[Federal Register Volume 65, Number 141 (Friday, July 21, 2000)]
[Proposed Rules]
[Pages 45336-45353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18407]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG29


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of supplementary information.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose the 
designation of critical habitat pursuant to the Endangered Species Act 
of 1973, as amended (Act), for the Mexican spotted owl (Strix 
occidentalis lucida) (owl). The 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. We propose to designate approximately 5.5 million 
hectares (ha) (13.5 million acres (ac)) of critical habitat in Arizona, 
Colorado, New Mexico, and Utah, mostly on federal lands.
    If this proposed rule is finalized, section 7(a)(2) of the Act 
would require that Federal agencies ensure that actions they fund, 
authorize, or carry out are not likely to result in the ``destruction 
or adverse modification'' of critical habitat. Section 4 of the Act 
requires us to consider economic and other relevant impacts of 
specifying any particular area as critical habitat. We request data and 
comments from the public and all interested parties on all aspects of 
this proposal, including data on economic and other impacts of the 
designation. A draft analysis of the economic and other relevant 
impacts of this proposal that will be available for review and comments 
on during the public comment period for this proposal. We will announce 
the availability of this analysis in a future Federal Register notice 
and local newspapers. We also have prepared a draft environmental 
assessment for this proposal and are accepting public comments on the 
draft document.

DATES: We will consider all comments on the proposed rule, the draft 
economic analysis, and draft Environmental Assessment received from 
interested parties by September 19, 2000. We will hold six public 
hearings (see Public Hearings in the SUPPLEMENTARY INFORMATION section 
of this rule for dates).

ADDRESSES: 1. Send your comments on this proposed rule, draft economic 
analysis, and draft environmental assessment to the New Mexico 
Ecological Services Field Office, 2105 Osuna Road NE, Albuquerque, New 
Mexico 87113.
    2. The complete file for this proposed rule will be available for 
public inspection, by appointment, during normal business hours at the 
New Mexico Ecological Services Field Office, 2105 Osuna Road NE, 
Albuquerque, New Mexico 87113. The draft environmental assessment is 
available by writing to the above address. We will specify the 
availability of the draft economic analysis in local newspapers and 
through a notice in the Federal Register once it has been completed.
    3. For locations of the public hearings, see Public Hearings in the 
SUPPLEMENTARY INFORMATION section of this rule.

FOR FURTHER INFORMATION CONTACT: Joy Nicholopoulos, Field Supervisor, 
New Mexico Ecological Services Field Office, at the above address; 
telephone 505/346-2525, facsimile 505/346-2542.

SUPPLEMENTARY INFORMATION:

Background

    The Mexican spotted owl (Strix occidentalis lucida) is one of three 
subspecies of spotted owl occurring in the United States; the other two 
are the northern spotted owl (S. o. caurina) and the California spotted 
owl (S. o. occidentalis). The Mexican spotted owl is distinguished from 
the California and northern subspecies chiefly by geographic 
distribution and plumage. The Mexican spotted owl is mottled in 
appearance with irregular white and brown spots on its abdomen, back, 
and head. The spots of the Mexican spotted owl are larger and more 
numerous than in the other two subspecies, giving it a lighter 
appearance.
    The Mexican spotted owl has the largest geographic range of the 
three subspecies. The range extends north from Aguascalientes, Mexico, 
through the mountains of Arizona, New Mexico, and western Texas, to the 
canyons of southern Utah and southwestern Colorado, and the Front Range 
of central Colorado. Much remains unknown about the species' 
distribution in Mexico, where much of the owl's range has not been 
surveyed. The owl occupies a fragmented distribution throughout its 
United States range, corresponding to the availability of forested 
mountains and canyons, and in some cases, rocky canyonlands. Although 
there are no estimates of the owl's historical population size, its

[[Page 45337]]

