use) 
will cost Graham County $78,000 annually in gross timber sale revenues, 
according to the County. Federal impacts are discussed above. Firewood 
harvest should not be impacted by designating critical habitat, and 
extractive use of small and mid-diameter trees is not a component that 
has been limited as a result of Service review and recommendations. In 
fact, projects (such as thinning and prescribed fire) that have sought 
to address some of the structural changes resulting in increased fire 
danger have been strongly encouraged by the Service.
    (4) Graham County estimated impacts of $179,000 annually to 
electronic sites at Heliograph Peak due to the ``potential to adversely 
affect the communications industry.'' The existing electronic sites at 
Heliograph Peak are on a small unforested site, however, and given the 
site characteristics it would appear that no habitat modifying activity 
would be necessary to continue to operate this facility. There thus 
should be no effect attributable to critical habitat.
    (5) The County estimated impacts to grazing would cost Graham 
County $445,000 annually. However, at this time there is no direct 
evidence that grazing adversely affects Mexican spotted owl critical 
habitat, and thus grazing allotments should not be affected by critical 
habitat designation. Further, the Service has not required 
discontinuation of grazing to protect the owl in any action related to 
critical habitat designation.
    (6) The County estimated canceling expansions at three campgrounds 
would cause impacts of more than $120,000 annually. The sites may be 
affected by critical habitat designation, depending on their location 
and size. One of the three campgrounds identified by the County was 
issued an incidental take permit during previous formal consultations. 
The other two campgrounds could, but are not likely to, adversely 
modify critical habitat.
    Graham County likely will incur added costs due to project 
redesigns or added costs of consultation, but these presently are not 
quantifiable. The impact to Graham County from reduced commercial 
timber harvest on Federal land as identified by the Forest Service is 
described below under ``Economic Impacts and Effects.''
    Assessing the potential impacts to private landowners requires 
separation of the effects due to listing the owl and those of 
designation of critical habitat. Activities on private lands are 
affected by the designation only when a Federal nexus exists, such as 
mandatory authorization or permits, or when Federal funding is 
involved. Given that commercial timber harvest is the primary activity 
affected by the designation, private landowners are unlikely to be 
impacted by the proposal. None of the Federal agencies contacted by the 
Service identified ways in which private landowners might be affected 
indirectly by the proposed action.

Economic Impacts and Effects

    The following are estimates of short-term consequences of the 
proposed designation of critical habitat for the Mexican spotted owl. 
Economic costs are created when the losses of income and employment are 
not temporary. Historically, a number of small communities in the 
region have received substantial employment and income generated by 
timber industries. Reducing a community's reliance on timber as a 
commodity to one based on other economic activity may negatively impact 
some communities.
    From the agencies' responses, two levels of employment impacts were 
estimated: (1) Job losses attributable to implementing the proposed 
Recovery Plan, and (2) job losses attributable to the proposed critical 
habitat designation following the enactment of the proposed Recovery 
Plan. If the proposed Recovery Plan is not implemented the impacts from 
critical habitat designation as proposed would be the combined impacts 
of Alternatives 2 and 3. Once again, these estimates are based on an 
assumption that critical habitat designation has effects over and above 
those of implementing a recovery plan. Under current consultation 
policies, this assumption causes an overestimate of the impacts of 
designation. Short-term regional economic consequences are presented in 
Table 3.

Employment

    Curtailing timber harvest due to the proposed designation of 
critical habitat will result in job losses in the short run, primarily 
in the timber industry. In addition to those jobs ``directly'' affected 
by reduced timber harvest, others will lose employment ``indirectly'' 
due to the reduced spending by employees and firms in the Solid Wood 
and Paper sector. To gauge the proportional impact, direct employment 
losses should be compared to employment in the Solid Wood and Paper 
sector, while total impacts (direct plus indirect) should be compared 
to employment in all sectors (Table 3).
    The economy of the region would lose 366 jobs (0.08 percent of 
total regional employment) from implementation of the draft Recovery 
Plan. Of these, 271 jobs are direct employment in the Solid Wood and 
Paper sector (5.7 percent of 1991 employment in wood industries) and 94 
are jobs in other sectors. Reduced Tribal timber harvest would account 
for the loss of 156 jobs of the 271 jobs lost in the Solid Wood and 
Paper sector (58 percent of direct employment losses), and 26 of 94 
jobs lost in other sectors (28 percent of indirect employment losses).
    The economy of the region would lose 147 jobs (0.03 percent of 
total regional employment), if the proposed critical habitat 
designation follows implementation of the proposed Recovery Plan. Of 
these, 120 jobs are direct employment in the Solid Wood and Paper 
sector (2.5 percent of 1991 employment in wood industries), and 27 are 
jobs in other sectors. Reduced Tribal timber harvest would account for 
the loss of 95 of 120 jobs lost in the Solid Wood and Paper sector (80 
percent of direct employment losses), and 12 of 27 jobs lost in other 
sectors (44 percent of indirect employment losses).
    The economy of the region would lose 513 jobs (0.11 percent of 
total regional employment), if critical habitat is designated without 
the proposed Recovery Plan having been implemented. Of these, 391 jobs 
are direct employment in the Solid Wood and Paper sector (8.1 percent 
of 1991 employment in wood industries), and 121 are jobs in other 
sectors. Reduced Tribal timber harvest would account for the loss of 
250 of 391 jobs in the Solid Wood and Paper sector (64 percent of 
direct employment losses), and 37 of 121 jobs lost in other sectors (30 
percent of indirect employment losses).

Household Income

    The household income of some residents in the region will decline 
in the short run due to the proposed action. The households at greatest 
risk of income loss are those of employees of the timber industries. As 
timber industries reduce spending, the employment and income levels of 
other nontimber firms will also be negatively affected. Household 
income totaled $13.9 billion for the region in 1991 (Table 3).

                                                                                                                
[[Page 29927]]
  Table 3.--Region-Wide Short-Term Employment Losses and Reductions in  
    Household Income and Sales Revenues From Management Alternatives    
------------------------------------------------------------------------
                                                  Critical     Critical 
                                                  habitat      habitat  
                                   Enaction of     after       without  
                        Baseline       the      enaction of  enaction of
                         level       proposed       the          the    
                                     recovery     proposed     proposed 
                                       plan       recovery     recovery 
                                                    plan         plan   
------------------------------------------------------------------------
Employment (in full-                                                    
 and part-time                                                          
 jobs):                                                                 
    All sectors.....      451,050        (366)        (147)        (513)
    Solid wood and                                                      
     paper sectors..        4,770        (271)        (120)        (391)
Household Income (in                                                    
 $ million):                                                            
    All sectors.....       13,939        (4.7)        (1.3)        (6.0)
    Solid wood and                                                      
     paper sectors..          108        (3.3)        (0.9)        (4.2)
Sales revenues (in $                                                    
 million):                                                              
    All sectors.....       27,189       (20.7)        (5.9)       (26.5)
    Solid wood and                                                      
     paper sectors..          516       (15.9)        (4.5)       (20.4)
------------------------------------------------------------------------

  The economy of the region would lose $4.7 million in household 
income (0.03 percent of total regional household income) from 
implementation of the proposed Recovery Plan. Of this amount, $3.3 
million would be lost from the Solid Wood and Paper sector (3.0 percent 
of regional household income from the sector), and $1.4 million from 
other sectors. The loss of household income due to reduced Tribal 
timber harvest would total $1.4 million (30 percent of tribal household 
income lost).
    The economy of the region would lose $1.3 million household income 
(0.01 percent of total regional household income), if the proposed 
critical habitat designation follows implementation of the proposed 
Recovery Plan. Losses from the Solid Wood and Paper sectors would total 
$0.9 million (0.8 percent of sector total), and $0.4 million from other 
sectors. Reduced Tribal timber harvest would account for the loss of 
$0.7 million (50 percent of tribal household income lost).
    The economy of the region would lose $6.0 million household income 
(0.04 percent of total regional household income) from designating 
critical habitat if the proposed Recovery Plan has not been 
implemented. Of this amount, $4.2 million (3.8 percent of sector total 
household income) would be from the Solid Wood and Paper sector, and 
$1.8 million from nonwood industries. The household income lost from 
reduced Tribal timber harvest would total $2.0 million in (33 percent 
of tribal household income lost).

Sales Revenues

    As timber harvests are curtailed throughout the region, business 
activity dependent on timber industries will slacken in the short run 
as well. Local governments' tax receipts may fall accordingly in the 
short-term. Total gross sales in the region totaled $27,189 million in 
1991 (excepting the Trade sector, which reports value added), including 
gross sales revenues in the Solid Wood and Paper sector totaling $516 
million (Table 3).
    Gross sales revenues in the region economy would fall $20.7 million 
(0.08 percent of total regional sales revenues) from implementation of 
the proposed Recovery Plan. Of this, $15.9 million revenues would be 
lost from the Solid Wood and Paper sector (3.1 percent of 1991 sales by 
wood industries), and $4.8 million would be lost from other sectors.
    Gross sales revenues in the economy of the region would fall $5.9 
million (0.02 percent of total regional sales revenues), if the 
proposed critical habitat designation follows implementation of the 
proposed Recovery Plan. Of this, $4.5 million revenues would be lost 
from wood industries (0.9 percent of 1991 sales revenues by the Solid 
Wood and Paper sector), and $1.4 million of the reduction would be 
borne by nonwood sectors.
    The economy of the region would experience a loss of $26.5 million 
of gross sales revenues (0.10 percent of total regional gross sales) if 
critical habitat is designated without enacting the proposed Recovery 
Plan. Of this amount, gross sales in the Solid Wood and Paper sector 
would fall by $20.4 million (3.9 percent of 1991 sales revenues in wood 
industries), and $6.1 million would be lost from other sectors.

Impacts to Local Communities and Counties

    The proposed action could affect smaller communities and counties 
whose economies are closely tied to timber harvests. Most of the 
impacts that will occur from efforts to protect the owl probably have 
occurred already, brought about by listing of the owl and other species 
and by other management changes within the Forest Service. Nonetheless, 
the proposed critical habitat designation can further impact these 
counties by reducing taxable sales revenues and curtailing payments 
from Federal agencies.
    Forest Service payments to counties may be reduced by the proposed 
critical habitat designation. The Forest Service pays 25 percent of its 
timber and other receipts to counties for support of county roads and 
schools. Most of the receipts in the region are from timber harvest. 
Forest Service receipts from timber harvest totaled about $32 million 
in 1989 and dropped to $22 million in 1993. Counties' shares totaled 
about $8 million in 1989 and about $5.4 million in 1993.
    However, the actual impact to communities from reductions in Forest 
Service payments may be less than it seems at first. For most 
communities, reductions in payments from the Forest Service are offset 
by increases in other payments. Counties receive funds from the Federal 
government through payments in lieu of taxes (PILT). Among the factors 
that determine the amount of PILT paid to counties is Forest Service 
receipts. As Forest Service receipts decline, PILT payments increase. 
The impact on most counties is small, although a few counties in the 
region receive a substantial share of funds from the Forest Service and 
decreased timber receipts may not be offset entirely by higher PILT 
payments.
    Catron County is one of the counties that receive a substantial 
share of Forest Service payments. In 1993, Catron County received 
$209,000 in county road and school funds from the Forest Service, an 
amount which would not be fully compensated for by PILT if it is lost. 
While it is unlikely that all of the Forest Service payments would be 
[[Page 29928]] eliminated, this amount is at risk in Catron County. 
Coconino County also is at risk from reduced timber harvests. The 
county received about $2.5 million in 1993 from Forest Service timber 
sales receipts. As with Catron County, a portion of these payments is 
at risk of not being replaced with PILT increases.

Nonmarket Benefits and Costs
    Society stands to realize benefits and costs from the proposed 
designation of critical habitat for the owl. Economic benefits and 
costs are created when the effects of designation are not temporary, or 
do not adjust after the economy's transition. Benefits may include 
sustained biodiversity of the region, heightened intrinsic benefits 
from ensuring future environmental quality, and increases in the value 
of recreation opportunities. According to the Forest Service, ``Areas 
managed for Mexican spotted owl and northern goshawk habitat will have 
beneficial effects on the soil, water, and air resources due to 
restrictions on ground-disturbing activities.'' Costs may include 
increased expenses related to fire danger from limitations on some 
timber harvest activities, reduction of income to some sectors of the 
economy, and impact on tax receipts.
    Arguments persist as to the economic sustainability of Federal 
timber programs in Arizona and New Mexico: critics point to Forest 
Service reports that show timber harvests in the region are conducted 
below cost, and claim harvest reductions will reduce losses to the U.S. 
Treasury. Supporters counter that Federal timber programs sustain the 
economies of rural communities and reduce the risk of stand replacing 
forest fires. An independent evaluation was not conducted for this 
analysis.
    The nonmarket benefits accruing to society from species 
preservation are sometimes costly to quantify. Costs, in contrast, are 
more easily estimable and attract notice because effects often are 
market-based and localized. To properly compare benefits and costs, the 
full range of each must be considered. Benefits such as preserving 
species and increased environmental quality accrue to a large regional 
or national constituency. Costs follow an opposite trend; they are most 
significant locally but diminish rapidly as the focus becomes more 
national in scale. Data are not available at this time to estimate 
specifically the nonmarket costs and benefits of the designation.
    One nonmarket benefit of the proposed action is the complementary 
impact on other listed and candidate species. The New Mexico Ecological 
Services State Office of the Service has described the benefits related 
to biological diversity that may result from the proposed critical 
habitat designation for the owl. The description is provided in the 
complete Economic Analysis.