historical range and present distribution are thought to be similar.
    According to the Recovery Plan for the Mexican Spotted Owl (USDI 
1995) (Recovery Plan), 91 percent of owls known to exist in the United 
States between 1990 and 1993 occurred on land administered by the U.S. 
Forest Service (FS); therefore, the primary administrator of lands 
supporting owls in the United States is the FS. Most owls have been 
found within Region 3 of the FS, which includes 11 National Forests in 
New Mexico and Arizona. FS Regions 2 and 4, including two National 
Forests in Colorado and three in Utah, support fewer owls. The range of 
the owl is divided into 11 Recovery Units (RU), 5 in Mexico and 6 in 
the United States, as identified in the Recovery Plan. The Recovery 
Plan also identifies recovery criteria and provides distribution, 
abundance, and density estimates by RU. Of the RUs in the United 
States, the Upper Gila Mountain RU, located in the central portion of 
the species' U.S. range in central Arizona and west-central New Mexico, 
has the greatest known concentration of owl sites (55.9 percent of U.S. 
population). Owls here use a wide variety of habitat types, but are 
most commonly found inhabiting mature mixed-conifer and ponderosa pine-
Gambel oak forests. The Basin and Range-East RU, with 16.0 percent of 
the U.S. population, encompassing central and southern New Mexico, and 
includes numerous parallel mountain ranges separated by alluvial 
valleys and broad, flat basins. Most breeding spotted owls occur in 
mature mixed-conifer forest. The Basin and Range-West RU contains 
mountain ranges separated by non-forested habitat. These ``sky island'' 
mountains of southern Arizona and far-western New Mexico contain mid-
elevation mixed-conifer forest and lower elevation Madrean pine-oak 
woodlands that supports 13.6 percent of the spotted owls. Colorado 
Plateau RU contains 8.2 percent of the U.S. population of Mexican 
spotted owls. This large unit includes northern Arizona, southern Utah, 
southwestern Colorado, and northwestern New Mexico, with owls generally 
confined to deeply incised canyon systems and wooded areas of isolated 
mountain ranges. Southern Rocky Mountains-New Mexico RU, with 4.5 
percent of the population, consists of the mountain ranges of northern 
New Mexico. Owls in this unit typically inhabit mature mixed-conifer 
forest in steep canyons. The smallest percentage of spotted owls (1.8 
percent) occurs in the Southern Rocky Mountains-Colorado RU. This unit 
includes the southern Rocky Mountains in Colorado, where spotted owls 
are largely confined to steep canyons, generally with significant rock 
faces and various amounts of mature coniferous forest. The critical 
habitat units identified in this proposal are all within these RUs.
    A reliable estimate of the numbers of owls throughout its entire 
range is not currently available. Using information gathered by Region 
3 of the FS, Fletcher (1990) calculated that 2,074 owls existed in 
Arizona and New Mexico in 1990. Based on more up-to-date information, 
we subsequently modified Fletcher's calculations and estimated a total 
of 2,160 owls throughout the United States (USDI 1991). However, these 
numbers are not considered reliable estimates of current population 
size for a variety of statistical reasons. While the number of owls 
throughout the range is currently not available, the Recovery Plan 
reports an estimate of owl sites based on 1990-1993 data. Surveys from 
1990 through 1993 indicate one or more owls have been observed at a 
minimum of 758 sites in the United States and 19 sites in Mexico. In 
addition, these surveys indicate that the species persists in most 
locations reported prior to 1989, with the exception of riparian 
habitats in the lowlands of Arizona and New Mexico, and all previously 
occupied areas in the southern States of Mexico. Owl surveys since 1993 
have provided new location data, increasing the knowledge of owl 
distribution and abundance. However, information summarized within the 
Recovery Plan was the last comprehensive effort to estimate the total 
number of owls.
    Mexican spotted owls nest, roost, forage, and disperse in a diverse 
array of biotic communities. Nesting habitat is typically in areas with 
complex forest structure or rocky canyons, and contains uneven-aged, 
multi-storied mature or old-growth stands that have high canopy closure 
(Ganey and Balda 1989, USDI 1991). In the northern portion of the range 
(southern Utah and Colorado), most nests are in caves or on cliff 
ledges in steep-walled canyons. Elsewhere, the majority of nests appear 
to be in Douglas fir (Pseudotsuga menziesii) trees (Fletcher and Hollis 
1994, Seamans and Gutierrez 1995). A wide variety of tree species is 
used for roosting; however, Douglas fir is the most commonly used 
species (Ganey 1988, Fletcher and Hollis 1994, Young et al. 1998). Owls 
generally use a wider variety of forest conditions for foraging than 
they use for nesting/roosting.
    Seasonal movement patterns of Mexican spotted owls are variable. 
Some individuals are year-round residents within an area, some remain 
in the same general area but show shifts in habitat use patterns, and 
some migrate considerable distances (20-50 kilometers (km)) (12-31 
miles (mi)) during the winter, generally migrating to more open habitat 
at lower elevations (Ganey and Balda 1989b, Willey 1993, Ganey et al. 
1998). The home-range size of Mexican spotted owls appears to vary 
considerably among habitats and/or geographic areas (USDI 1995), 
ranging in size from 261-1,487 ha (647-3,688 ac) for individuals birds, 
and 381-1,551 ha (945-3,846 ac) for pairs (Ganey and Balda 1989b, Ganey 
et al. 1999). Little is known about habitat use by juveniles dispersing 
soon after fledging. Ganey et al. (1998) found dispersing juveniles in 
a variety of habitats ranging from high-elevation forests to pinon-
juniper woodlands and riparian areas surrounded by desert grasslands.
    Mexican spotted owls do not nest every year. The owl's reproductive 
pattern varies somewhat across its range. In Arizona, courtship usually 
begins in March with pairs roosting together during the day and calling 
to each other at dusk (Ganey 1988). Eggs are typically laid in late 
March or early April. Incubation begins shortly after the first egg is 
laid, and is performed entirely by the female (Ganey 1988). The 
incubation period is about 30 days (Ganey 1988). During incubation and 
the first half of the brooding period, the female leaves the nest only 
to defecate, regurgitate pellets, or receive prey from the male, who 
does all or most of the hunting (Forsman et al. 1984, Ganey 1988). Eggs 
usually hatch in early May, with nestling owls fledging 4 to 5 weeks 
later, and then dispersing in mid-September to early October (Ganey 
1988).
    Little is known about the reproductive output for the spotted owl. 
It varies both spatially and temporally (White et al. 1995), but the 
subspecies demonstrates an average annual rate of about one young per 
pair. Based on short-term population and radio tracking studies, and 
longer-term monitoring studies, the probability of an adult owl 
surviving from 1 year to the next is 80 to 90 percent. Average annual 
juvenile survival is considerably lower, at 6 to 29 percent, although 
it is believed these estimates may be artificially low due to the high 
likelihood of permanent dispersal from the study area, and the lag of 
several years before marked juveniles reappear as territory holders and 
are detected as survivors through recapture efforts (White et al. 
1995). Little research has been conducted on the causes of mortality, 
but predation by great horned owls (Bubo virginianus), northern 
goshawks (Accipter gentilis),

[[Page 45338]]

red-tailed hawks (Buteo jamaicensis), and golden eagles (Aquila 
chrysaetos), as well as starvation, and collisions (e.g., with cars, 
powerlines), may all be contributing factors.
    Mexican spotted owls consume a variety of prey throughout their 
range, but commonly eat small- and medium-sized rodents such as 
woodrats (Neotoma spp.), peromyscid mice (Peromyscus spp.), and 
microtine voles (Microtus spp.). Owls also may consume bats, birds, 
reptiles, and arthropods (Ward and Block 1995). Each prey species uses 
a unique habitat, so that the differences in the owl's diet across its 
range likely reflect geographic variation in population densities and 
habitats of both the prey and the owl (Ward and Block 1995). Deer mice 
(P. maniculatus) are widespread in distribution in comparison to brush 
mice (P. boylei), which are restricted to drier, rockier substrates, 
with sparse tree cover. Mexican woodrats (N. mexicana) are typically 
found in areas with considerable shrub or understory tree cover and 
high log volumes or rocky outcrops. Mexican voles (M. mexicanus) are 
associated with high herbaceous cover, primarily grasses, whereas long-
tailed voles (M. longicaudus) are found in dense herbaceous cover, 
primarily forbs, with many shrubs and limited tree cover.
    Two primary reasons were cited for listing the owl as threatened in 
1993: (1) Historical alteration of its habitat as the result of timber 
management practices, specifically the use of even-aged silviculture, 
and the threat of these practices continuing; and (2) the danger of 
catastrophic wildfire. The Recovery Plan for the owl outlines 
management actions that land management agencies and Indian tribes 
should undertake to remove recognized threats and recover the spotted 
owl. This critical habitat designation is based on recovery needs 
identified in the Recovery Plan.