Valuing Species and Their Habitat

    Nonmarket economic benefits stemming from ecological preservation 
have not been quantified for the proposed action. However, other 
research has estimated benefits gained from preserving rare or 
endangered species and their habitat.
    Estimates of species and habitat values, usually stated in terms of 
``willingness to pay per household,'' range from $5.55/year per 
household (1984 dollars) for preserving habitat of the striped shiner 
to $86.32/year per household (1991 dollars) to preserve northern 
spotted owls and their old-growth habitat in the Pacific Northwest. 
These figures could be extrapolated from their sample sizes to a range 
of between $12 million per year for the striped shiner to residents of 
Wisconsin, and $8.287 billion per year for the northern spotted owl to 
households nationwide. Residents might be expected to be willing to pay 
within this range to preserve the Mexican spotted owl and its habitat.
    Other empirical research offers evidence of nonmarket benefits of 
preserving components of ecological systems, including preventing 
forests from being developed, preserving air quality in parklands in 
the American Southwest, protecting spotted owls and old-growth forests 
in the Pacific Northwest, preserving river basins and preserving open 
space and ranchland from urbanization. These studies provide insights 
about public values for the presence (existence value), availability 
for future use (option value), and ability to preserve the resource for 
future generations (bequest value).
    Nonconsumptive and recreation uses of the owl, such as viewing and 
photography, may be limited due to its nocturnal nature. However, 
protection of the owl's habitat may provide for recreation uses in the 
region, including increased enjoyment of a nonlogged environment and 
enhanced hiking and camping, photography, bird watching, and similar 
nonconsumptive uses.
    Fishing, picnicking, horseback riding, and backpacking are examples 
of outdoor recreation that may be enjoyed in the range of the owl. 
These activities are not always sold in identifiable markets and thus 
their value must be quantified indirectly. Increased economic value 
from recreation can be observed from their contributions to sales and 
employment in sectors that provide outdoor recreationists with goods 
and services. In addition, ``net value'' to the consumer measures 
additional economic value after all costs to the consumer are 
subtracted. One survey-based study has estimated values on these types 
of outdoor recreation at between $17 and $49 per person per day (Walsh 
et al. 1990). These studies conclude that millions of dollars of net 
benefits are created annually for participants in these recreational 
activities.
    The increased threat of fire is a potential cost of designation. 
Curtailing timber harvest within CHUs may cause an increase in tree 
density and fuel loads within the forest. This can increase fire 
danger, decreasing the value of the forests and increasing the threat 
to those living or recreating in or near forests. This threat may be 
mitigated in part through removal of the timber creating the danger.
    According to the Forest Service (USDA 1994) fire suppression has 
allowed buildup of natural fuels, increasing the probability of fire 
spread and intensity. The Forest Service states that fire potential is 
affected by management activities--changing the age, distribution, 
density, and species selection can impact how fire affects the forest 
and habitat for the owl. The Forest Service supports proactive 
management practices such as prescribed fire and thinning treatments. A 
major obstacle preventing thinning may be the cost, as thinning has 
been supported by receipts from timber harvest.
    The Service expressed concern for fire and other forest health 
issues when the owl was listed, and acknowledged that fire suppression 
has resulted in large tracts of small trees at high densities that are 
now susceptible to wildfires. The Service supports thinning and 
prescribed fire used to control the increased fire danger. The 
increased threat of fire danger is a factor related to forest 
management practices of the past, including fire suppression and timber 
harvest regimes in the region. The analysis does not assess 
specifically the economic consequences of increased fire threat.
    The total value of social benefits of species preservation has been 
shown to be substantial in a variety of studies. The value of these 
benefits is expected to continue to rise over time as the number of 
households, relative to species and natural areas, increases. Given the 
information at hand, and without better understanding the network of 
consequences from management alternatives, it is not possible to 
disaggregate the sum of [[Page 29929]] benefits to identify that 
portion directly attributable to the designation.

Exclusion Process and Indian Lands

    The maintenance of stable, self-sustaining, and well-distributed 
populations of Mexican spotted owls throughout their range is dependent 
upon habitat quality and its ability to support clusters of 
successfully reproducing owls that are sufficiently integrated to avoid 
or reduce demographic and/or genetic problems through time. Native 
American lands upon which units of critical habitat were designated 
were considered in a hierarchial fashion, first in terms of the quality 
of habitat and size of the cluster of owl territories, then for their 
relationship to surrounding units, and ultimately for their 
contribution to groups of units in larger, regional populations.
    Native American lands occur in four general areas within the range 
of the Mexican spotted owl: the Four Corners Area where the states of 
Arizona, New Mexico, Utah, and Colorado meet; the Mogollon Rim Area 
extending in an arc across Arizona and New Mexico; the Western Basin 
and Range encompassing a small portion of southwestern New Mexico and 
the majority of southern Arizona; and the Eastern Basin and Range of 
central and eastern New Mexico.
    The majority of the Four Corners Area is dominated by Great Basin 
desert scrub, grassland and woodland at lower elevations, and Petran 
montane conifer forests at higher elevations. Riparian vegetation is 
primarily confined to a relatively narrow band along water courses and 
is most apparent along major streams. Owl habitat is found in both 
montane forests and minimally or non-forested canyon habitats.

Navajo Nation

    The habitat of the Mexican spotted owl on lands of the Navajo 
Reservation lie within the Chuska and Carrizo mountains. This region 
has had very limited survey work, and current records are restricted to 
9 locales. The region may be an important demographic link between the 
subpopulations of owls to the east and southeast, and those owl 
clusters in the Colorado Plateau further to the northwest.
    Due to rugged terrain, habitat in much of the forested and non-
forested canyon habitat is expected to be in good condition. The more 
accessible forested areas on the mesas, the above-canyon flats, and 
foothills have had considerable overstory removal and are primarily 
second-growth, particularly on the Defiance Plateau. Even-aged 
silvicultural management across large management units has resulted in 
fairly extensive modifications of habitat (typically to those areas 
most likely to be utilized as foraging habitat).
    Continued adverse modification of forest habitat is the greatest 
threat to habitat occupancy. Thorough application of even-age 
silviculture to large management units may result in extensive areas 
lacking minimal amounts of habitat able to sustain occupancy. 
Demographic persistence and connectivity between the smaller CHUs in 
the area may be hindered by the compounding factors of naturally 
disjunct habitat, the potential decrease in immigrants from larger 
neighboring clusters (AZ-NAIR-1), and the (primarily foraging) forest 
habitat being converted to young/mid-age and even-age/even-structure 
condition. The risk of catastrophic habitat loss due to fire at the 
lower and middle elevations is moderately high.
Critical Habitat Units

AZ-NAIR-1, AZ-NAIR-2, AZ-NAIR-3, AZ-NAIR-4, and AZ-NAIR-5
    The CHUs comprise a chain of forested montane and canyon habitats 
in the Chuska Mountains and the adjacent Carrizo Mountains to the 
north; additionally units are located at the upper reaches of the 
Canyon de Chelly drainage system, and the Defiance Plateau.

Voluntary Tribal Conservation Measures

    The Service is currently working with the Navajo Nation in the 
development of a Habitat Conservation Plan and the tribe and BIA are 
currently working on a 10-year management plan. However, these efforts 
have not yet culminated in planning documents. Although the Navajo 
Nation has not provided information concerning management and/or 
conservation of the Mexican spotted owl on the Reservation, the service 
understands that no timber harvesting will take place until those 
documents and the associated NEPA processes are completed, which is 
estimated to occur in June or July 1996.

Jicarilla Apache Indian Tribe

    The Jicarilla Apache Indian Tribe and the Southern Ute Indian Tribe 
are also located in the Four Corners Area, in close proximity to the 
Santa Fe National Forest, Carson National Forest, and San Juan National 
Forest.
    The region spans a large area at the interface of the Colorado 
Plateau and the Southern Rocky Mountains. Habitat ranges from heavily 
forested canyons and mesas, to rocky canyons with thin conifer/riparian 
stringers. Many of the territories have a high component of pinyon-
juniper woodland in the more xeric areas. Rocky exposures may be an 
important component of owl habitat even at the close proximity to and 
influence of Southern Rocky Mountains. Habitat conditions vary between 
landownership. The habitats in the Southern Ute and the Jicarilla 
Apache Indian Reservations are managed with selective logging methods 
in the ponderosa pine stands, and minimal use is made of the mixed 
conifers that typically occurs on steep slopes. The CHUs on the San 
Juan and Santa Fe National Forests exhibit even-age/size and minimal 
mature overstory structure in most of the accessible, lower elevation 
forest stands. CHUs on the Carson National Forest are not exploited for 
timber, but are heavily roaded and have a high density of oil and gas 
well pads in many areas.
    The region supports a long string of habitat and CHUs, it is 
directly connected by mostly forest and woodland habitat to the Jemez 
Mountains (Santa Fe National Forest) to the south, and less directly 
connected by woodland and grassland to Bureau of Land Management lands 
in Utah and Colorado.
    Continued adverse modification of forest habitat and high levels of 
oil and gas development are the greatest localized threats to 
sustaining or recovering the subpopulation in the region. Demographic 
recovery and connectivity within the region and between this region and 
other critical habitat may be hindered by the compounding factors of 
naturally disjunct habitat, long dispersal distances, and much of the 
inter-CHU forest habitat being in generally young/mid-age and even-age/
even-structure condition. The risk of catastrophic habitat loss due to 
fire is moderately high at lower and middle elevations.

Critical Habitat Units

NM-JAIR-1, NM-JAIR-2, NM-JAIR-3, NM-JAIR-4, and NM-JAIR-5
    The five CHUs within the Jicarilla Apache Indian Reservation run 
north-south along a series of canyon incised mesas, and lie between the 
CHUs in the Santa Fe National Forest to the south and the Colorado-New 
Mexico State line. A parallel north-south series of CHUs in the 
Jicarilla Ranger District of the Carson National Forest lie 5 to 18 
kilometers to the west. The majority of the high-potential breeding 
habitat (steep slope, mixed conifer) receives little or no timber 
management, and the [[Page 29930]] surrounding foraging habitat is 
managed primarily under uneven-age silviculture. The habitat within the 
Jicarilla Apache Indian Reservation has had limited survey to date. 
There are no known owls; however, two historical records exist for the 
Reservation, and territories and records exist for habitat to the north 
in Colorado, in the nearby Jicarilla Ranger District of the Carson 
National Forest, and on the adjacent Archuleta Mesa in NM-BLM-5. NM-
JAIR-1 is contiguous to CO-SUIR-3.

Voluntary Tribal Conservation Measures

    Informal discussions between the Service and the Jicarilla Game and 
Fish Department on owl-related issues were initiated during the data 
collection period for critical habitat development in early summer 
1993. Continued discussions led to a mutual recognition of the 
significant differences between resource management and habitat 
conditions on federally administered lands and Jicarilla Reservation 
lands. These differences afforded an opportunity to address the threats 
identified in the listing proposal through the development of a tribal 
management plan for the owl. Working independently, the Jicarilla Game 
and Fish Department developed a draft ``Conservation Plan for the 
Mexican Spotted Owl on the Jicarilla Apache Reservation, New Mexico'' 
and requested review of the document by the Service at a meeting on 
November 21, 1994. Reviews were conducted and recommendations provided 
by the Service at that meeting and during subsequent telephone 
conversations with representatives of the Tribe. On December 16, 1994, 
the Jicarilla Apache Tribal Council approved the plan and formally 
submitted it to the Service.
    The plan fully incorporates the Service's recommendations for 
management of critical habitat. These recommendations were adopted, in 
part, from the recommended guidelines outlined in the Draft Recovery 
Plan prepared by the Mexican Spotted Owl Recovery Team. In addition, 
the Jicarilla plan has increased protection in ponderosa pine foraging 
habitat above those levels identified in the Draft Recovery Plan.
    Based on the removal of identified threats to the Mexican spotted 
owl and on the commitment of the Jicarilla Apache Tribe to enforce the 
Conservation Plan, the Service has proposed that the lands of the 
Jicarilla Reservation (101,923 acres within 5 critical habitat units) 
be deleted from further consideration for designation.

Southern Ute Indian Tribe
CO-SUIR-1, CO-SUIR-2, and CO-SUIR-3
    The CHUs comprise a series of mesas with incised canyons. The 
habitat ranges from minimally forested canyon stringers to heavily 
forested slopes and mesa-tops. CO-SUIR-1 is contiguous and 
complementary to habitat in CO-SJNF-1; CO-SUIR-2 is contiguous and 
complementary to CO-SJNF-2; and CO-SUIR-3 is contiguous and 
complementary to NM-JAIR-1 and CO-BLM-4. The areas encompassed by the 
CHUs have not been surveyed, and no owls are known on the Reservation; 
however, a current record exists on BLM land (NM-BLM-5) across the 
Colorado-New Mexico State line in contiguous habitat.

Voluntary Tribal Conservation Measures

    The Southern Ute Indian Tribe is engaged in continuing discussions 
with the Service. One of the goals of the discussions has been the 
development of a Memorandum of Understanding to facilitate cooperation 
between the Tribe and the Service. In a letter of April 28, 1995, on 
the proposal to designate critical habitat, the Southern Ute Tribe 
stated that, once a Memorandum of Understanding is in place, it is 
anticipated that cooperative efforts can be undertaken to develop 
mutually acceptable conservation plans for threatened and endangered 
species. At this time, no conservation plan for the Mexican spotted owl 
has been provided by the Tribe to the Service.

San Carlos Apache Indian Reservation

    Owl habitat on the San Carlos Apache Reservation is located 
primarily in the Western Basin and Range province, and a portion of the 
Mogollon Rim area. The province is characterized by numerous mountain 
ranges that rise abruptly from broad plain-like valleys and basins. 
Within southern Arizona the mountain ranges are sometimes referred to 
as the ``Sky Islands'', and include the Mazatzal Mountains and the 
Natanes Plateau on the San Carlos Indian Reservation.
    The isolated mountain ranges are vegetated by Madrean evergreen/oak 
woodland and chaparral, Madrean pine/oak forest, and mixed conifer 
forest; the mountains are surrounded by Sonoran and Chihuahuan desert-
scrub.
    Other CHUs of this region are administered by the Prescott, Tonto, 
Apache-Sitgreaves, and Coronado National Forests. The Army administers 
the lands within Fort Huachuca in the Huachuca Mountains. Although not 
included within critical habitat units, the Saguaro and the Chiricahua 
National Monuments also harbor some owl habitat.
    Forested owl habitat on the San Carlos Apache Indian Reservation is 
predominately inaccessible and is in mostly suitable condition. 
Demographic persistence and connectivity may be hindered by the 
compounding factors of naturally disjunct habitat and the potential 
decrease in immigrants from larger neighboring clusters. The risk of 
catastrophic habitat loss due to wildfire is moderately high throughout 
the region.

Critical Habitat Units

AZ-SCIR-1, AZ-SCIR-2, and AZ-SCIR-3
    The CHUs include fairly rugged forested and canyon habitats. 
Portions are contiguous with and complementary to habitat in AZ-FAIR-1 
and AZ-ASNF-2. The habitat is mostly timber-unsuitable and in suitable 
habitat condition.

Voluntary Tribal Conservation Measures

    Discussions between the Service and the San Carlos Apache Tribe are 
ongoing but have not yet resulted in the formulation of a conservation 
plan. Although there is good forested habitat on the reservation, much 
is inaccessible to timber harvest.