Previous Federal Actions

    The entire spotted owl species (Strix occidentalis) was classified 
in the January 6, 1989, Animal Notice of Review (54 FR 554) as a 
category 2 candidate species. A category 2 candidate species was one 
for which listing may have been appropriate, but for which additional 
biological information was needed to support a proposed rule.
    On December 22, 1989, we received a petition submitted by Dr. Robin 
D. Silver requesting the listing of the Mexican spotted owl as an 
endangered or threatened species. On February 27, 1990, we found that 
the petition presented substantial information indicating that listing 
may be warranted and initiated a status review. In conducting our 
review, we 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 February 20, 1991, we made a 
finding, based on the contents of the status review, that listing the 
Mexican spotted owl under 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). We published a proposed rule to list 
the Mexican spotted owl as threatened without critical habitat in the 
Federal Register on November 4, 1991 (56 FR 56344).
    We published a final rule listing 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, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. The Act's implementing 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, we found that, although 
considerable knowledge of owl habitat needs had been gathered in recent 
years, habitat maps in sufficient detail to accurately delineate these 
areas were not available. After the listing, we began gathering the 
data necessary to develop a proposed rule to designate critical 
habitat.
    On June 23, 1993, and again on August 16, 1993, we 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), we addressed the 
issues raised in the petitions and determined that the delisting 
petitions did not present substantial information indicating that 
delisting the Mexican spotted owl was warranted. The petitioners 
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. The 
district court held that the Coalition failed to show that the Service 
violated any procedural rules that amounted to more than harmless error 
and failed to demonstrate that the Service acted arbitrarily or 
capriciously in listing or refusing to delist the Mexican spotted owl. 
A judgment was issued by the district court denying the plaintiff's 
petition to delist the owl.
    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 owl (Dr. Robin Silver, et al. v. 
Bruce Babbitt, et al., CIV-94-0337-PHX-CAM). On October 6, 1994, the 
Court ordered us to ``* * * publish a proposed designation of critical 
habitat, including economic exclusion pursuant to 16 U.S.C. Sec. 
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 27, 1995. 
Under an extension granted by the court, we issued the proposed rule to 
designate critical habitat on December 7, 1994 (59 FR 63162).
    We prepared a draft economic analysis, 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. We 
published a final rule designating critical habitat for the Mexican 
spotted owl on June 6, 1995 (60 FR 29914).
    After the listing of the Mexican spotted owl, a Recovery Team was 
appointed by our Southwestern Regional Director to develop a Recovery 
Plan in March 1993. The Team 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 Recovery 
Plan, which was finalized in the fall of 1995. In 1996, the Southwest 
Region of the Forest Service incorporated elements of the Mexican 
Spotted Owl Recovery Plan within their Forest Plan Amendments.
    In 1996, the Tenth Circuit Court of Appeals in Catron County Board 
of Commissioners v. United States Fish and Wildlife Service, 75 F.3d 
1429, 1439 (10th Cir. 1996), ruled that the Service had to comply with 
the National Environmental Policy Act (NEPA) before designating 
critical habitat for two desert fish, the spikedace and loach minnow. 
In addition, a federal district court in New Mexico later set aside the

[[Page 45339]]

final rule designating critical habitat for the owl and forbid the 
Service from enforcing critical habitat for the owl (Coalition of 
Arizona-New Mexico Counties for Stable Economic Growth v. U.S. Fish and 
Wildlife Service, No. 95-1285-M Civil). As a result of these court 
rulings, we removed the critical habitat designation for the owl from 
the Code of Federal Regulations on March 25, 1998 (63 FR 14378).
    On March 13, 2000, the United States District Court for the 
District of New Mexico, (Southwest Center for Biological Diversity and 
Silver v. Babbitt and Clark, CIV 99-519 LFG/LCS-ACE), ordered us to 
propose critical habitat within 4 months of the court order, and to 
complete and publish a final designation of critical habitat for the 
Mexican spotted owl by January 15, 2001.

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, at 
the time it is listed in accordance with the Act, on which are found 
those physical or 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 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. 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 any 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).
    Section 4(b)(2) of the Act requires that we base critical habitat 
designation on the best scientific and commercial data available, 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation if we determine that 
the benefits of exclusion outweigh the benefits of including the areas 
as critical habitat, provided the exclusion will not result in the 
extinction of the species.
    Designation of critical habitat helps focus conservation activities 
by identifying areas that are essential to the conservation of the 
species, 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 to conservation. 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.
    Section 7(a)(2) of the Act requires Federal agencies to consult 
with us to ensure that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of a threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat. In 50 CFR 402.02, ``jeopardize the 
continued existence'' (of a species) is defined as engaging in an 
activity likely to result in an appreciable reduction in the likelihood 
of survival and recovery of a listed species. ``Destruction or adverse 
modification'' (of critical habitat) is defined as a direct or indirect 
alteration that appreciably diminishes the value of the entire critical 
habitat designation for the survival and recovery of the listed species 
for which critical habitat was designated. Thus, the definitions of 
``jeopardy'' to the species and ``adverse modification'' of critical 
habitat are nearly identical.
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create a management plan, 
establish numerical population goals, prescribe specific management 
actions (inside or outside of critical habitat), or directly affect 
areas not designated as critical habitat. Specific management 
recommendations for areas designated as critical habitat are most 
appropriately addressed in recovery, conservation and management plans, 
and through section 7 consultations and section 10 permits.

Primary Constituent Elements

    In accordance with section 3(5)(A)(I) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat designation on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constitute elements) that are 
essential to conservation of the species and that may require special 
management considerations or protection. Such requirements include, but 
are not limited to--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 essential to the conservation of 
the Mexican spotted owl include those physical and biological features 
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. Although the vegetative communities 
and structural attributes used by the owl vary across the range of the 
subspecies, they 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 
community throughout most portions of the subspecies' range (Skaggs and 
Raitt 1988; Ganey and Balda 1989, 1994; USDI 1995). Although the 
structural characteristics of Mexican spotted owl habitat varies 
depending on uses of the habitat (e.g., nesting, roosting, foraging) 
and variations in the plant communities over the range of the 
subspecies, some general attributes are common to the subspecies' life-
history requirements throughout its range.
    We determined the primary constituent elements for Mexican spotted 
owl from studies of their habitat requirements and the information 
provided in the Recovery Plan (USDI 1995 and references therein). Since 
owl habitat can include both canyon and forested areas, we identified 
primary constituent elements in both areas. The primary constituent 
elements that occur in mixed conifer, pine-oak, and riparian forest 
types, as described in the Recovery Plan, have the following 
attributes:

--High basal area of large diameter trees;
--Moderate to high canopy closure;
--Wide range of tree sizes suggestive of uneven-age stands;
--Multi-layered canopy with large overstory trees of various species;
--High snag basal area;
--High volumes of fallen trees and other woody debris;
--High plant species richness, including hardwoods;
--Adequate levels of residual plant cover to maintain fruits, seeds, 
and regeneration to provide for the needs of Mexican spotted owl prey 
species.


[[Page 45340]]


    For canyon habitat, the primary constituent elements include the 
following attributes:

--Cooler and often more humid conditions than the surrounding area;
--Clumps or stringers of trees and/or canyon wall containing crevices, 
ledges, or caves;
--High percent of ground litter and woody debris;
--Riparian or woody vegetation (although not at all sites).

    The forest habitat attributes listed above usually develop with 
increasing forest age, but their occurrence may vary by location, past 
forest management practices or natural 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.
    Canyon habitats used for nesting and roosting are typically 
characterized by cooler conditions found in steep, narrow canyons, 
often containing crevices, ledges, and/or caves. These canyons 
frequently contain small clumps or stringers of ponderosa pine, Douglas 
fir, white fir, and/or pinon-juniper. Deciduous riparian and upland 
tree species may also be present. Adjacent uplands are usually 
vegetated by a variety of plant associations including pinon-juniper 
woodland, desert scrub vegetation, ponderosa pine-Gambel oak, ponderosa 
pine, or mixed conifer. Owl habitat may also exhibit a combination of 
attributes between the forested and canyon types.

Criteria for Identifying 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. In proposing critical habitat for the owl, we reviewed the 
overall approach to the conservation of the species undertaken by 
local, State, tribal, and Federal agencies and private individuals and 
organizations since the species' listing in 1993. We also considered 
the features identified as necessary for recovery, as outlined in the 
species' Recovery Plan. We reviewed the previous proposed (59 FR 63162) 
and final critical habitat rules (60 FR 29914), new location data, 
habitat requirements and definitions described in the Recovery Plan, 
and habitat information provided by FS biologists as well as utilized 
our own expertise.
    The previous critical habitat designation included extensive use 
and evaluation of owl habitat and territory maps, vegetation maps, 
aerial photography, and field verification to identify areas for 
designation as critical habitat. Several qualitative criteria 
(currently suitable habitat, large contiguous blocks of habitat, 
occupied habitat, rangewide distribution, the need for special 
management or protection, adequacy of existing regulatory mechanisms) 
were considered when identifying critical habitat areas. The previous 
designation was done prior to the completion of the Recovery Plan for 
the Mexican Spotted Owl. For this proposal, we examined the previously 
designated critical habitat units, but relied primarily on the recovery 
plan to provide guidance. We expanded or combined previous units to 
comply with the Recovery Plan. In doing so we included wilderness areas 
and other areas where additional owls have been located. In addition, 
we included areas where owls could occur based on the presence of the 
appropriate topography, elevation, and habitat types (protected and 
restricted habitat areas as defined in the Recovery Plan).

Proposed Critical Habitat Designation

    The proposed critical habitat constitutes our best assessment of 
areas needed for the conservation of the owl and is based on the best 
scientific and commercial information available. The proposed areas are 
essential to the conservation of the species because they either 
currently support populations of the owl, or because they currently 
support the necessary habitat requirements for nesting, roosting, and 
foraging (see description of primary constituent elements). Thus, the 
proposed critical habitat is limited to areas within the identified RUs 
that meet the definition of protected and restricted habitat, as 
described in the Recovery Plan. Although a recovery plan is not a 
regulatory document, its management recommendations were considered in 
developing this proposed critical habitat rule. Excluded from the 
designation are those areas in restricted habitat that do not contain 
the primary constituent elements.
    The Mexican Spotted Owl Recovery Plan provides for three levels of 
habitat management: Protected areas, restricted areas, and other forest 
and woodland types. Protected habitat includes all known owl sites, all 
areas within mixed conifer or pine-oak types with slopes greater than 
40 percent where timber harvest has not occurred in the past 20 years, 
and all reserved (designated Wilderness areas) lands. The Recovery Plan 
recommends that protected areas, or Protected Activity Centers (PACs), 
be designated around known owl sites. A PAC would include an area of at 
least 243 ha (600 ac) that includes the best nesting and roosting 
habitat in the area. Based on available data, the recommended size for 
a PAC includes, on average, 75 percent of the foraging area of an owl.
    Restricted habitat includes mixed conifer forest, pine-oak forest, 
and riparian areas outside of protected areas described above (i.e., 
areas that do not currently contain owls). These areas are essential to 
the conservation of the species because the Recovery Plan identifies 
these areas as providing additional owl habitat for future occupancy. 
In restricted habitat, only areas that contain the primary constituent 
elements are designated as critical habitat. These areas, however, are 
important to owl conservation and should continue to be managed to 
attain the primary constituent elements.
    Other forest and woodland types (ponderosa pine, spruce-fir, pinon-
juniper, and aspen) are not expected to provide nesting or roosting 
habitat for the Mexican spotted owl (except when associated with rock 
canyons). Thus, these other forest and woodland types are not 
considered to be critical habitat unless specifically delineated within 
PACs. Although the Recovery Plan does not provide owl-specific 
guidelines to managing these areas, these and other habitat types may 
provide important foraging and dispersal habitat for the owl, 
particularly if adjacent to protected or restricted areas. Therefore, 
these areas should be managed for landscape diversity, mimicking 
natural disturbance patterns, incorporating natural variation in 
stands, and retaining special features such as snags and large trees 
(USDI 1995). We anticipate that species concerns in these areas can be 
adequately addressed under the Act through section 7 consultation, the 
section 9 prohibition against taking listed species, the section 10 
habitat conservation planning process, and through other appropriate 
State and Federal statutes and regulations.
    Critical habitat units are being proposed in portions of 
Bernalillo, Catron, Cibola, Colfax, Grant, Hidalgo, Lincoln, Los 
Alamos, McKinley, Mora, Otero, Rio Arriba, San Juan, San Miguel, 
Sandoval, Santa Fe, Sierra, Socorro, Taos, Torrance, Valencia Counties 
in

[[Page 45341]]

New Mexico; Apache, Cochise, Coconino, Gila, Graham, Greenlee, 
Maricopa, Mohave, Navajo, Pima, Pinal, Santa Cruz, Yavapai Counties in 
Arizona; Carbon, Emery, Garfield, Grand, Iron, Kane, San Juan, 
Washington, Wayne Counties in Utah; and Custer, Douglas, El Paso, 
Fremont, Huerfano, Jefferson, Pueblo, and Teller Counties in Colorado, 
on the maps. Precise legal descriptions of each critical habitat unit 
are on file at the New Mexico Ecological Services Field Office.
    With the exception of some tribal lands (See discussion under 
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act, below) and low-density areas, this 
proposed designation includes all habitat on Federal and tribal lands 
used by currently known populations of Mexican spotted owls. The 
inclusion of both occupied and currently unoccupied areas in this 
critical habitat proposal is in accordance with section 3(5)(A)(I) of 
the Act, which provides that areas outside the geographical area 
currently occupied by the species may meet the definition of critical 
habitat upon a determination that they are essential for the 
conservation of the species. We find that the inclusion of currently 
unoccupied areas identified in this rule as having one or more 
constituent elements is essential for conservation of the owl.
    We did not designate some areas that are known to have widely 
scattered owl sites, low population densities, and/or marginal habitat 
quality, which are not considered to be essential to this species' 
survival or recovery. These areas include Dinosaur National Park in 
northwest Colorado; Mesa Verde National Park, Ute Mountain Ute 
Reservation, Southern Ute Reservation, other Forest Service and Bureau 
of Land Management land in southwest Colorado; and the Guadalupe and 
Davis Mountains in southwest Texas. Isolated mountains on the Arizona 
Strip, such as Mount Trumbull, were also not included due to their 
small size, isolation, and lack of information about owls in the area.
    State and private lands are not included in this proposed 
designation. The overwhelming majority of Mexican spotted owl records 
are from Federal and Tribal lands, indicating that those lands are 
essential to the species' recovery. Some of the State (79,030 ha 
(195,288 ac)) and private (257,872 ha (637,216 ac)) parcels within the 
critical habitat boundaries likely support mid-and higher-elevation 
forests that are capable of providing nesting and roosting habitat. 
However, given that the majority of the owl's range occurs on Federal 
and tribal lands, we do not feel that State and private lands are 
essential to the recovery of the subspecies and should not be 
designated as critical habitat.
    Given the above, we believe that Mexican spotted owl conservation 
can best be achieved by management of Federal and Tribal lands, and 
that State and private lands are not essential to the species' 
recovery. Where feasible, proposed critical habitat boundaries were 
drawn so as to exclude State and private lands. However, the short 
amount of time allowed by the court to complete this proposed 
designation did not allow us to conduct the fine-scale mapping 
necessary to physically exclude the smaller and widely scattered State 
and private parcels that remain within the proposed boundaries. Those 
areas under State or private ownership are therefore excluded from the 
proposed designation by definition.
    The approximate gross area of proposed critical habitat by State 
and land ownership is shown in Table 1. Actual proposed critical 
habitat is limited to areas within the proposed boundaries that meet 
the definition of protected and restricted habitat in the Recovery 
Plan. Therefore, the area actually proposed as critical habitat is 
considerably less than the gross acreage indicated in Table 1.