Mescalero Apache Indian Tribe

    The Mescalero Indian Reservation encompasses a portion of the 
Sacramento Mountains, within the Eastern Basin and Range province that 
includes much of central and eastern New Mexico. The area is 
characterized by broad, flat basins and relatively isolated mountain 
ranges. The province includes the Manzano, San Andres, Sacramento, and 
Guadalupe mountains. The vegetation in the majority of this province is 
Chihuahuan desert scrub and Great Basin grasslands, with Great Basin 
woodland and Petran montane conifer forest at higher elevations. The 
Mescalero Indian Reservation borders sections of the Lincoln National 
Forest and includes a large area of critical habitat.
    Forest habitat within the majority of the Sacramento Mountains had 
been railroad logged in the early part of the century. The high site 
productivity of the montane forests allowed for rapid regeneration of 
much of the owl habitat within 70 to 90 years. Currently, the majority 
of habitat is in suitable breeding and foraging condition. Habitat on 
the Mescalero Apache Indian Reservation is managed primarily under an 
uneven-age (selective) silviculture system. In general, most habitat on 
the [[Page 29931]] Reservation appears in suitable breeding habitat 
condition. In some areas, however, the widely applied uneven-age 
harvest methods appear to have resulted in homogenous stand conditions 
across the forested landscape. Large areas appear ``thinned'' and show 
little structural variance between stands. Stands may retain adequate 
structure and remain suitable for foraging, and be able to return 
rapidly to a suitable nesting condition, but at any one time, the lack 
of any significant amount of suitable nesting habitat may result in 
large areas subject to intermittent owl occupancy and unable to support 
breeding pairs.
    The Sacramento Mountains support one of the largest owl clusters in 
the Southwest. Currently, there are 123 established territories on the 
Lincoln National Forest. There very limited available data on 
population size or owl occupancy for the Mescalero Apache Indian 
Reservation; however, the proximity of the Reservation lands to the 
Lincoln National Forest would lend support to the expectation of a 
significant number of territories (approximately 100) on the 
Reservation. Applying to this figure the average occupancy rates from 
the Lincoln National Forest gives an estimate of about 58 territories 
occupied by pairs, 21 territories occupied by single adults, and 21 
unoccupied territories. This figure may be an overestimate, as 
occupancy rates are expected to be somewhat lower for the habitat 
patches at the northern end of the range (NM-LINF-1, NM-LINF-2, NM-
LINF-3, and NM-LINF-4) due to disjunct habitat patches, small patch 
size, and relatively greater inter-habitat distances, and perhaps 
poorer habitat quality.
    Continued adverse modification of forest habitat is the greatest 
threat to habitat occupancy. The area may also play an important role 
in source/sink dynamics with neighboring clusters. Diminished emigrant 
rates from the Sacramento Mountains may threaten the viability of the 
smaller, proximate clusters. The risk of catastrophic habitat loss due 
to fire at the lower and middle elevations is moderately high.

Critical Habitat Unit
NM-MAIR-1
    The CHU is a large block of habitat comprising most of the northern 
half of the Sacramento Mountains. It is contiguous to NM-LINF-10 to the 
south, and NM-LINF-8, NM-LINF-6, and the White Mountain Wilderness to 
the north. There are no available data on owl occupancy; however, 
extrapolation of occupied habitat patterns to the north and south of 
the Reservation permits an estimate of about 100 territories for the 
CHU.

Voluntary Tribal Conservation Measures

    The Service has met with representatives of the Tribe to discuss 
conservation planning for the Mexican spotted owl. The Mescalero Apache 
Tribe provided a rough draft (without biological or management details) 
of a conservation plan on May 3, 1995, for review by the Service. 
However, insufficient time remained in the comment period on the 
proposed designation of critical habitat to discuss Service 
recommendations for the document with the Mescalero Apache Tribe.

Delineation Criteria Applied to Indian Lands

    Over and above the biological criteria used to delineate all areas, 
regardless of ownership, to be included in the proposal to designate 
critical habitat for the Mexican spotted owl, the Service also 
addressed the following considerations in determining to either retain 
or delete Native American lands in the final designation.
    The restrictions are reasonable and necessary for the conservation 
of the Mexican spotted owl; and are the least restrictive available to 
achieve the conservation purpose.
    The inclusion of Indian lands within critical habitat units was 
based solely on biology and the contribution of those lands to the 
conservation of the species. Where determined to be unnecessary, as 
with the removal of threats to the owl by the implementation of 
conservation plans by the White Mountain and Jicarilla Apache Tribes, 
the lands were either not proposed, or have been deleted from the final 
designation.
    The interdependence of critical habitat and the recovery goals and 
management recommendations in the draft Mexican Spotted Owl Recovery 
Plan also present reasonable and necessary restrictions for the 
conservation of the species. The Mexican Spotted Owl Recovery Team has 
assembled and analyzed the best available data on the species, which 
were issued in the March 1995 publication of the Draft Recovery Plan. 
The goals are flexible and the guidelines for owl habitat management 
are considered the least restrictive for achieving recovery. The 
guidelines primarily limit management to protection of occupied sites 
and the highest quality nest/roost habitat. These are the minimum 
needed to ensure stable populations for the time necessary to assess 
population trends.
    The restrictions do not discriminate against Indian activities.
    The restrictions of critical habitat derive from the obligation, 
under the Endangered Species Act, of Federal agencies to ensure that 
their actions do not result in the destruction or adverse modification 
of critical habitat. The identified range-wide threat to the Mexican 
spotted owl is timber management relying on harvest methodologies that 
convert habitat that supports Mexican spotted owl to habitat that 
cannot. There is no prohibition of timber activities, nor of any other 
activity upon which the Indian Tribes might rely.
    The Mexican Spotted Owl Recovery Team has a representative selected 
by the Tribal land management agencies. In addition, the Recovery Team 
frequently communicated with and solicited information from the Tribal 
land management agencies and governments. Tribal input was actively 
sought and received throughout the process.
    The selection of Tribal lands for critical habitat was based on the 
biological significance of the contribution of those lands to the 
conservation of the Mexican spotted owl. The threats and the 
opportunities for recovery were considered on a range-wide basis and 
were not identified to discriminate or favor particular land owners.
    The restrictions are necessary because current voluntary tribal 
conservation measures are not adequate to achieve the conservation 
purpose.
    The proposed rule to designate critical habitat stated that ``If 
agreements can be reached (with the Tribes) and implementation ensured 
so that special protection is not necessary, the Service may consider 
excluding those areas from critical habitat.'' Conservation or 
management plans have been developed by the Jicarilla Apache and the 
White Mountain Apache tribes that meet these conservation objectives. 
Discussions are ongoing with several other tribes to develop 
conservation plans. However, at this time, implementation of those 
remaining plans under discussion is not ensured, and there are no final 
commitments that insure that owl populations and habitat will be 
managed to contribute to the survival and recovery of the species.

Consideration of Exclusions

    Based on the analysis described above, the Service has considered 
whether the benefits of excluding any area proposed as critical habitat 
exceed the benefits of including it in the final designation. In 
particular, the areas proposed for potential exclusion in the 
[[Page 29932]] March 8, 1995, supplemental proposal have been 
considered for exclusion. At that time, lands of the Navajo Nation, and 
the Southern Ute, Mescalero Apache, and San Carlos Apache Tribes were 
proposed for exclusion under section 4(b)(2) of the Act contingent upon 
receipt and review by the Service of specific economic information 
pertinent to these lands and biological data concerning the presence, 
distribution, and habitat use of owls on these lands.
    As described above, the data concerning the lands proposed for 
exclusion are presently inconclusive, and at this time do not provide 
an adequate basis upon which to exclude them from designation as 
critical habitat. Consequently, they have been retained within the 
critical habitat designated in this final rule. The Service will 
continue to provide technical assistance to the Tribes to develop an 
adequate database upon which to determine whether the benefits of their 
exclusion would exceed the benefits of including them in the 
designation.
    The March 8 supplemental proposal also proposed to exclude lands of 
the Jicarilla Apache Tribe from final designation, not under section 
4(b)(2) of the Act, but because that Tribe's Mexican Spotted Owl 
Conservation Plan, approved by the Jicarilla Apache Tribal Council, 
adequately addressed the conservation needs of the species and rendered 
these lands no longer in need of special management consideration or 
protection as specified in the Act's definition of critical habitat. 
The Service continues to consider the existing management of lands of 
the Jicarilla Apache Tribe to disqualify them from designation as 
critical habitat, and consequently critical habitat units NM-JAIR-1, 
NM-JAIR-2, NM-JAIR-3, NM-JAIR-4, and NM-JAIR-5 have been excluded from 
the final designation on these grounds.
    The Service will continue to provide assistance to and cooperate 
with the other tribes on whose land critical habitat is being 
designated, with the goal of developing acceptable Mexican spotted owl 
conservation plans. When effective management regimes are developed for 
these lands as was done for those on the White Mountain Apache and 
Jicarilla Apache lands, the Service will propose revision of critical 
habitat to remove them from designation.
    The final rule includes several revisions to the acreage indicated 
in the proposed rule. The change in the Forest Service acreage reflects 
a correction to an error in acreage accounting. The changes to BLM, 
Tribal, and private acres reflects a change in ownership for an area 
initially incorporated into critical habitat on the Jicarilla Apache 
Indian Reservation and subsequently removed from the final designation. 
The revisions are tabulated below in Table 4.

    Table 4.--Revisions to Critical Habitat Acreage by Land Ownership   
------------------------------------------------------------------------
                           Proposed rule      Final rule      Revision  
------------------------------------------------------------------------
Forest Service..........        3,616,366      a 3,581,385       -34,981
Bureau of Land                                                          
 Management.............           11,424           11,377           -47
National Park Service...           45,892           45,892             0
Department of Defense...            2,013            2,013             0
State...................            9,820            9,820             0
Tribal..................          962,694        b 870,964       -91,730
Private.................          122,014        b 111,450       -10,564
                         -----------------------------------------------
      Total.............        4,770,223    a b 4,632,901      -137,322
------------------------------------------------------------------------
a Includes a correction to acreages cited in the proposed rule.         
b Includes changes to ownership and deletion of Jicarilla Apache        
  acreages cited in the proposed rule.                                  

Available Conservation Measures

Recovery Planning

    Recovery planning under Section 4(f) of the Act provides the 
guidance for the Act's activities and promotes a species' conservation 
and eventual delisting. Section 4(f)(1) requires the Secretary of 
Interior (usually delegated to the Director of the Service) to ``* * * 
develop and implement (recovery) plans for the conservation of 
endangered species and threatened species * * *'' Recovery plans may 
include population and habitat trend objectives, habitat management 
recommendations, and the steps necessary to remove a species from the 
List of Threatened and Endangered Wildlife and Plants.
    The Service appointed the Mexican Spotted Owl Recovery Team (Team) 
in March 1993. Since that time, the Team has assembled all available 
data on Mexican spotted owl biology, the threats faced across the 
subspecies' range, current protection afforded the subspecies, and 
other pertinent information. Using that information, the Team developed 
the draft Mexican Spotted Owl Recovery Plan (Service 1995)(Plan or 
Recovery Plan) that outlines an initial short-term management strategy. 
If made final, the Plan will guide management until long-term 
guidelines are developed prior to delisting. The Plan recommends a 
short-term landscape management strategy to conserve the subspecies as 
population and habitat trends are assessed. Although a recovery plan is 
not a regulatory document, management recommendations outlined in the 
Plan are considered for application to critical habitat. The Forest 
Service Southwest Region has informally communicated its intent to 
incorporate the Plan's recommendations into all 11 national forests' 
Forest Land and Resource Management Plans (Forest Plans).

Section 7  Consultation

    Section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to destroy or 
adversely modify critical habitat. Regulations found at 50 CFR 402.02 
define destruction or adverse modification of critical habitat as a 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
that adversely modify any of those physical or biological features that 
were the basis for determining the habitat to be critical. This Federal 
responsibility accompanies, and is in addition to, the requirement in 
section 7(a)(2) of the Act that Federal agencies ensure their actions 
do not jeopardize the continued existence of any listed species. As 
required by 50 CFR 402.14, a Federal agency must consult with the 
Service if it determines an action may affect a listed species or 
critical habitat. Thus, the requirement to consider adverse 
modification of critical habitat is an incremental section 7 
consideration above and beyond section [[Page 29933]] 7 review to 
evaluate jeopardy and incidental take of the species. Regulations 
implementing this interagency cooperation provision of the Act are 
found at 50 CFR part 402.
    The Act's definition of critical habitat indicates that its purpose 
is to contribute to a species' conservation, which by definition is the 
process of bringing a species to the point of recovery and removal from 
the lists of endangered an threatened species. Section 7 prohibitions 
against the destruction or adverse modification of critical habitat 
apply to actions that would impair survival and recovery of a listed 
species, thus providing a regulatory means of ensuring that Federal 
actions within critical habitat are considered in relation to the goals 
and recommendations of a recovery plan. As a result of the direct link 
between critical habitat and recovery, the prohibition against 
destruction or adverse modification of the critical habitat should 
provide for the protection of the critical habitat's ability to 
contribute fully to a species' recovery.
    A number of Federal agencies or departments fund, authorize, or 
carry out actions that may affect lands the Service is designating as 
critical habitat. Among these agencies are the Forest Service, BIA, 
BLM, Department of Defense, Bureau of Mines, and Federal Highway 
Administration. The Service has identified numerous activities proposed 
within the range of the Mexican spotted owl that are currently the 
subject of formal or informal section 7 consultations.
Examples of Proposed Actions

    Section 4(b)(8) of the Act requires, for any proposed or final 
regulation to designate critical habitat, a brief description of those 
activities (public or private) that may adversely modify such habitat 
or may be affected by such designation. Activities that would have no 
effect on the critical habitat's primary constituent elements would not 
adversely affect critical habitat. However, although an action may not 
adversely affect critical habitat, it may still affect individual 
spotted owls (e.g., through disturbance) and, therefore, be subject to 
consultation under the jeopardy standard of section 7 of the Act.
    An activity cannot cause adverse modification of critical habitat 
in an area that does not contain or have the potential to contain the 
physical and biological features comprising the primary constituent 
elements. Due to the limitations in the fineness of the mapping data 
and the interspersed nature of suitable and unsuitable habitat types, 
some such areas are incidentally included in the designation.
    Activities that disturb or remove the primary constituent elements 
within designated critical habitat units may adversely modify the owl's 
critical habitat. These activities may include actions that reduce the 
canopy closure of a forest stand, reduce the density or the average 
diameter of the trees in a stand, modify the multi-layered structure of 
a stand, reduce the availability of nesting structures and sites, 
reduce regeneration or modify the structure of riparian habitat, reduce 
the suitability of the landscape to provide adequate cover, or reduce 
the abundance or availability of prey species.
    Areas designated as critical habitat for the spotted owl support a 
number of existing and proposed commercial and noncommercial 
activities. Some of the commercial activities that may affect spotted 
owl critical habitat include timber harvest, timber salvage, tree 
density control activities such as thinning, insect and disease 
suppression activities, snag removal, livestock grazing in riparian 
habitat, certain fire suppression activities such as fire break 
construction and use of chemical fire retardants. Additional actions 
include land disturbance activities such as those associated with oil 
and gas leases, sand and gravel extraction, mining, military maneuvers, 
road development, construction of hydroelectric facilities, geothermal 
development, and construction of campgrounds, ski areas and associated 
facilities. However, whether the above activities would be prohibited 
or require modification under section 7(a) of the Act would depend on 
their magnitude of effects.
    Actions not likely to destroy or adversely modify critical habitat 
include livestock grazing in upland habitats, ``personal use'' 
commodity production such as fuelwood, latilla and viga, and Christmas 
tree cutting, and most recreational activities including hiking, 
camping, fishing, hunting, cross-country skiing, off-road vehicle use, 
and various activities associated with nature appreciation. The Service 
does not expect any restrictions to those activities as a result of 
critical habitat designation.
    Some activities may be considered to be of benefit to Mexican 
spotted owl habitat and, therefore, would not be expected to adversely 
modify critical habitat. Examples of activities that could benefit 
critical habitat may include some protective measures such as fire 
suppression, prescribed burning, brush control, snag creation, and 
certain silvicultural activities such as thinning.

Consultation Process

    Federal agencies are responsible for determining the effects of an 
action and whether or not to consult with the Service. When requested, 
the Service will review the action agency's determination on a case-by-
case basis to determine concurrence on whether the action is or is not 
likely to adversely affect critical habitat. Section 7 consultation on 
critical habitat focuses on the effects of actions on owl habitat 
regardless of occupancy. The presence or absence of individual or pairs 
of spotted owls does not factor into the determination on whether an 
action does or does not initiate section 7 consultation on effects to 
critical habitat. The trigger initiating consultation on critical 
habitat is the action agency's determination that a project may affect 
any of the primary constituent elements of critical habitat or reduce 
the potential of critical habitat to develop these elements, and is 
independent from any action that would affect known individuals. 
Federal project assessments should also take into consideration actions 
outside critical habitat that may affect areas within critical habitat.
    In section 7 evaluation of proposed activities within critical 
habitat, the Service uses project descriptions and biological 
assessments provided by the action agency. Proposed actions are 
individually examined in terms of site-specific impacts to the primary 
constituent elements and the reasons for which the critical habitat 
unit has been designated. In addition to assessment of individual 
proposed actions, the Service also considers the additive effects of 
past, on-going, and proposed actions. Proposed projects within critical 
habitat are also examined spatially to determine adverse effects to 
habitat across the surrounding landscape. The additive effects of 
actions in proximity to the proposed project may collectively result in 
the appreciable reduction of the value of a critical habitat unit. 
Conversely, an isolated proposed action within a large expanse of 
unmodified habitat may not adversely affect the function for which a 
critical habitat unit was designed.
    The range of the owl is subdivided into a number of provincial 
areas discussed in the Recovery Unit (RU) section of the draft Recovery 
Plan (Service 1995), which constitute the demographic units by which 
recovery is to be measured. These geographic subdivisions are based 
partly on physiographic and biotic factors, and patterns of owl 
distribution. The provinces and local sub-populations of owls are for 
the most part interrelated [[Page 29934]] and interconnected. 
Provinces, subprovinces, and individual critical habitat units are all 
part of a habitat network important to maintaining a stable and well-
distributed population over the range of the owl. The loss of one or 
more provinces, or even a major part of a province, could lead to 
genetic and demographic isolation of parts of the subspecies' range. 
Potential isolation could have a greater near-term effect on some areas 
(e.g., the Southern Rocky Mountains--New Mexico and Colorado RU) 
because of the present status of owl numbers and distribution within 
those areas, than on other areas (e.g., Upper Gila Mountain RU). 
Population stability for the owl may depend on the relative location of 
large stable population reserves that act as sources for areas where 
mortality exceeds recruitment, or where owls are subject to population 
fluctuation, or exhibit low reproductive success (Thomas et al. 1990; 
Service 1995).
    For a wide-ranging subspecies such as the Mexican spotted owl, 
where multiple critical habitat units are designated, each unit has 
both a local, regional, and rangewide role in contributing to the 
conservation of the subspecies. The loss of a single unit may not 
jeopardize the continued existence of the subspecies, but may result in 
local demographic instability and declines in local population trends. 
This may affect dispersal and connectivity, and thus, have a 
detrimental effect on the stability of the regional population or at 
the least on that portion of the region's population where the loss 
occurred. This, in turn, may have an adverse effect on linkage to other 
provinces leading to further isolation and instability, and reduce the 
likelihood of survival of the subspecies. Section 7 analysis of 
proposed activities should assess the baseline condition and expected 
role of the unit at several scales to determine whether any particular 
action would appreciably diminish the value of a critical habitat unit 
for the survival and recovery of the owl. These scales should include 
the management area and immediate surroundings, and the individual 
critical habitat unit and collective units that constitute a recovery 
unit.
Reasonable and Prudent Alternatives and Conservation Recommendations

    Where a proposed action is likely to result in the destruction or 
adverse modification of critical habitat, the Service is required to 
provide reasonable and prudent alternatives to the proposed action, if 
any, in its biological opinion. Reasonable and prudent alternatives are 
designed to allow the intended purpose of the proposed action to go 
forward, and to remove or mitigate the conditions that would adversely 
modify critical habitat. The Service recommends that an action agency 
initiate discussions early enough in the planning process to reduce the 
likelihood that an action may result in the destruction or adverse 
modification of critical habitat, and to ensure that the planning 
process is not to the point where the development of alternatives is 
infeasible. Reviewing widespread and long-term actions such as timber 
sale and forest health programs on a programmatic basis would 
facilitate this process.
    For actions that result in adverse effects but do not result in the 
destruction or adverse modification of critical habitat, the Service 
may provide discretionary conservation recommendations to minimize or 
avoid the adverse effects of a proposed action. The Service may suggest 
minor modifications to a proposed action that results in moderate 
impacts to critical habitat. For projects that may result in more 
severe impacts, more substantial project changes may be recommended. 
For example, in the case of a timber sale, the Service may recommend 
that certain cutting units be reduced in size, reconfigured, relocated, 
or dropped altogether to avoid impacts to primary constituent elements. 
The Service may also recommend alternate timber harvest prescriptions, 
or that specific features such as a minimum of large diameter live 
trees be retained for snag recruitment.

Other Conservation Measures

    To the maximum extent possible, state and private lands were 
excluded from the delineation and designation of critical habitat. If 
an action carried out by a non-Federal entity affects spotted owls, 
that action would be subject to the prohibitions under section 9 of the 
Act, that prohibit intentional and non-intentional ``take'' of listed 
species and applies regardless of whether or not the lands are within 
critical habitat. The term ``take'', as defined by the Act, means to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct.
    There may be some instances where activities on non-Federal lands 
may be subject to section 7 requirements. For example, a private party 
may require a right-of-way permit through critical habitat on Federal 
lands for an action on private lands. In this type of case a section 7 
consultation may be required on the Federal land right-of-way permit 
because the action requires Federal involvement. The Service does not 
expect that there will be many of these types of situations and most 
may be handled through informal consultation. However, if a biological 
opinion is required, recommendations will be provided to help avoid 
impacts to critical habitat consistent with those examples identified 
in the previous section.
    Frequently actions taken on Indian lands are authorized, funded or 
carried out by a federal agency. In those circumstances, that federal 
agency, which is frequently the Bureau of Indian Affairs, is required 
to consult under section 7 to insure that the action does not 
jeopardize a protected species or adversely modify or destroy critical 
habitat. However, a number of Tribes (and federal agencies as well) 
have begun working with the Service early in their resource management 
planning stage to insure that the plan builds in protections for listed 
and candidate species and their protected habitat. Although section 7 
consultations may still be necessary, sound resource development/
conservation plans minimize the need for additional mitigation 
measures.
    Section 7 and section 10(a)(1)(B) authorize the Service to permit 
the taking of listed species incidental to otherwise lawful activities 
such as timber harvesting. Biological opinions completed as part of 
formal section 7 consultation may authorize a set amount of incidental 
take associated with Federal activities. For non-Federal actions, 
incidental take permit applications must be supported by a Habitat 
Conservation Plan (HCP) that identifies conservation measures that the 
permittee agrees to implement to conserve the species, usually on the 
permittee's lands. A key element of the Service's review of an HCP is a 
determination of the plan's effect upon the long-term conservation of 
the species. An HCP would be approved and a section 10(a) permit issued 
if it would minimize and mitigate the impacts of the taking and would 
not appreciably reduce the likelihood of the survival and recovery of 
that species in the wild.
    The Service expects limited Federal involvement for projects on 
state lands and, therefore, few formal section 7 consultations on state 
lands that are included in designated critical habitat. For those areas 
of private land within critical habitat, section 7 would apply only for 
actions that are funded, authorized, or carried out by a Federal 
agency. The states and private individuals are still subject to the 
``take'' prohibitions under section 9 of the Act, 
[[Page 29935]] however, and may enter into the section 10 HCP process 
where appropriate.
    Other Federal laws, such as the National Forest Management Act, the 
Federal Land and Policy Management Act, the National Environmental 
Policy Act, and various other state and Federal laws and regulations, 
also require the conservation of endangered and threatened species.

Summary of Comments

    The final rule listing the Mexican spotted owl as threatened was 
published in the Federal Register on March 16, 1993 and announcements 
of the listing and availability of the final rule were mailed to 
Federal, Tribal, state, county, and local agencies and governments, and 
all interested parties on the Service mailing list. The rule announced 
that the Service had concluded that designation of critical habitat was 
prudent, but found that critical habitat was not presently 
determinable, and was initiating the gathering of information and the 
studies needed to ascertain critical habitat areas. Based on the 
information received, the Service issued the proposal rule to designate 
critical habitat on December 7, 1994. The proposed rule was sent to 
affected Federal, Tribal, state, county, and local agencies and 
governments, and notices of the availability of the rule was sent to 
all interested parties on the Service's mailing list. Public notices of 
the proposal for publication as legal notices were also sent to 18 
newspapers throughout the four-state region on December 5, 1994. The 
general mailing and newspaper notices requested data and comments from 
the government and public on all aspects of the proposal, including 
data on the economic impacts of the designation. The notice also 
announced a 90-day comment period open until March 7, 1995. On December 
19, 1994, the Service sent a request for information on the potential 
economic impacts of designating critical habitat to 13 Federal, 12 
Tribal, and 10 state agencies, and 4 Governor's and 42 county 
government offices. A Draft Economic Analysis (DEA) was prepared based 
on the information received and a notice of the availability of that 
draft was published in the Federal Register on March 8, 1995 (60 FR 
12728; 60 FR 12730). The publication also proposed several revisions to 
the original proposal, solicited additional information and comments, 
opened an additional 60-day comment period extending to May 8, 1995, 
and announced the schedule and location of public hearings. More than 
700 parties on the Service's mailing list also received an announcement 
of the above subjects. On February 23, 1995, the Service also sent for 
publication as legal notices in 36 regional newspapers, an announcement 
of the availability of the DEA, solicitation for additional information 
and comments, the opening of the additional comment period, and the 
schedule and location of public hearings.
    Because of anticipated widespread public interest, the Service held 
4 public hearings. Approximately 532 people attended the hearings. 
About 23 people attended the hearing in Santa Fe, New Mexico; 138 in 
Socorro, New Mexico; 46 in Tucson, Arizona; and 325 in Flagstaff, 
Arizona. Transcripts of these hearings are available for inspection by 
appointment (see ADDRESSES).
    A total of 844 written comments were received at the Service's 
Ecological Services State Office in Albuquerque, New Mexico: 25 
supported the proposed listing; 249 opposed the proposed listing; 9 
either commented on information in the proposed rule but expressed 
neither support nor opposition, provided additional information only, 
or were non-substantive or irrelevant to the proposed listing; and 561 
form letters expressed opposition to the designation. Oral or written 
comments were received from 158 parties at the hearings: 10 supported 
the proposed listing, 146 opposed the proposed listing, and 2 expressed 
neither support nor opposition.
    In total, oral or written comments were received from 29 Federal, 
Tribal, and state agencies and offices; 31 local government offices; 
and 172 private organizations, universities, companies, and 
individuals. All comments, both oral and written, received during the 
comment period are addressed in the following summary. Comments of a 
similar nature are grouped into a number of general issues. These 
issues and the Service's response to each, are discussed below. Issues 
that were addressed in the final rule to list and the petition findings 
to remove the owl from the list of threatened species have not been 
reiterated and may be found in those Federal Register publications.