[[Page 45342]]



                                                           Table 1.--Critical Habitat By Land Ownership and State in Hectares (Acres)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             Arizona                 New Mexico                Colorado                   Utah                    Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Forest Service.....................................................    1,330,339 (3,287,339)    1,688,295 (4,171,869)        152,096 (375,837)        111,133 (274,616)    3,281,863 (8,109,661)
Bureau of Land Management..........................................           4,903 (12,115)           5,879 (14,528)         60,255 (148,894)      666,270 (1,646,388)      737,307 (1,821,925)
National Park Service..............................................        322,069 (795,850)          12,618 (31,179)                        0        260,346 (643,328)      595,033 (1,470,357)
Department of Defense..............................................           9,728 (24,038)            1,682 (4,157)          17,966 (44,394)                        0          29,376 (72,589)
Bureau of Reclamation..............................................                        0                        0                        0        109,610 (270,853)        109,610 (270,853)
Unknown Federal \a\................................................                        0                        0                        0        156,207 (385,995)        156,207 (385,995)
Tribal.............................................................        342,503 (846,344)        165,333 (408,548)                        0         40,983 (101,272)      548,819 (1,356,164)
                                                                    ----------------------------------------------------------------------------------------------------------------------------
    Total..........................................................    2,009,542 (4,630,281)    1,873,807 (4,630,281)        230,317 (569,125)    1,344,549 (3,322,452)   5,458,215 (13,487,544)
    Total critical habitat units...................................                    37\b\                    31\b\                        2                        5                      72
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes land identified in the current Utah land ownership file as National Recreation Area or National Recreation Area/Power Withdrawal; Federal land ownership is unclear (may be NPS,
  BOR, or other).
\b\ Counts three critical habitat units that overlap two states.


[[Page 45343]]

Effect of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act require Federal agencies to confer 
with us on any action that is likely to jeopardize the continued 
existence of a proposed species or to result in destruction or adverse 
modification of proposed critical habitat. Conference reports provide 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The conservation 
recommendations in a conference report are advisory.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
a biological opinion that is prepared according to 50 CFR 402.14, as if 
critical habitat were designated. We may adopt the formal conference 
report as a biological opinion if the critical habitat is designated, 
if no significant new information or changes in the action alter the 
content of the opinion (see 50 CFR 402.10(d)).
    If a species is subsequently listed or critical habitat is 
designated, then section 7(a)(2) requires Federal agencies to ensure 
that activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with us. Regulations at 50 CFR 402.16 also 
require Federal agencies to reinitiate consultation in instances where 
we have already reviewed an action for its effects on a listed species 
if critical habitat is subsequently designated. Consequently, some 
Federal agencies may request reinitiation of consultation or 
conferencing with us on actions for which formal consultation has been 
completed, if those actions may affect designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy or the destruction or adverse modification 
of critical habitat, we also provide reasonable and prudent 
alternatives to the project, if any are identifiable. Reasonable and 
prudent alternatives are defined at 50 CFR 402.02 as alternative 
actions identified during consultation that can be implemented in a 
manner consistent with the intended purpose of the action, that are 
consistent with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid the likelihood of jeopardizing 
the continued existence of listed species or resulting in the 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Section 4(b)(8) of the Act requires us to describe in any proposed 
or final regulation that designates critical habitat a description and 
evaluation of those activities involving a Federal action that may 
adversely modify such habitat or that may be affected by such 
designation. When determining whether any of these activities may 
adversely modify critical habitat, we base our analysis on the effects 
of the action on the entire critical habitat area and not just on the 
portion where the activity will occur. Adverse effects on constituent 
elements or segments of critical habitat generally do not result in an 
adverse modification determination unless that loss, when added to the 
environmental baseline, is likely to appreciably diminish the 
capability of the critical habitat to satisfy essential requirements of 
the species. In other words, activities that may destroy or adversely 
modify critical habitat include those that alter the primary 
constituent elements (defined above) to an extent that the value of 
critical habitat for both the survival and recovery of the Mexican 
spotted owl is appreciably reduced.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery (50 CFR 402.02). Actions likely to ``destroy or adversely 
modify'' critical habitat are those that would appreciably reduce the 
value of critical habitat for the survival and recovery of the listed 
species (50 CFR 402.02).
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned when the habitat is occupied by the species. The purpose of 
designating critical habitat is to contribute to a species' 
conservation, which by definition equates to survival and recovery. 
Section 7 prohibitions against the destruction or adverse modification 
of critical habitat apply to actions that would impair survival and 
recovery of the 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 any existing recovery plan 
for the species concerned. 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 the Mexican spotted owl and proposed 
critical habitat. Among these agencies are the Forest Service, Bureau 
of Indian Affairs, Bureau of Land Management, Department of Defense, 
Department of Energy, National Park Service, and Federal Highway 
Administration. We have reviewed and continue to review numerous 
activities proposed within the range of the Mexican spotted owl that 
are currently the subject of formal or informal section 7 
consultations. Actions on Federal lands that we reviewed in past 
consultations on effects to the owl include land management plans; land 
acquisition and