General Issues

    Issue 1: The Service has characterized owl nesting and roosting 
habitat as having a high incidence of large trees with various 
deformities but has not quantified these attributes. In addition, the 
term old-growth is not properly used or defined when describing owl 
habitat and does not correspond to the definition used by the Forest 
Service. These inaccuracies preclude the inclusion of this habitat in 
critical habitat.
    Service Response: The owl uses a variety of forest types, including 
deciduous riparian woodlands, pinyon-juniper, pine-oak, mixed conifer, 
and spruce-fir. The features and proportion of habitat serving the 
various life history needs of the owl also vary throughout the range of 
the subspecies and upon vegetation type. However, forested habitat used 
for nesting and roosting often contains mature or old-growth stands 
with complex structure (Skaggs and Raitt 1988; Ganey and Balda 1989a, 
1989b; Kroel and Zwank 1991; Service 1995 and other references 
therein). The characteristics typically include a significant component 
of mature trees, high basal area, high canopy closure, multi-storied 
forest structure, and abundant dead and down woody material.
    The commenter is correct in noting that old-growth definitions are 
often not quantified when used and may vary among both agencies and 
individuals using the term. However, the Service's use of the term has 
been limited to noting the incidence of specific attributes in mature 
and old-growth habitat, and summarizing the conclusions reached by 
studies that may use the term. Quantification of these attributes is 
not necessary for qualitative or summary descriptions of owl habitat, 
and detailed definitions and methodology may be found in the original 
literature source. Features such as large diameter trees, multi-layered 
canopy, and snags, may be found in any of numerous definitions of 
mature and old-growth conditions. Furthermore, the identification of 
owl habitat areas considered for inclusion in critical habitat did not 
depend on the identification of old-growth. Identification of habitat 
was based primarily on the owl habitat information provided by land-
managing agencies to the Service.
    Issue 2: Some commenters stated that pure ponderosa pine vegetative 
types are not suitable habitat for nesting and roosting, and should 
therefore not be included within critical habitat. Others believe that 
ponderosa pine is a habitat type used by the owl and should be included 
in critical habitat.
    Service Response: Ponderosa pine is found in numerous vegetative 
associations. The Service does not consider ponderosa pine associations 
where other coniferous tree species such as Douglas fir and hardwoods 
such as Gambel oak are not found or exist as minor accidental 
occurrences to be habitat suitable for nesting and roosting. However, 
relatively pure ponderosa [[Page 29936]] pine associations may be used 
for foraging where they are found in proximity to other vegetative 
associations that do support nesting and roosting activity. Where 
ponderosa pine exists as a codominant with other tree species, the 
habitat may support the combined nesting, roosting, and foraging needs 
of territorial owls. The inclusion of ponderosa pine habitat types 
within critical habitat was determined by its presence in known owl 
territories and proximity to other nest/roost habitat. It also may 
occur as inclusions and intervening stretches between other habitat 
types. However, extensive areas of pure ponderosa pine were generally 
not included in critical habitat. Where these areas do occur and have 
no potential for use by foraging owls, they may be considered lacking 
primary constituent elements and be managed as unsuitable habitat.
    Issue 3: The Service's premise that foraging areas may be 
determined by their proximity to areas serving as nest/roost habitat is 
unsubstantiated.
    Service Response: Many of the habitat components that serve the 
nesting and roosting needs of individual owls are more restrictive and 
less widespread than those found in areas used solely for foraging 
activity, and are likely to be a limiting factor in determining owl 
presence and habitat use. In most cases, known territories determined 
the areas for inclusion in critical habitat. Where unsurveyed habitat 
or areas with low owl densities were considered, the Service identified 
areas of ``suitable'' or nest/roost habitat as essential ``nuclei'' for 
the delineation of habitat that may support the territorial needs of 
owls. Activity centers are areas within which owls find nest and roost 
sites, and in which a significant amount of foraging activity occurs 
(Gutierrez et al. 1992; Service 1995). Owls appear to concentrate 
foraging activity within a relatively small portion of the home range, 
and this activity center is typically located around nest or roost 
sites. Foraging habitat can only be used by territorial owls if it lies 
within the effective radius of an owl home range. Therefore, it is 
reasonable to assume that, adjacent to habitat determined by land 
managing agencies to be suitable for nesting and roosting, may be areas 
available for foraging activity. Examination of territories delineated 
by land-managing agency biologists on the basis of detection locations 
supports this conclusion.
    Issue 4: Owls may disperse in a wide variety of habitats. The 
inclusion in critical habitat of areas for facilitating dispersal is 
not justified.
    Service Response: There is little information available on the 
dispersal behavior of the Mexican spotted owl. Consequently, it is not 
possible to describe any primary constituent elements or manage for the 
habitat attributes necessary to support this behavior. The Service did 
not select for inclusion in critical habitat any areas capable only of 
supporting dispersal movements. This type of habitat may be found only 
as inclusions and intervening stretches within larger areas identified 
with the potential to support owl territories.
    Issue 5: The term ``capable habitat'' is not defined or supported 
by research, and should be excluded from critical habitat.
    Service Response: The term ``capable'' is used in the proposed rule 
in the following context: ``* * * capable of returning to suitable 
condition * * *'' It is a term used by other land-managing agencies and 
in the geographic information provided to the Service. The Service 
acknowledges the qualitative nature of the term.
    Issue 6: Total critical habitat acreage is greater than prior 
estimates of suitable owl habitat. Critical habitat contains much 
unsuitable habitat that should be excluded from the designation. Lands 
that are not occupied by the Mexican spotted owl and/or do not exhibit 
the physical and biological features essential to the owl should not be 
included in critical habitat. Potential habitat should not be included 
in critical habitat.
    Service Response: Owl habitat includes a wide variety of vegetative 
and topographic features, and is fairly heterogeneous at both landscape 
and home-range scales. Habitat characterized by land-managing agencies 
as ``suitable'' is defined as areas able to support the combined 
nesting, roosting, and foraging needs of the subspecies. Suitable 
habitat occurs in a matrix of habitat suitable only for less 
restrictive behavioral needs such as foraging and dispersal, and may 
itself have inclusions and intervening stretches of unsuitable habitat. 
Based on previous land-managment agency estimates, there exists a wide 
range in the proportion of suitable habitat within owl home ranges. 
Frequently, the proportion of suitable to other habitat types may 
comprise half of a home range area. In canyon habitat characterized by 
minimal forest cover, the vegetative types classed as suitable may 
comprise a small fraction of the total area within a home range. 
Therefore, suitable and unsuitable habitat may occur in a combined area 
two to several times as large as the 2 to 4 million acres of suitable 
habitat cited by various agencies and Service estimates. Areas lacking 
or without the potential to regain primary constituent elements may be 
considered and managed as unsuitable habitat.
    The use of the term ``potential'' in the proposed rule refers to 
the capability of a site that has undergone past habitat modification 
to return to a condition in which it may become owl habitat again. It 
does not refer specifically to any successional processes or management 
objectives to create owl habitat where none existed before. It also 
does not refer to uncertainty in whether an area actually serves as 
habitat.
    Issue 7: The Service used data provided by the USFS Southern Forest 
Experiment Station (SFES) to determine the vegetation type of each 
proposed critical habitat unit. These data show that about 95% of the 
land included in critical habitat are not forest types the Service 
considers to be critical.
    Service Response: The data compiled for the identification of areas 
to be included in critical habitat came from many disparate sources and 
land-managing agencies. None of the data used by the Service came 
directly from SFES, although some agencies may have derived some or all 
of their data from this source, and in turn have provided it to the 
Service. The ``95%'' figure cited from Table A3 of the Draft Economic 
Analysis does represent land cover summaries derived exclusively from 
SFES data. Further analysis of this data set showed that it used 
vegetative classifications that did not readily identify other 
vegetative associations and did not represent complete floristic 
compositions. Therefore, the ponderosa pine class in the SFES data set 
frequently includes other coniferous and hardwood tree species that 
under other classifications may be considered pine-oak or mixed 
conifer. Analysis of critical habitat using a more detailed data set 
provided a more accurate representation of vegetative associations 
within critical habitat. Table 5 below shows vegetative associations 
derived from U.S. Geological Survey land coverage (figures reflect 
revised acreages). As discussed previously, vegetative associations 
such as mixed conifer or pine-oak that support the combined nesting, 
roosting, and foraging needs (``suitable'') of the owl comprise only a 
portion of the total habitat utilized, and may occur within unsuitable 
habitat or habitat used only for foraging. Furthermore, within owl 
habitat there are inclusions of less frequently or non-utilized areas. 
These factors combine to limit the relative [[Page 29937]] proportion 
of critical habitat that comprises nest/roost habitat.

                          Table 5.--Vegetation Land Cover in Critical Habitat by State                          
----------------------------------------------------------------------------------------------------------------
                                                                                                        Percent 
             Land cover                 Arizona      Colorado    New Mexico      Utah        Total       total  
----------------------------------------------------------------------------------------------------------------
Agriculture.........................       31,736          351       44,998       33,023      110,108        2.4
Alpine..............................  ...........  ...........          285  ...........          285       <0.1
Chaparral...........................       82,508  ...........       70,938       14,657      168,103        3.6
Grassland...........................        4,461  ...........          251  ...........        4,712        0.1
Madrean Woodland....................       65,702  ...........       64,465  ...........      130,167        2.8
Mixed Conifer.......................      505,688       67,255    1,103,408       53,759    1,730,110       37.3
Pine-Oak............................       81,352          494       29,931        1,589      113,366        2.4
Pinyon-Juniper......................      269,494       22,463      383,516       59,696      735,169       15.9
Ponderosa Pine......................      899,560       13,541      641,945       18,694    1,573,740       34.0
Shrub Steppe........................       50,862  ...........        7,688        7,603       66,613        1.4
Water...............................          247  ...........          741  ...........          988       <0.1
                                     ---------------------------------------------------------------------------
    Total...........................    1,991,610      104,104    2,348,166      189,021    4,632,901        100
                                     ---------------------------------------------------------------------------
    Percent total...................         43.0          2.2         50.7          4.1          100  .........
----------------------------------------------------------------------------------------------------------------
Source: National Biological Service, Midcontinent Ecological Science Center.                                    

    Issue 8: The Service has not surveyed or determined that critical 
habitat possesses any or all of the components of suitable habitat. The 
macroanalysis of aerial photography and forest type maps is inadequate 
to distinguish the elements that the Service claims comprise suitable 
owl habitat.
    Service Response: The Service relied primarily on map 
identification of owl habitat and occupancy provided by the land-
managing agencies for the delineation of critical habitat. Additional 
information such as forest type maps and aerial photography was used to 
supplement owl habitat and site maps. Forest type maps may be compiled 
by land-managing agencies by use of information at a variety scales. 
Most scales are fine enough to locate specific areas to within a 
hundred feet. The Service used 1:24,000 scale aerial photography 
sufficiently detailed to pick out individual trees and identify 
vegetation types. Although nest/roost habitat comprises only a portion 
of the total critical habitat area at the home range scale and primary 
constituent elements are also only found in a subset of habitat at 
finer scales, all critical habitat areas have the capability of 
supporting territories at the landscape scale.
    Issue 9: Regulations pertaining to the designation of critical 
habitat state that the entire geographic range that can be occupied by 
a species is not to be included in critical habitat. Unoccupied habitat 
may only be designated if determined to be essential to the 
conservation of the species.
    Service Response: The Service has not designated the entire 
potential geographic range of the subspecies. However, critical habitat 
does include the entire subset of the known or expected owl population 
where there exist resource management actions with known or expected 
adverse habitat impacts. The Service believes that the current owl 
population is adequate to achieve delisting should the central 
subpopulations show stable or increasing demographic trends. Therefore, 
all known territories and supporting habitat are essential to the 
recovery and conservation of the subspecies.
    Habitat may be unoccupied due to such disparate factors as 
demographic inviability and extirpation, or natural intermittency and 
movement between different habitat areas or alternate home ranges. 
Critical habitat includes some areas with low owl densities and 
intermittent occupancy. However, no critical habitat units were 
designated that are incapable of supporting spotted owls.
    Issue 10: The Service cites the minimization of fragmentation as a 
guideline used in the delineation of critical habitat. Southwestern 
forests are naturally fragmented, and the guideline is not applicable 
to Mexican spotted owl habitat.
    Service Response: The Service agrees that southwestern forests and 
owl habitat are characterized by heterogeneous and discontinuous 
vegetative cover types. The minimization of fragmentation, a principle 
emphasized by the Interagency Scientific Committee for the northern 
spotted owl (Thomas et al. 1990) and others working in the field of 
conservation biology, was only used in the delineation of critical 
habitat in the infrequent instances where there was some choice between 
areas of habitat fragmented because of management activities and other 
relatively unmodified areas. For the most part, delineation was 
determined by the presence of owl territories. Extensive tracts of 
unsuitable habitat were not included to increase the contiguity of 
critical habitat units.
    Issue 11: The Service offers no evidence to support the statement 
in the proposed rule that National Park Service lands and wilderness 
areas are not sufficient to support a viable population of owls.
    Service Response: The proposed rule states that `` * * * these 
lands by themselves do not provide adequate habitat to support a viable 
range-wide Mexican spotted owl population * * * '' (emphasis added). 
National Parks and wildernesses do not constitute a well-distributed 
land base nor contain a significant proportion of owl habitat. The 
largest of the wilderness areas supporting Mexican spotted owls are the 
Aldo Leopold and Gila Wildernesses. These fairly contiguous areas may 
support a relatively sizeable subpopulation of owls. However, the long-
term viability of a population limited to the combined wilderness areas 
is low because of the local extent of available habitat and the 
susceptibility of relatively small populations to genetic, demographic 
and environmentally random events. The great distances between park and 
wilderness areas further reduce their ability to support viable 
populations without the complementary function of additional habitat 
outside the reserved areas. There is ample support for this 
[[Page 29938]] general observation in the available literature on the 
dynamics of small populations.
    Issue 12: Exclusion of wilderness areas and National Parks from 
critical habitat is not justifiable.
    Service Response: The Service considers management practices in 
place and threats to specific areas when determining which areas are in 
need of special management or protection and therefore meet the 
definition of critical habitat. The Service acknowledges that some 
resource extraction and human-caused habitat changes occur in both 
National Parks and wilderness areas. However, the threat of even-age 
timber management has been identified as a primary threat to owl 
habitat, and critical habitat was predominately identified in areas 
where that activity may occur. The Service is unaware of any plans for 
logging in wilderness areas or National Parks.
    Issue 13: Successional changes in forest habitat types have 
resulted in forest health problems. Management of owl habitat will 
increase tree densities, canopy layers, and fuel loads, and in turn, 
increase the risk and intensity of wildfire. Critical habitat will also 
preclude the implementation of fire prevention activities.
    Service Response: The Service agrees that many vegetative 
communities have undergone successional and structural changes as a 
result of past and current management practices. These practices 
include, to varying degrees, the combined effects of long-term and 
widespread fire suppression, reduction in surface fuels, rates of tree 
overstory removal and regeneration treatments on cycles shorter than 
those found in natural disturbance regimes, inadequate control of tree 
densities responding to fire suppression and tree harvest, and in xeric 
forest types, decreases in the proportion of the landscape in stands 
composed of more fire resistant large-diameter trees. The Service also 
agrees that the vegetative structural and landscape changes may require 
proactive management to restore an appropriate distribution of age 
classes, control regeneration densities, and reintroduce some measure 
of natural disturbance processes such as fire events. This may include 
prescribed fire and thinning treatments, restoration of the frequency 
and spatial extent of such disturbances as regeneration treatments, and 
implementation of prescribed natural fire management plans where 
feasible. The Service considers use of such treatments to be compatible 
with the ecosystem management of habitat mosaics and the best way to 
reduce the threats of catastrophic wildfire. The Service will fully 
support land management agencies in addressing the management of fire 
to protect and enhance natural resources under their stewardship.
    Critical habitat objectives do not include the conversion of forest 
vegetative types, nor the prevention of actions designed to alleviate 
the risk of wildfire. Management approaches considered for critical 
habitat primarily focus on the maintenance of mature forest attributes 
in mixed conifer and pine-oak habitat types over a portion of the 
landscape and in areas that support existing territories. It does not 
emphasize the creation of these features where they do not currently 
exist. It also does not preclude the proactive treatments mentioned 
above. Clearly, the loss of owl habitat by catastrophic fire is counter 
to critical habitat management objectives.
    It is important to stress several principles in the Service's 
policy on fire management. The first is that the Service always defers 
to the expertise and authority of the land-managing agency during 
response actions to fires. The second is that firefighter safety is of 
paramount importance and is never superseded by wildlife management 
objectives. The third is the Service has a responsibility to assist in 
the protection of life and property. The Service's primary role in 
dealing with the combined issues of both fire and critical habitat 
management is to assist in the development and implementation of 
management practices that incorporate the objectives discussed above 
without violating the aforementioned principles. These principles are 
set forth in an issue paper signed May 16, 1995, by the Regional 
Forester of the Southwest Region of the U.S. Forest Service and the 
Acting Regional Director of the U.S. Fish and Wildlife Service.
    Issue 14: The range of the Mexican spotted owl has changed over the 
last 100 years. Pre-settlement forests were more open and dominated by 
ponderosa pine, and were therefore not owl habitat. Fire suppression 
allowed conversion of ponderosa pine forests to mixed conifer forests, 
allowing the spotted owl to occupy formerly unoccupied areas. Critical 
habitat should be limited to the historic distribution of mixed conifer 
forests.
    Service Response: The Service agrees that some areas now occupied 
by spotted owls may not have been occupied in pre-settlement forests, 
which in certain vegetative associations were more open-canopied and 
composed of ponderosa pine rather than mixed conifer species. However, 
the Service is unaware of any way to estimate how many sites are 
``recently'' occupied, nor can it determine where those sites are.
    Conversely, the spotted owl was known to nest in the mature forests 
that dominated the lowland riparian areas in pre-settlement times but 
are now largely absent. Again, the Service is unable to quantify the 
number of nesting territories supported by that forest type. The result 
is that some formerly important areas have become unable to support 
owls, while other areas have only become owl nesting and roosting 
habitat recently. These phenomena undoubtedly offset one another but 
are not quantifiable. The Service recognizes that forest structure is 
the result of dynamic processes, but must base its decision on the 
current situation and the best available information.
    Issue 15: According to the Forest Service, mixed conifer forest 
faces severe threats from insects and disease. This supports the 
position that before fire suppression these forests were less dense, 
and failure to treat this threat by timber harvest poses a significant 
threat to the owl.
    Service Response: The Service acknowledges that this link may 
exist, especially in drier mixed conifer associations that under 
natural fire regimes experienced frequent low-intensity and spatially 
extensive understory fire events. These mixed conifer associations may 
have developed higher densities of small-diameter stems that have 
escaped the thinning effects of fire. In these situations, there may be 
some benefit from understory and small and mid-diameter tree density 
regulation. Designation of critical habitat does not preclude this type 
of management.
    Issue 16: In the final rule to list the Mexican spotted owl as 
threatened, the Service stated that the national forest plans call for 
a conversion of habitat to an unsuitable condition at an annual rate of 
0.4 percent. At that conversion rate it would take 250 years for 
suitable owl habitat to be completely destroyed. The Service stated in 
the listing rule that it takes 80 years for habitat recovery of a 
harvested area. This means that at least 60 percent of owl habitat will 
always remain, even at 1991 logging levels.
    Service Response: The 0.4 percent conversion rate would represent a 
250 year ``cycle'' assuming that the national forests operated on such 
a rotation length. However, most timber lands operate on cycles of 120 
years or less, meaning that a stand would be ``regenerated'' as it 
begins to regain complex structural attributes. 
[[Page 29939]] Furthermore, stands that are managed under even-age 
systems become designated to continue under such a system, and will 
mostly remain as habitat incapable of supporting the more restrictive 
habitat needs of nesting and roosting owls. Continued conversion of 
habitat cumulatively adds to the habitat indefinitely retained in a 
modified condition.
    The Service's statement in the listing rule that 80 years is 
required for habitat to recover was made in the context of forest 
habitat on the Lincoln National Forest where high site indices permit 
rapid recovery. Forest habitat in most other areas of the Southwest 
have lower indices and may be expected to require longer recovery 
periods. Fletcher (1990) estimated that 44 percent of habitat modified 
on national forests would require more than 100 years to recover. This 
implies that for recent modifications 100 years may be a minimal period 
of time for recovery. Actual recovery time may be expected to be 
greatly dependent on site quality, the nature and intensity of the 
initial modifying event, residual habitat components, and subsequent 
treatments or management actions.
    Issue 17: The northern goshawk guidelines provide adequate 
protection for owl habitat. Critical habitat is not required where the 
goshawk guidelines are applied.
    Service Response: In general, the guidelines outlined in 
``Management Recommendations for the Northern Goshawk in the 
Southwestern United States'' (Reynolds et al. 1992) (guidelines) may 
support the development of some of the forest habitat attributes 
suitable for owl foraging activities. However, several premises to the 
guidelines result in conditions that are inadequate for their use as a 
comprehensive owl forest habitat management plan. The guidelines use a 
rotational system based on ``balanced'' (evenly apportioned) age/size 
classes or vegetative structural stages (VSS) not tempered by such 
factors as site quality, growing conditions, and management intensity. 
Inclusion of these factors into the calculation of VSS can result in 
figures significantly different from the allocations specified in the 
guidelines. The management strategy of apportioning percentages of the 
forest base to various VSS may also only be workable where each stage 
accurately reflects the length of time required by each successional 
phase, particularly in the older age classes. Currently, however, the 
application by the national forests of the guideline's VSS allocation 
percentages typically does not incorporate or reflect these factors, 
and may, therefore, result in landscapes deficient in or without late 
successional forest stands. In addition, the short time (between 0 and 
65 years depending on said factors) allotted for a stand to abide in 
old-growth condition may not permit development of senescent forest 
features such as snags and large diameter logs.
    The management guidelines also use a period of time that 
inadequately represents forest age rotations. Currently, the VSS 
allocations are based on the selection of a maximum growth period 
derived from the average life expectancy of individual trees. However, 
the low to moderate survivorship curves exhibited by populations of 
many tree species may be expected to heavily weigh and reduce the 
average life expectancy to relatively short lengths of time. Where a 
small proportion of all regeneration reaches maximum longevity, the use 
of median life expectancy may be a more appropriate target for setting 
forest age rotations.
    Other guideline specifics such as the number of large diameter 
trees retained following harvest may result in deficiencies in age-size 
classes available for snag recruitment and large diameter logs. In 
addition, the guidelines are only applied to occupied habitat (with the 
exception of the forest-wide application by the Kaibab National 
Forest). Occupancy, and therefore management objectives may change over 
time and prevent the implementation of the long-term objectives 
required for development and maintenance of the amounts and 
distribution of late successional forest stages and forested owl 
habitat needed for the survival and recovery of the owl.
    Issue 18: The Service is required to complete an Environmental 
Assessment and Environmental Impact Statement on the designation of 
critical habitat as required under the National Environmental Policy 
Act of 1969 (NEPA).
    Service Response: The Service has determined that an Environmental 
Assessment or Environmental Impact Statement, as defined under the 
authority of the NEPA, need not be prepared in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act of 1973, as amended. A notice outlining the Service's reasons for 
this determination was published in the Federal Register on October 25, 
1983 (48 FR 49244). The Ninth Circuit recently upheld this 
interpretation in Douglas County v. Babbitt, 48 F.2d 1498 (9th Cir. 
1995), petition for rehearing pending. The Ninth Circuit reversed lower 
court decision and found the requirements for designating critical 
habitat pursuant to the Endangered Species Act displaced the 
requirements of NEPA; that NEPA does not apply to federal actions which 
do nothing to alter the natural physical environment; and the ESA, by 
preserving the environment and preventing the irretrievable loss of 
natural resources, furthers the goals of NEPA without requiring an 
Environmental Impact Statement. Before the Ninth Circuit issued its 
decision, a federal district court in New Mexico took the opposite 
position in Board of County Commissioners of the County of Catron, New 
Mexico v. United States Fish and Wildlife Service, No. 93-730-HB 
(D.N.M., October 13, 1994), appeal pending. There the federal district 
court set aside the final designation of critical habitat for two 
endangered fish: the spikedace and loach minnow, until NEPA compliance 
was completed. That case is currently on appeal before the Tenth 
Circuit. Catron County Board v. U.S.F.W.S., No. 94-2280 (10th Cir.).
    Issue 19: Following the filing of the lawsuit Dr. Robin Silver, et 
al. v. Bruce Babbitt, et al., the Federal District Court in Arizona in 
October 1994, ordered the Service to ``publish a proposed designation 
of critical habitat, including economic exclusion pursuant to U.S.C. 
Sec. 1533(b)(2).'' The proposed rule does not contain any information 
on the areas to be excluded for economic reasons.
    Service Response: An amendment to the proposed rule for the 
designation of MSO critical habitat, published December 7, 1994 (59 FR 
63162), was published in the Federal Register on March 8, 1995 
(Supplemental Proposed Rule, 60 FR 12728). The Supplemental Proposed 
Rule identified the critical habitat areas proposed for exclusion based 
on information obtained in the draft economic analysis indicating the 
designation might have disparate economic impacts in certain areas. 
Comment on the proposed revisions was specifically solicited. At the 
same time, the Service also published notice of the availability of the 
economic analysis (60 FR 12730), announced the dates, times and places 
for four public hearings and reopened the public comment period for an 
additional 60 days to assure that the public had an opportunity to 
comment on the economic analysis, the proposed rule and the proposed 
exclusions.
    Issue 20: The conservation agreements developed or being pursued by 
the Service with various Tribal governments constitute major Federal 
actions and are subject to the NEPA process. The specifics in the 
conservation plan for the Mexican spotted owl developed by 
[[Page 29940]] the White Mountain Apache Tribe should be described in 
the proposed rule since it led to the exclusion of proposed critical 
habitat on the Tribe's lands.
    Service Response: Although many have referred to ``conservation 
agreements'' with various tribes, actually individual tribes have been 
developing their own resource management plans. The Service has offered 
technical assistance in reviewing these plans to assure they contain 
adequate protections for protected species and habitat. However, the 
action is not a federal action, but a Tribal action. Both the White 
Mountain Apache and the Jicarilla Apache Tribes took this approach.
    The Service, after examining the White Mountain Apache and 
Jicarilla Apache management plans for the Mexican spotted owl and each 
Tribe's ability and willingness to enforce the plans, determined the 
areas under these tribally managed plans did not require special 
federal management considerations or protection. Although the lands 
still had the physical and biological features essential to the 
conservation of the species, they no longer met the second half of the 
definition of critical habitat. See section 3(5)(A). It is the 
Service's position that NEPA process is not required for such 
decisions, since the process for designating critical habitat under the 
Endangered Species Act displaces further NEPA requirements. See Douglas 
County v. Babbitt, 48 F.2d 1498 (9th Cir. 1995), petition for rehearing 
pending; for further discussion, see Service's Response to Issue 16.
    The Navajo Nation is taking another approach. They are developing a 
Habitat Conservation Plan (HCP) which will include protections for 
numerous species and their habitat. NEPA compliance will be done for 
both the HCP and for any application for an accompanying section 10(a) 
permit.
    Issue 21: The Service failed to adequately notify the public of the 
proposed rulemaking and public hearings. The Service is required to 
provide for adequate input by the public and other affected parties 
such as counties and local governments.
    Service Response: The Service has exceeded the requirements of the 
Administrative Procedure Act and the Endangered Species Act for public 
notification. The final rule listing the Mexican spotted owl as 
threatened was published in the Federal Register on March 16, 1993 (58 
FR 14248), and announcements of the listing and availability of the 
final rule were mailed to Federal, Tribal, state, county, and local 
agencies and governments, and all interested parties on the Service's 
mailing list. The rule announced that the Service had concluded that 
designation of critical habitat was prudent, but found that critical 
habitat was not then determinable, and was initiating the gathering of 
information and the studies needed to ascertain critical habitat areas. 
On March 17, 1993, letters requesting information on owl habitat and 
distribution were sent to 14 Federal agencies. On April 14, 1993, 
letters requesting information on owl habitat and distribution were 
sent to 37 Tribal agencies. Based on the information received, the 
Service issued the proposal rule to designate critical habitat on 
December 7, 1994 (59 FR 63162). Prior to issuance of the proposed rule, 
the Service held a press briefing in Albuquerque, New Mexico, on 
November 30, 1994, announcing the proposal. In addition, the proposed 
rule was sent to affected Federal, Tribal, state, county, and local 
agencies and governments, and notices of the availability of the rule 
were sent to all interested parties on the Service mailing list. Public 
notices of the proposal for publication as legal notices were also sent 
to 18 newspapers throughout the four-state region on December 5, 1994. 
The general and newspaper notices requested data and comments from the 
government and public on all aspects of the proposal, including data on 
the economic impacts of the designation. The notice also announced a 
90-day comment period open until March 7, 1995. On December 19, 1994, 
the Service sent a request for information on the potential economic 
impacts of designating critical habitat to 13 Federal, 12 Tribal, and 
10 state agencies, and 4 Governors' and 42 county government offices. A 
Draft Economic Analysis (DEA) was prepared based on the information 
received, and a notice of the availability of that draft was published 
in the Federal Register on March 8, 1995 (60 FR 12728, 60 FR 12730). 
The publication also proposed several revisions to the original 
proposal, solicited additional information and comments, opened an 
additional 60-day comment period extending to May 8, 1995, and 
announced the schedule and location of public hearings. More than 700 
parties on the Service's mailing list also received an announcement of 
the above subjects. On February 23, 1995, the Service also sent for 
publication as legal notices in 36 regional newspapers, an announcement 
of the availability of the DEA, solicitation for additional information 
and comments, the opening of the additional comment period, and the 
schedule and location of public hearings. Public hearings were held in 
Santa Fe and Socorro, New Mexico, on March 22 and 23, 1995, and Tucson 
and Flagstaff, Arizona, on March 29 and 30, 1995. Comments from the 
public on the critical habitat proposal and DEA were recorded and 
evaluated for input to the final designation. More than 800 letters 
addressing the proposal were received during the comment periods. The 
correspondence and comments have been evaluated in the decision whether 
to designate critical habitat.
    Issue 22: The Service is incorrect in citing the use of 
clearcutting as the prevailing method of timber harvest, and timber 
harvest as the primary threat to the owl.
    Service Response: The Service does not consider clearcutting to be 
the prevailing method of timber harvest. The final rule to list the owl 
as threatened and the proposed rule to designate critical habitat 
identify the even-age harvest methods of shelterwood treatments as the 
prevailing method of timber harvest, and their use and rate of 
implementation as the primary threat to the subspecies.
    Issue 23: The Service should disclose the analysis and specific 
scientific data from it which derived its estimates and on which it 
based the proposal to designate critical habitat.
    Service Response: The data and information used to develop the 
proposed rule to designate critical habitat were summarized in that 
document, as well as in the proposed and final rule to list the species 
as threatened, and the two delisting petition finding notices published 
in the Federal Register. Additional information is available in the 
references cited in these rules and notices. This final rule 
incorporates information from previous rules and notices, comments 
received on the proposed rule to designate critical habitat, and data 
presented in the draft Recovery Plan.
    Issue 24: The conclusions drawn from the northern spotted owl 
(Interagency Scientific Committee) are not applicable to the Mexican 
spotted owl.
    Service Response: The Service used four general principles 
developed by the Interagency Scientific Committee and others working in 
the field of conservation biology during the initial process of 
delineating proposed critical habitat units (see Background section, 
``Criteria for Identifying Candidate Critical Habitat Units''). These 
principles are widely accepted by biologists as a means to achieve 
viable populations throughout the range of a [[Page 29941]] species, 
and to facilitate species' long-term survival and recovery. Specific 
conclusions drawn during the processes of listing and designation of 
critical habitat for the northern spotted owl were not used as a basis 
for this final rule.
    Issue 25: Management of critical habitat will have impacts on 
highway maintenance and safety.
    Service Response: Existing highway corridors typically do not have 
the habitat components relevant to management of owl critical habitat. 
Therefore, consultations on critical habitat would not be required 
where there is an action agency determination of ``no effect''. In 
instances where an action may affect critical habitat, consultation 
will be required. However, the Service does not anticipate that 
significant modification of planned highway projects will result from 
consultation on critical habitat.
    Issue 26: Management of critical habitat will have an impact on 
livestock grazing.
    Service Response: Livestock grazing is not known to have any direct 
impact to the components of upland forest and canyon owl habitats, and 
will likely not be subject to consultation or restriction in these 
areas. Livestock grazing may have both direct and indirect effects to 
the structural components of canyon and montane riparian habitat and to 
owl prey communities. If requested by Federal action agencies, 
consultation will likely entail the monitoring of grazing use, the 
establishment of conservative maximum allowable use levels and the 
implementation of grazing use standards that would attain or restore 
good to excellent range conditions in riparian habitats. Much of the 
consultation on livestock grazing in riparian habitat is expected to 
deal with implementation of existing action agency guidelines and 
standards.
    Issue 27: Critical habitat will prevent recreational activities and 
access to public lands.
    Service Response: Most recreational activities are not known to 
have any direct impact to the structural habitat components of upland 
forest and canyon habitats, and will likely not be subject to 
consultation on critical habitat in these areas. Some recreational 
activities may have both direct and indirect effects to the structural 
components of canyon and montane riparian habitat. If requested by 
Federal action agencies, consultation will likely entail the monitoring 
and regulation of the volume of recreational use where riparian habitat 
impacts have occurred or have the potential to occur. Few, if any, 
restrictions on recreational use of critical habitat areas are likely 
to result from critical habitat designation.
    Issue 28: Water development projects for the City of Blanding, 
Utah, may be impacted by the designation of critical habitat.
    Service Response: Future development of the City of Blanding's 
water rights on the Manti-La Sal National Forest is already subject to 
Forest Service review processes, including review for consistency with 
the Forest Plan standards and guidelines and NEPA procedures. Review of 
the effects of water development on critical habitat would be part of 
that process, and so should not impose an additional procedural burden 
on project applicants. Any activities proposed within the critical 
habitat unit would be evaluated for effects to primary constituent 
elements. The scope of such projects mostly entails limited, site-
specific impacts that are unlikely to adversely affect the value of the 
critical habitat unit.
    Issue 29: Management of critical habitat for the Mexican spotted 
owl will conflict with the management objectives of other animal and 
plant species, ecosystem objectives, and the Mexican gray wolf 
reintroduction program proposed for southern Apache National Forest.
    Service Response: The comments received did not specify how 
conflicts may arise between owl critical habitat and other management 
objectives. Critical habitat management primarily focuses on the 
maintenance of habitat features in mixed conifer and pine-oak habitat 
types that support existing territories, and the maintenance of good 
montane riparian habitat conditions. It does not emphasize the creation 
of these features where they do not currently exist, or do not have the 
potential to naturally occur. It also does not require maintenance of 
owl habitat components across all areas.
    The management approach to critical habitat addresses diversity at 
the landscape scale by maintaining spatial variation and distribution 
of age classes, and at the stand scale by managing for complex within-
stand structure. The methods to attain or conserve the desired measure 
of diversity vary, but are designed to maintain existing mature/old 
forest characteristics while allowing some degree of timber harvest and 
management of other objectives such as tree density control and 
prescribed fire. Older forests are productive successional stages that 
provide favorable environments for diverse assemblages of plants and 
animals. The maintenance of this underrepresented seral stage at 
landscape and stand scales will provide and enhance biological 
diversity. Therefore, critical habitat management does not preclude 
managing for other objectives. In addition, critical habitat management 
is adaptive and will incorporate new information on the interaction 
between natural disturbance events and forest ecology. The Service 
continues to support sound ecosystem management and maintenance of 
biodiversity.
    Issue 30: Areas within critical habitat with little or no timber 
harvest threats to owl habitat should be deleted from the final 
designation.
    Service Response: The use and rate of timber harvest under even-age 
harvest systems were identified by the Service as the primary threat to 
the habitat of the Mexican spotted owl. However, other habitat 
modifying activities have also been identified in the proposed rule as 
potentially affecting owl habitat, and may require consideration of 
habitat impacts and consultation. These include vegetative treatments 
to manage insects and disease, timber salvage, density control of 
forest and woodland stands, and fire prevention and control programs. 
However, areas where there is no threat to owl habitat components are 
functionally excluded from critical habitat since no consultation would 
be required.
    Issue 31: Critical habitat should be modified to reflect changing 
management practices. Specific areas of critical habitat should revised 
to reflect new or more detailed information.
    Service Response: The Service will incorporate new or more detailed 
information as it becomes available and will reevaluate critical 
habitat areas as needed. Periodic modification of critical habitat may 
occur at later dates. The Service will work with interested agencies or 
entities with expertise and available data on the refinement and 
revision of designated critical habitat; however, the Service's court-
ordered deadline and requirements for public notice and comment on 
exclusions preclude any significant revisions at this time.
    Issue 32: One commenter maintained that critical habitat 
designation would have a significant economic impact on the Mount 
Graham Steward Observatory, Discovery Park and State Highway 366, 
electronic site development, and campground expansion projects.
    Service Response: The Service's position (also stated in the Draft 
Economic Analysis) is that there is little or no potential for economic 
impacts as a result of consultation requirements to these proposed or 
ongoing projects. The [[Page 29942]] reasons for this are the limited 
amount of habitat affected by the projects and the negligible effects 
to the viability of the Pinalenos Mountains Critical Habitat Unit 
expected from these site-specific actions. Therefore, significant 
impact to these projects from critical habitat designation are 
unlikely.
    Issue 33: The Service should describe the criteria used in the 
preparation of the management alternatives outlined in its request to 
land-managing agencies/governments for information on economic impacts 
of critical habitat designation. The Service should also describe how 
progress towards meeting critical habitat objectives is to be 
ascertained.
    Service Response: The alternatives were developed based on existing 
and proposed management guidelines for owl habitat. The first 
alternative describes the guidelines developed by the Forest Service 
and in place up until formal adoption of the Mexican Spotted Owl 
Recovery Plan. The second alternative constitutes a summary of the 
draft Recovery Plan management recommendations for mixed conifer and 
pine/oak forest types. The third alternative includes the same Plan 
recommendations with additional management guidelines considered for 
ponderosa pine habitat types. The Service would measure progress 
towards achieving management objectives by evaluating action agency 
compliance during consultation.
    Issue 34: The Forest Service is committed to implementing the 
Mexican Spotted Owl Recovery Plan; therefore, the Plan precludes the 
need for special management and critical habitat for the subspecies.
    Service Response: The Service commends the Forest Service for 
initiating a process to incorporate recovery plan recommendations into 
their Forest Planning process and to move to mostly uneven age 
silvicultural regimes. However, the Recovery Plan is a draft document 
at this time, and the Service is awaiting the results of extensive peer 
review and public comment, which could result in a final recovery plan 
that differs from the draft document. In addition, the Recovery Plan is 
not a ``decision document'' as defined by NEPA, and does not allocate 
resources on public lands. The implementation of the recovery plan is 
the responsibility of Federal and state management agencies in areas 
where the subspecies occurs. Implementation is accomplished by the 
incorporation, as regulatory mechanisms, of the appropriate portions of 
the Recovery Plan into agency decision documents such as forest plans, 
park management plans, and state game management plans. Such documents 
are then subject to the NEPA process for public review and selection of 
alternatives. At that point, if implementation is effective, it may 
supersede the need for special management, and critical habitat may be 
withdrawn. Until public comment is received and analyzed on both the 
Recovery Plan and the Forest Service NEPA process, consideration of 
changes in Forest Service management would be predecisional and 
premature.
    Issue 35: Service acceptance of management plans that preclude 
designation of critical habitat on certain lands is inappropriate.
    Service Response: The Act provides for numerous mechanisms to 
conserve both listed and unlisted species. Critical habitat is one of 
those mechanisms. To qualify as critical habitat, an area must be one 
that may be in need of special management considerations or protection. 
The Service interprets that requirement to mean that if adequate 
management for a species is already in place, ``special management 
considerations or protection'' are not necessary, and the species can 
be conserved without the added regulatory requirements associated with 
critical habitat.
    Issue 36: The Forest Plans are outdated and are not being followed 
in many respects. The Service should consider the management practices 
actually implemented in recent years. The Service should also consider 
the Forest Plan amendments in progress that provide for the needs of 
the subspecies. The Service should also consider a management plan for 
ponderosa pine habitats approved by the Manti-La Sal National Forest in 
1994.
    Service Response:  The Service understands that the Forest Plans 
are outdated, and that other regulatory mechanisms such as Interim 
Directive #2 (ID2) have been in place to direct management of owl 
habitat. The Service is also aware of the amendments being prepared for 
all the national forests in the Southwest Region of the Forest Service. 
However, past practices such as ID2 and forest plan standards and 
guidelines were assessed as inadequate regulatory mechanisms and 
resulted in the listing of the owl. In addition, ongoing policy changes 
are often in flux, are sometimes contradictory, and until completed, do 
not constitute established policy that may be used to determine 
management objectives and directions.
    The management plan for ponderosa pine habitats on the Manti-La Sal 
National Forest has not been provided to the Service by the Forest. 
Furthermore, the plan is an internal guideline and has not been 
incorporated into the Forest Plan. However, the Service strongly 
encourages the development and implementation of improved management 
plans, and their incorporation into Forest Plans.
    Issue 37: The proposal to designate critical habitat does not 
coincide with the draft Mexican Spotted Owl Recovery Plan. For example, 
the recovery plan allows ``unrestricted'' management practices above 
8,000 feet on the Kaibab Plateau, yet a considerable amount of critical 
habitat proposed in that area is above that elevation.
    Service Response:  Recovery planning and the designation of 
critical habitat are two different processes, each with its own time 
lines and purposes under the Act. Critical habitat designation is 
required, if both prudent and determinable, to be designated 
concurrently with the listing of a species. If not determinable at the 
time of listing, an additional year is allowed under law. Recovery 
plans, however, are not under statutory deadlines, although Service 
policy is to have final recovery plans in place within 30 months of 
listing a species as threatened or endangered. Thus, as a general rule, 
critical habitat precedes recovery plan development.
    In the case of the Mexican spotted owl, the development of a 
critical habitat proposal was begun before the recovery planning 
process had begun, and was published in the Federal Register before the 
draft Recovery Plan was completed. The requirements of the Act and its 
implementing regulations, as enforced by a Federal Court, did not allow 
enough time for the Service to go back to the beginning of the critical 
habitat development process, develop a new proposed rule, and finalize 
critical habitat by the deadline ordered.
    Critical habitat identifies areas containing the physical and 
biological features essential to the life history needs of a listed 
species, and that may need special management or protection. 
Designation of critical habitat does not specify what those special 
management considerations or protections are; those questions are 
addressed during the recovery planning process. In other words, 
critical habitat areas are those where the Service believes greatest 
management emphasis for a listed species should be placed, while 
recovery planning explains what that management should be.
    In the specific instance involving the Kaibab Plateau, the area is 
``unrestricted'' only if no nesting or roosting owls are located. The 
Recovery Team believes nesting and roosting is [[Page 29943]] unlikely 
to occur; however, the plan may be modified should a significant 
resident owl population be discovered prior the Service's adoption of a 
final recovery plan. At any rate, once a final recovery plan is 
adopted, the Service will consider whether to revise critical habitat 
through a separate rule making process.
    Issue 38: Owl use of the habitat above canyon rims is minimal on 
the Monticello Ranger District of the Manti-La Sal National Forest. 
Radio telemetry indicates that fewer than 10 percent of recorded 
locations occur in these areas, with no data on actual use of the area.
    Service Response:  The Service agrees that very little, if any, 
nest/roost habitat exists on the mesa tops that constitute the critical 
habitat unit on the Manti-La Sal National Forest. However, radio 
telemetry data indicate owl presence in this habitat, and the 10 
percent figure cited by the Forest may be considered a minimum, with 
radio locations probably making up between 10 to 25 percent of all 
locations (David Willey, High Desert Research Collective, pers. comm., 
1995). The commenter is correct in noting that there are no data on the 
behavioral use of the habitat at the various locations. This is a 
limitation inherent in this method of analyzing the spatial use of 
habitat.
    Issue 39: Additional areas in Utah should be considered since 
critical habitat contains less than five percent of known owl sites in 
Utah. In addition, these owl sites and habitat may experience threats 
from such sources as recreational activities.
    Service Response:  The Service, in the final rule to list and the 
critical habitat proposal, determined that the primary threat to the 
species was commercial timber harvest. The majority of owl sites in 
Utah are found in steep canyon habitats within areas not managed for 
timber harvest. Although there are other threats to canyon-nesting owls 
besides stand modifying activities, the Service has been unable to find 
evidence that these threats are significant to the owl population as a 
whole. The determination was made that these actions can be dealt with 
through consultation under section 7 of the Act without designation of 
critical habitat.