[[Page 45344]]

disposal; road construction, maintenance, and repair; timber harvest; 
livestock grazing and management; fire/ecosystem management projects 
(including prescribed natural and management ignited fire); powerline 
construction and repair; campground and other recreational 
developments; and access easements. We expect that the same types of 
activities will be reviewed in section 7 consultation if critical 
habitat is designated.
    Actions that would be expected to both jeopardize the continued 
existence of the Mexican spotted owl and destroy or adversely modify 
its critical habitat would include those that significantly and 
detrimentally alter the species' habitat over an area large enough that 
the likelihood of the Mexican spotted owls' persistence and recovery, 
either range-wide or locally, is significantly reduced. Thus, the 
likelihood of an adverse modification or jeopardy determination would 
depend on the baseline condition of the recovery unit and the baseline 
condition of the entire designated critical habitat area. Some recovery 
units, such as the Southern Rocky Mountains-New Mexico and Southern 
Rocky Mountains-Colorado RUs, support fewer owls and owl habitat than 
other RUs and, therefore, may be much less able to withstand habitat-
altering activities than RUs with large contiguous areas of habitat 
supporting higher densities of spotted owls.
    Actions not likely to destroy or adversely modify critical habitat 
include activities that are implemented in compliance with the Recovery 
Plan, such as thinning trees less than 9 inches in diameter in PACs; 
fuels reduction to abate the risk of catastrophic wildfire; ``personal 
use'' commodity collection such as fuelwood, latillas and vigas, and 
Christmas tree cutting; livestock grazing in upland habitats; and most 
recreational activities including hiking, camping, fishing, hunting, 
cross-country skiing, off-road vehicle use, and various activities 
associated with nature appreciation. We do not expect any restrictions 
to those activities as a result of critical habitat designation. In 
addition, 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.
    If you have questions regarding whether specific activities will 
likely constitute destruction or adverse modification of critical 
habitat, contact the Field Supervisor, New Mexico Ecological Services 
Field Office (see ADDRESSES section). If you would like copies of the 
regulations on listed wildlife or have questions about prohibitions and 
permits, contact the U.S. Fish and Wildlife Service, Division of 
Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 87103 
(telephone 505-248-6920; facsimile 505-248-6788).

Economic Analysis

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available and consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We based this 
proposal on the best available scientific information, including the 
recommendations in the species' recovery plan. We will utilize the 
economic analysis and our analysis of other relevant impacts, and take 
into consideration all comments and information submitted during the 
public hearing and comment period, to make a final critical habitat 
designation. We may exclude areas from critical habitat upon a 
determination that the benefits of such exclusions outweigh the 
benefits of specifying such areas as critical habitat. However, we 
cannot exclude these areas from critical habitat when their exclusion 
will result in the extinction of the species. We are preparing a draft 
economic analysis that will be completed and available for public 
review and comment during the comment period for this proposal. Send 
your requests for copies of the economic analysis to the New Mexico 
Ecological Services Field Office (see ADDRESSES section).

American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act

    In accordance with the Presidential Memorandum of April 29, 1994, 
we believe that, to the maximum extent possible, tribes should be the 
governmental entities to manage their lands and tribal trust resources. 
To this end, we support tribal measures that preclude the need for 
Federal conservation regulations. We provide technical assistance to 
Indian tribes who wish assistance in developing and expanding tribal 
programs for the management of healthy ecosystems so that Federal 
conservation regulations, such as designation of critical habitat, on 
tribal lands are unnecessary.
    The Presidential Memorandum of April 29, 1994, also requires us to 
consult with the tribes on matters that affect them, and section 
4(b)(2) of the Act requires us to gather information regarding the 
designation of critical habitat and the effects thereof from all 
relevant sources, including the tribes. Recognizing a government-to-
government relationship with tribes and our Federal trust 
responsibility, we will consult with the Indian tribes that might be 
affected by the designation of critical habitat. We have already held 
two meetings with the Mescalero Apache Tribe.
    Due to the time constraints imposed by the court order, we will 
make every effort to consult with the tribes during the comment period 
for this proposal to gain information on--(1) possible effects if 
critical habitat were designated on Indian reservation lands; and (2) 
possible effects on tribal resources resulting from designation of 
critical habitat on non-tribal lands. We will meet with each 
potentially affected tribe to ensure that consultation on critical 
habitat issues occurs in a timely manner.

Designation of Critical Habitat on Tribal Lands

    Section 3(5) of the Act defines critical habitat, in part, as areas 
within the geographical area occupied by the species ``on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection.'' In our previous critical 
habitat proposal for the owl, we identified lands of the White Mountain 
Apache, Jicarilla Apache, Mescalero Apache, San Carlos Apache, Southern 
Ute, Ute Mountain Ute, and Navajo Nation Tribes as containing habitat 
that may be appropriate for designation of critical habitat. However, 
after reevaluating the available data, we no longer feel that 
designating all of these areas is appropriate.
    Lands of the Mescalero Apache, San Carlos Apache, and Navajo Nation 
have areas that meet the definition of critical habitat with respect to 
the Mexican spotted owl, and portions of those lands are proposed as 
critical habitat. As provided under section 4(b)(2) of the Act, we are 
soliciting information on the possible economic and other impacts of 
critical habitat designation, and we will continue to work with the 
tribes in developing voluntary measures adequate to conserve Mexican 
spotted owls on tribal lands. We understand the Navajo Nation is 
nearing completion of a Forest Management Plan and the Mescalero Apache 
Tribes are working on Mexican Spotted Owl Habitat

[[Page 45345]]

Management Plans. Critical habitat proposed on the San Carlos Apache 
Reservation does not include areas covered by the Tribe's Malay Gap 
Management Plan. We reviewed this plan in 1996 and determined it to be 
adequate for the management of the owl. The San Carlos Apache Tribe is 
developing similar management plans for other management units on their 
lands. If any of these tribes submit management plans, we will consider 
whether these plans provide adequate special management or protection 
for the species, or we will weigh the benefits of including versus the 
benefits of excluding these areas under section 4(b)(2). We will use 
this information in determining which, if any, tribal land should be 
included in the final designation as critical habitat for the owl.
    Since our previous critical habitat designation, we learned that 
the Southern Ute Reservation has not supported spotted owls 
historically, and our assessment revealed that the Reservation does not 
support habitat essential to the species' conservation. Thus, lands of 
the Southern Ute Reservation do not meet part (I) of the definition of 
critical habitat stated above; we are, therefore, not proposing to 
designate those lands as critical habitat.
    Lands of the Ute Mountain Ute Tribe are not being proposed either. 
Due to the low population density and isolation from other occupied 
areas in Colorado, New Mexico, and Utah, the owls in southwestern 
Colorado are not believed to be essential for the survival or recovery 
of the species. Thus, these lands do not meet part (I) of the 
definition of critical habitat stated above; we are, therefore, not 
proposing to designate those lands as critical habitat.
    The White Mountain Apache and Jicarilla Apache Tribes completed 
Mexican Spotted Owl Habitat Management Plans prior to the previous 
critical habitat designation. Since those plans are still valid and in 
use, we believe that the lands of the White Mountain Apache and 
Jicarilla Apache Tribes are not in need of special management 
considerations and protection, and therefore do not meet part (II) of 
the definition of critical habitat. Thus, we are not proposing critical 
habitat in those areas.
    In addition, other tribal lands including the Picuris, Taos, and 
Santa Clara Pueblos in New Mexico and the Havasupai Reservation in 
Arizona are adjacent to critical habitat units proposed in this rule 
and may have potential owl habitat. However, the available information, 
although limited, on the habitat quality and current or past owl 
occupancy in these areas does not indicate that these areas meet the 
definition of critical habitat. Therefore, we are not proposing to 
designate these lands as critical habitat.

Effects on Tribal Trust Resources From Critical Habitat Designation on 
Non-Tribal Lands

    We do not anticipate that proposal of critical habitat on non-
tribal lands will result in any impact on tribal trust resources or the 
exercise of tribal rights. However, in complying with our tribal trust 
responsibilities, we must communicate with all tribes potentially 
affected by the designation. Therefore, we are soliciting information 
from the tribes and will arrange meetings with the tribes during the 
comment period on potential effects to them or their resources that may 
result from critical habitat designation.

Public Comments Solicited and Public Hearings

    We intend to make any final action resulting from this proposal to 
be as accurate and as effective as possible. Therefore, we are 
soliciting comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of excluding areas will outweigh the benefits of 
including areas as critical habitat. Specifically we ask if there is 
adequate special management and protection in place on any lands to 
allow us not to designate these lands as critical habitat. Further, we 
ask whether all areas identified in the Recovery Plan should be 
designated as critical habitat;
    (2) Specific information on the amount and distribution of Mexican 
spotted owl habitat, and what habitat is essential to the conservation 
of the species and why;
    (3) Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families; and
    (5) Economic and other values associated with designating critical 
habitat for the Mexican spotted owl, such as those derived from 
nonconsumptive uses (e.g., hiking, camping, birding, enhanced watershed 
protection, increased soil retention, ``existence values,'' and 
reductions in administrative costs).
    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make this proposed rule easier to understand including answers to 
questions such as the following: (1) Are the requirements in the 
document clearly stated? (2) Does the proposed rule contain technical 
language or jargon that interferes with the clarity? (3) Does the 
format of the proposed rule (grouping and order of sections, use of 
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the 
description of the proposed rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the document? (5) What 
else could we do to make the proposed rule easier to understand?
    Our practice is to make comments that we receive on this 
rulemaking, including names and home addresses of respondents, 
available for public review during regular business hours. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by law. 
In some circumstances, we would withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish for us to 
withhold your name and/or address, you must state this prominently at 
the beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, including individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of such review is to ensure listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
copies of this proposed rule immediately following publication in the 
Federal Register to these peer reviewers. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat.

[[Page 45346]]

    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Given the large geographic extent covered by this 
proposal, the high likelihood of multiple requests, and the need to 
publish a final determination by December 15, 2000, we have scheduled 
six public hearings. We will hold the hearings in Santa Fe, New Mexico, 
on August 14; Las Cruces, New Mexico, on August 15; Tucson, Arizona, on 
August 16, Flagstaff, Arizona, on August 17; Colorado Springs, 
Colorado, on August 21, 2000; and Cedar City, Utah, on August 23. We 
will hold the hearings at the following locations:
     Santa Fe, New Mexico: Morgan Hall, New Mexico State Land 
Office, 310 Old Santa Fe Trail, 6:30 to 9:30 p.m.
     Las Cruces, New Mexico: Dona Ana Room, Corbett Center 
Student Union, New Mexico State University, 6:30 to 9:30 p.m.
     Tucson, Arizona: Louis Rich Theater, Tucson Convention 
Center, 260 South Church Street, 6:30 to 9:30 p.m.
     Flagstaff, Arizona: Flagstaff High School, Main 
Auditorium, 400 West Elm Street, 6:30 to 9:30 p.m.
     Colorado Springs, Colorado: Pikes Peak Community College, 
Cafeteria, 5675 South Academy Boulevard, 6:30 to 9:30 p.m.
     Cedar City, Utah: Southern Utah University, Hunter 
Conference Center, The Great Hall, 351 West Center Street, 6:30 to 9:30 
p.m.

Announcements for the public hearings will be made in local newspapers.
    Written comments submitted during the comment period receive equal 
consideration with those comments presented at a public hearing.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and has been reviewed by the Office 
of Management and Budget. We are preparing a draft analysis of this 
proposed action, which will be available during the comment period for 
this proposed rule, to determine the economic consequences of 
designating the specific areas as critical habitat. The availability of 
the draft economic analysis will be announced in the Federal Register 
and in local newspapers so that it is available for public review and 
comments during the 60-day comment period for this proposed rule.
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit analysis is 
not required for purposes of Executive Order 12866. The Mexican spotted 
owl was listed as a threatened species in 1993. Since that time, we 
have conducted, and will continue to conduct, formal and informal 
section 7 consultations with other Federal agencies to ensure that 
their actions would not jeopardize the continued existence of the 
Mexican spotted owl.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency (see Table 2 below). Section 7 requires Federal agencies to 
ensure that they do not jeopardize the continued existence of the 
species. Based upon our experience with the species and its needs, we 
believe that any Federal action or authorized action that could 
potentially cause an adverse modification of the proposed critical 
habitat would currently be considered as ``jeopardy'' to the species 
under the Act. Accordingly, we do not expect the designation of 
currently occupied areas as critical habitat to have any incremental 
impacts on what actions may or may not be conducted by Federal agencies 
or non-Federal persons that receive Federal authorization or funding. 
Non-Federal persons who do not have a Federal ``sponsorship'' of their 
actions are not restricted by the designation of critical habitat 
(however, they continue to be bound by the provisions of the Act 
concerning ``take'' of the species).