Economic Issues
    Issue 40: Each critical habitat unit is a separate ``area'' as that 
term is used in 16 U.S.C. 1533(b)(2), and requires the Service to 
consider economic impacts by individual unit.
    Service Response: The Service is required to use the best available 
data to conduct its economic analyses under the Endangered Species Act. 
In the case of the Mexican spotted owl, county level data were not 
sufficiently reliable to be used to estimate economic impacts for each 
of the 28 counties. Therefore, the data were aggregated into three 
subregions. This was the required aggregation for the purposes of 
creating a viable economic model that could be used in estimating 
economic impacts.
    Issue 41: Several commenters were concerned that the economic 
analysis hides and dilutes the impact of actions on rural communities, 
especially when data includes large urban areas.
    Service Response: The smallest subdivision with standard, 
meaningful economic data typically is an individual county; thus, 
economic impacts are based on county data for regional effects, whereas 
statewide or nationwide data and effects are addressed only when they 
become economically relevant. As stated in the economic analysis, urban 
areas within the region, including Albuquerque, Phoenix, and Tucson, 
were not included in order to avoid diluting impacts.
    Issue 42: Several people stated that the economic analysis does not 
consider the multiplier effect of base manufacturing impacts including 
secondary and primary manufacturing jobs and sales, support industries, 
government jobs, and revenues to local counties.
    Service Response: The analysis considers the full impacts due to 
changes in wood sector businesses and suppliers and the impact due to 
employee spending changes, all of which are the components of the 
multipliers. Impacts on communities' revenues and taxes were 
considered, based on available information, including what was provided 
by county officials.
    Issue 43: Some respondents noted that the economic analysis did not 
consider reduced property and sales taxes due to the proposed action, 
and stated that the analysis used Federal payments in lieu of taxes 
(PILTs) as justification for reductions in counties' shares of timber 
sale receipts.
    Service Response: The economic analysis discusses impacts on 
property taxes and offsetting PILT payments. According to sources used 
in the analysis, the net impact will not affect most counties, but will 
affect two counties more than others. While PILT payments are not 
stumpage taxes paid by the U.S. Forest Service, they are offsetting 
funds paid to the counties. Since they offset other taxes, they have 
little impact to the U.S. Treasury.
    Issue 44: A few groups commented that the economic analysis fails 
to consider the increased cost of doing business for forest products 
companies, and fails to consider the potential impact to shareholders 
of the companies.
    Service Response: The analysis reports changes in sales revenue for 
the region, which includes impacts to shareholders of companies in the 
region. The increased cost of doing business that may occur as a result 
of higher timber prices is a distributional effect within the region, 
in that the owners of the timber will benefit from higher timber 
prices.
    Issue 45: One commenter noted that the analysis does not analyze 
the effects of the withdrawal of Federal timber from the market nor the 
subsequent changes in property and timber values for private timber 
owners.
    Service Response: Critical habitat designation affects only Federal 
timber harvest; however, reductions in timber harvest from public lands 
could increase the value of timber on private lands, thereby 
benefitting non-Federal timber owners.
    Issue 46: One comment was received that the proposed action would 
cause loss of employment for government workers involved in timber 
sales, and noted that the economic analysis does not adequately address 
the costs of not having a forest products industry in the Southwest 
operating on Federal forests.
    Service Response: Most Federal forests in the region are not 
affected by the proposed action. The proposed CHUs within national 
forests represent less than 19 percent of the Federal forest acres in 
the Southwest region of the U.S. Forest Service--the timber harvest is 
estimated to decline about the same amount. This proposed action will 
not close down the forest products industry in the Southwest, nor 
substantially affect Federal employment related to timber sales.
    Issue 47: One individual noted that the analysis does not address 
the impacts of designating critical habitat for the Mexican spotted owl 
to other previously listed species across the U.S.
    Service Response: The impacts estimated in the report reflect only 
the proposed critical habitat designation for the Mexican spotted owl, 
as directed by the Endangered Species Act. Appendix E of the economic 
analysis provides information from the Service about other species that 
may be affected by this proposed action.
    Issue 48: One commenter stated that public opinion polls and non-
scientific work have no place in the economic analysis.
    Service Response: Data from all credible available sources were 
considered in conducting the analysis. [[Page 29944]] In some cases, 
information requested from Federal, State, local, and Tribal agencies 
was not provided. Surveys relevant to the topics were used to indicate 
public preferences for policy actions, an important consideration to 
public agencies mandated to manage public resources.
    Issue 49: A few comments were received maintaining that the 
exercise was conducted to prove that critical habitat designation is a 
minor inconvenience, and that the analysis was not an unbiased attempt 
to describe regional economic impacts.
    Service Response: The analysis was undertaken without bias toward a 
particular goal or level of economic impacts. The results reflect 
appropriate impacts considering that most timber acres in the Southwest 
region are not affected by the proposed critical habitat designation.
    Issue 50: One group stated that the nonmarket benefits mentioned in 
the economic analysis assume increased value due to recreational uses 
such as fishing, hunting, and picnicking, and ignore that these 
activities occur presently and historically, and that these activities 
are complementary to timber harvesting. The same group maintained that 
access to the forest will be reduced due to lack of road maintenance.
    Service Response: Some recreational activities may benefit from 
timber harvest programs (e.g., hunting for species that rely on forest 
edges), while others (e.g., sightseeing and wilderness camping) will 
not. While timber programs may contribute to forest access, recreating 
in areas from which timber has been cut recently may be discontinued. 
The acres proposed as CHUs will continue to be accessible for 
recreational uses.
    Issue 51: One person wrote that the economic analysis made 
nonmarket items appear to be the major areas of value resulting from 
the protection of the owl. Nonmarket values are value judgments, not 
pure science.
    Service Response: Nonmarket values are likely to be the primary 
benefit resulting from the proposed action. Individuals hold values for 
resources for personal use and other reasons. People may value 
continued existence of a resource they do not personally use because of 
environmental concerns, to preserve the option to use the resource in 
the future, or to endow the resource to coming generations. Nonmarket 
values are estimated using contingent valuation method (CVM). This 
technique is generally accepted as an appropriate means of evaluating 
this class of values.
    Issue 52: Several commenters criticized the report for not 
including dollar estimates of the nonmarket benefits resulting from the 
proposed action.
    Service Response: Quantifying species benefits is a costly and 
lengthy process that was not possible within the time constraints of 
the project. Even with results from such a study, allocating the 
benefits of preservation and recovery of an endangered species among 
the various actions required is an extremely difficult task. If species 
conservation were accomplished entirely through designation of critical 
habitat, then the full value of benefits could be attributed to that 
action. However, conservation is achieved with multiple interactive 
actions (e.g., Federal listing, protection under State laws), each of 
which may be essential to recovery and no one of which can be singled 
out as the sole means by which a species is conserved or recovery 
attained. Without a clear delineation of the results of each management 
action, it is not possible to disaggregate the sum of benefits to 
identify that portion directly attributable to critical habitat 
designation.
    Issue 53: The comment was made that the economic analysis omitted 
major items such as total cost when the Forest Service implemented its 
pre-listing owl management guidelines, and the resulting impacts on 
activities such as recreation, grazing, and mining.
    Service Response: The economic analysis estimates the impact of the 
proposed critical habitat designation for the Mexican spotted owl. The 
Service has indicated in the proposal that the activity of concern is 
timber harvest. Other activities, such as recreation, mining, and 
grazing, would not be affected by the proposed action unless they 
involve changes to constituent elements of critical habitat. Listing a 
species provides protection under the jeopardy standard. Additional 
protection is provided through the adverse modification standard after 
critical habitat is designated. These are separate actions between 
which the economic analysis clearly distinguishes.
    Issue 54: Several letters were received commenting that the 
analysis excluded the impacts of wildfire that will result from the 
proposed action.
    Service Response: The Service recognizes the danger fire poses to 
the owl. When the owl was listed and when critical habitat was proposed 
the Service encouraged reducing this risk with proper forest 
management. A relatively small portion of the region identified by 
commenters as being ``under threat of catastrophic fire'' is proposed 
for designation. The 3.6 million acres of U.S. Forest Service land 
affected by this proposal represents less than 20 percent of the land 
under the agency's jurisdiction in the 28 counties. The trend of 
increased fire danger began decades ago with forest management 
practices since the 1950s, including fire suppression. This is not a 
new threat in the region, nor one that has suddenly arisen because of 
the proposed action. The forest in its current condition is noted as 
being highly susceptible to fire, before critical habitat was proposed.
    Issue 55: One timber industry representative asked whether Table 8 
reflects total national forest harvests or the harvest from CHUs.
    Service Response: The annual harvest levels provided in the report 
reflect only the harvests projected from the proposed CHU acres. This 
harvest level was indicated by forest managers. More than 80 percent of 
Federal forests, and all of non-Federal forests are not affected by the 
proposed action, and timber harvest can continue in addition to the 
harvest levels estimated in the report.
    Issue 56: Several respondents claimed the regulations proposed 
under critical habitat designation are targeted at specific mills or 
industries. Several letters stressed the importance of preserving and 
enhancing private sector employment in an area where over 23 percent of 
jobs are in government.
    Service Response: While the impacts reflect changes in Federal and 
private sector activity, no specific firms or industries are targeted 
by the proposed action for closure or elimination.
    Issue 57: A group of counties in eastern Arizona noted that the 
analysis failed to take into account the impacts of proposed timber 
harvest restrictions on local schools. For example, one county noted 
its schools depend heavily on Federal timber fees to maintain their 
programs--15 percent of the school district budget is derived from U.S. 
Forest Service fees. The counties claim loss of these revenues will 
result in closure of the schools.
    Service Response: The county cited as an example has approximately 
492,000 acres of National Forest, with about 164,000 acres (about one-
third of the acres) proposed for inclusion in critical habitat. Based 
on the data from this comment, this implies that less than five percent 
(one-third of 15 percent) of the budget of these schools would be 
affected if all timber harvest and other activities were eliminated in 
the critical habitat units. This worst case scenario is unlikely to 
occur.
    Issue 58: One letter stated that Appendix D of the draft economic 
[[Page 29945]] analysis reviews below-cost timber sales and indicates 
that critical habitat will reduce losses to the U.S. Treasury, in turn 
benefitting private timber owners who hold only 85,000 acres in 
proposed CHUs. The analysis was alleged to be incomplete, failing to 
account for gross ineffiencies of the Forest Service management, 
increased costs due to environmental regulations, and increased costs 
of managing forests under the National Environmental Policy Act.
    Service Response: Appendix D provides an overview of below-cost 
timber sales, pointing out that the U.S. Treasury could benefit if 
timber harvests were reduced. The analysis recognizes but does not 
quantify the added costs of the proposed action to the U.S. Forest 
Service. The agency presently incurs management costs, and the cost of 
environmental and National Environmental Policy Act compliance. Adding 
to the costs incurred by the U.S. Forest Service would generate even 
larger deficits. The analysis cited one of the possible benefits as 
increased demand for timber from all private landowners in the region, 
not only the 85,000 acres in the critical habitat units.
    Issue 59: Several people noted that increased sales from changes in 
recreation occur outside the region and do not provide additional value 
to the population within the region.
    Service Response: Part of expenditures by those who recreate is 
outside the region, but part is within the region, possibly including 
lodging, gas, food, and other supplies, thereby increasing the economic 
level of the local community. Increased expenditures can include both 
increased levels per person and increased numbers of recreationists.
    Issue 60: One writer stated that designation of critical habitat 
caused the closure of most sawmills in the region since 1989.
    Service Response: The designation of critical habitat only becomes 
effective 30 days from the date of this final rule.
    Issue 61: The analysis used 1991 data as a baseline, which does not 
isolate the impacts of critical habitat designation, rather it includes 
four years of impacts including listing. This fatally flaws the entire 
analysis.
    Service Response: The baseline year used in the analysis is 
provided as a basis of comparison only, and is not intended to imply 
the changes have occurred since that year. The impact analysis was 
conducted using a ``with and without'' framework for comparison, rather 
than with a ``before and after'' framework in which the impacts would 
have included previous actions to protect the owl. The 1991 data are 
the most current available for conducting the impact analysis.
    Issue 62: The economic analysis failed to consider impacts due to 
lumber price increases. The average framing lumber price in 1990 of 
$233.54 per 1000 board feet rose to a 1994 price of $411.02.
    Service Response: Any recent changes in timber price are not due to 
the proposed action because the regulation has not yet been enacted.

National Environmental Policy Act

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

Regulatory Flexibility Act and Executive Order 12866 (E.O. 12866)

    This rule was not subject to Office of Management and Budget review 
under E.O. 12866. The Department of the Interior certifies that this 
designation will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Also, no direct costs, enforcement costs, 
information collection, or recordkeeping requirements are imposed on 
small entities by this designation. Further, the rule contains no 
recordkeeping requirements as defined by the Paperwork Reduction Act of 
1980.

Takings Implications Assessment

    The Service has analyzed the potential takings implications of 
designating critical habitat for the owl in a Takings Implications 
Assessment prepared pursuant to requirements of Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights.'' The Takings Implications Assessment, available upon 
request (see ADDRESSES) concludes that the designation does not pose 
significant takings implications.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the New Mexico Ecological Services State 
Office (see ADDRESSES above).

Author(s)

    This final rule was prepared by Steve Spangle, U.S. Fish and 
Wildlife Service, Ecological Services--Endangered Species, Albuquerque, 
New Mexico; and Jennifer Fowler-Propst, Sonya Jarhrsdoerfer, and Marcos 
Gorresen, U.S. Fish and Wildlife Service, Ecological Services (see 
ADDRESSES).
    The economic analysis was prepared by Richard L. Johnson and Dirk 
D. Draper, U.S. Fish and Wildlife Service, National Biological 
Services, Midcontinent Ecological Science Center, Fort Collins, 
Colorado; and Earl Ekstrand and John R. McKean, Colorado State 
University, Fort Collins, Colorado.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


Sec. 17.11  [Amended]

    2. Section 17.11(h) is amended by revising the ``Critical habitat'' 
entry for ``Owl, Mexican spotted,'' under Birds, to read 
``Sec. 17.95(b)''.
    3. Section 17.95(b) is amended by adding critical habitat for the 
Mexican spotted owl (Strix occidentalis lucida), in the same 
alphabetical order as this species occurs in Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) * * *
    Mexican Spotted Owl (Strix occidentalis lucida).
    For the States of Arizona, Colorado, New Mexico, and Utah, critical 
habitat units are depicted on maps on file and are available for 
inspection by appointment at: U.S. Fish and Wildlife Service, Arizona 
Ecological Services State Office, 2321 West Royal Palm Road, Phoenix, 
Arizona 85021, telephone (602) 640-2720; U.S. Fish and Wildlife 
Service, Colorado State Sub-Office, 764 Horizon Drive, South Annex A, 
Grand Junction, Colorado 81506, telephone (970) 243-2778; U.S. Fish and 
Wildlife Service, New Mexico Ecological Services State Office, 2105 
[[Page 29946]] Osuna N.E., Albuquerque, New Mexico 87113, telephone 
(505) 761-4525; U.S. Fish and Wildlife Service, Utah Ecological 
Services Field Office, Lincoln Plaza, 145 East 1300 South, Suite 404, 
Salt Lake City, Utah 84115, telephone (801) 524-5001.

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[[Page 29951]]

    Primary constituent elements: Mexican spotted owl habitat that 
includes, but is not limited to, those habitat components providing or 
with the potential to provide for nesting, roosting, or foraging. 
Forested habitats used for nesting and roosting are characterized as 
supporting mature stand attributes including high canopy closure, 
multi-layered canopies, coniferous vegetation (sometimes including a 
hardwood understory), large diameter trees, high basal areas of live 
trees and snags, and high volumes of large logs. Nesting and roosting 
habitat also supports owl foraging activity; however, a wider array of 
habitat attributes may be found in areas used solely for foraging, 
including fairly open and non-contiguous forest, small openings, 
woodland, and rocky slopes. Canyon habitat is typically characterized 
by the cool, humid conditions found in deep, steep-walled, fractured 
structures. Canyons frequently contain patches or stringers of riparian 
and conifer forest, and adjacent slopes and mesa tops are vegetated by 
a variety of plant associations. Owl habitat may exhibit a mixture of 
attributes between the forested and canyon habitat types.

    Dated: May 25, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-13606 Filed 6-5-95; 8:45 am]
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