                    Table 2.--Impacts of Designating Critical Habitat for Mexican Spotted Owl
----------------------------------------------------------------------------------------------------------------
                                             Activities potentially
                                          affected by the designation
                                             of critical habitat in      Activities potentially affected by the
        Categories of activities             areas occupied by the         designation of critical habitat in
                                            species (in addition to                 unoccupied areas
                                           those activities affected
                                           from listing the species)
----------------------------------------------------------------------------------------------------------------
 Federal Activities Potentially Affected  None.......................  Activities such as those affecting
 \1\.                                                                   protected, restricted, and canyon
                                                                        habitats by the Forest Service, Bureau
                                                                        of Indian Affairs, Bureau of Land
                                                                        Management, Department of Defense,
                                                                        Department of Energy, National Park
                                                                        Service, and Federal Highway
                                                                        Administration; vegetative management
                                                                        projects (including timber harvest,
                                                                        timber salvage, and tree density control
                                                                        activities such as thinning, insect and
                                                                        disease suppression activities, snag
                                                                        removal, and certain fire/ecosystem
                                                                        projects such as prescribed natural and
                                                                        management ignited fire); livestock
                                                                        grazing in riparian habitat; land
                                                                        acquisition and disposal; oil and gas
                                                                        development; mining and mineral
                                                                        exploration; military maneuvers; road
                                                                        development, maintenance, and repair;
                                                                        utility construction and repair;
                                                                        construction of campgrounds and other
                                                                        recreational developments; and access
                                                                        easements.
Private or other non-Federal Activities   None.......................  Activities that require a Federal action
 Potentially Affected \2\.                                              (permit, authorization, or funding) and
                                                                        that involve such activities as removing
                                                                        or destroying Mexican spotted owl
                                                                        habitat (as defined in the primary
                                                                        constituent elements discussion),
                                                                        whether by mechanical or other means
                                                                        (e.g., timber harvest, right-of-way
                                                                        access, road construction, development,
                                                                        etc.), including indirect effects and
                                                                        that appreciably decrease habitat value
                                                                        or quality.
----------------------------------------------------------------------------------------------------------------
\1\ Activities initiated by a Federal agency.
\2\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
  funding.


[[Page 45347]]

    Designation of unoccupied areas as critical habitat may have 
impacts on what actions may or may not be conducted by Federal agencies 
or non-Federal persons that receive Federal authorization or funding. 
In the case of the owl, however, we are already consulting with Federal 
agencies on activities that may affect the owl within the Recovery 
Units. Since the proposed critical habitat units all occur within the 
Recovery Units, we do not anticipate any additional impact due to 
designating unoccupied habitat within the Recovery Units. However, we 
will evaluate any potential impact through our economic analysis ( see 
Economic Analysis section of this rule).
    (b) This rule will not create inconsistencies with other agencies' 
actions. Federal agencies have been required to ensure that their 
actions do not jeopardize the continued existence of the Mexican 
spotted owl since its listing in 1993. The prohibition against adverse 
modification of critical habitat is not expected to impose any 
additional restrictions to those that currently exist in areas of 
proposed critical habitat. Because of the potential for impacts on 
other Federal agency's activities, we will continue to review this 
proposed action for any inconsistencies with other Federal agency's 
actions.
    (c) The proposed rule, if made final, will not significantly impact 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. Federal agencies are currently 
required to ensure that their activities do not jeopardize the 
continued existence of the species, and, as discussed above, we do not 
anticipate that the adverse modification prohibition (resulting from 
critical habitat designation) will have any incremental effects in 
areas of proposed critical habitat.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Endangered Species Act.

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

    In the draft economic analysis, we will determine if designation of 
critical habitat will have a significant effect on a substantial number 
of small entities. As discussed under Regulatory Planning and Review 
above, this rule is not expected to result in any restrictions in 
addition to those currently in existence for areas of proposed critical 
habitat.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    We do not anticipate that our economic analysis will show that 
designation of critical habitat will cause (a) an annual effect on the 
economy of $100 million or more, (b) any increases in costs or prices 
for consumers; individual industries; Federal, State, or local 
government agencies; or geographic regions, or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.

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

    In accordance with the Unfunded Mandates Reform Act:
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
involving Federal funds, permits, or other authorized activities must 
ensure that their actions will not destroy or adversely modify critical 
habitat. However, as discussed above in the Regulatory Planning and 
Review section, these actions are currently subject to equivalent 
restrictions through the listing protections of the species, and no 
further restrictions are anticipated in areas of proposed critical 
habitat.
    b. This rule will not produce a Federal mandate on State, local, or 
tribal governments or the private sector of more than $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This proposed rule, if made final, will not ``take'' 
private property. However, we will evaluate whether the value of 
private property is altered by it being designated as critical habitat 
on a case-by-case basis. Critical habitat designation is applicable to 
Federal lands and to private lands only if a Federal nexus, through 
funding, permitting or licencing of activities, exists. We do not 
designate private lands as critical habitat unless the areas are 
essential to the conservation of a species.

Federalism

    In accordance with Executive Order 13132, this proposed rule, if 
made final, will not affect the structure or role of States, and will 
not have direct, substantial, or significant effects on States. A 
Federalism assessment is not required. As previously stated, critical 
habitat is applicable only to Federal lands or to non-Federal lands 
only when a Federal nexus exists.
    In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from and coordinated 
development of this critical habitat proposal with appropriate State 
resource agencies in Arizona, New Mexico, Colorado, and Utah. In 
addition, Arizona and Utah have representatives on the recovery team 
for this species. We will continue to coordinate any future designation 
of critical habitat for Mexican spotted owl with the appropriate State 
agencies.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor 
will review the final determination for this proposal. We will make 
every effort to ensure that the final determination contains no 
drafting errors, provides clear standards, simplifies procedures, 
reduces burden, and is clearly written such that litigation risk is 
minimized.

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

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act (NEPA)

    Our position is that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996). However, when the range of the species 
includes States within the Tenth Circuit, such as that of the Mexican 
spotted owl, pursuant to the Tenth

[[Page 45348]]

Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA 
analysis for critical habitat designation. Send your requests for 
copies of the draft environmental assessment for this proposal to the 
New Mexico Ecological Services Field Office (see ADDRESSES section).

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the New Mexico Ecological Services Field 
Office (see ADDRESSES section).

Authors

    The primary authors of this notice are the New Mexico Field Office 
staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

    1. The authority 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.

    2. Amend Sec. 17.11(h), by revising the entry for ``Owl, Mexican 
spotted'' under ``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Birds
 
                   *                  *                  *                  *                  *                  *                  *
Owl, Mexican spotted.............  Strix occidentalis    U.S.A. (AZ, CO, NM,  Entire.............  T                       494  Sec.  17.95           NA
                                    lucida.               TX, UT), Mexico.                                                              (b)
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(b) 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) Birds.
* * * * *

Mexican Spotted Owl (Strix Occidentalis Lucida)

    Critical habitat is limited to areas within the proposed 
boundaries that meet the definition of protected (600 acres around 
known owl sites, mixed conifer or pine-oak forests with slopes 
greater than 40 percent where timber harvest has not occurred in the 
past 20 years, and all reserved (designated wilderness areas) lands) 
and restricted (mixed conifer forest, pine-oak forest, and riparian 
areas outside of protected areas) habitat as described in the 
Recovery Plan. Restricted habitat is designated only where primary 
constituent elements can be found. Private and state lands within 
mapped boundaries are not designated as critical habitat. Critical 
habitat proposed on the San Carlos Apache Reservation does not 
include areas covered by the Tribe's Malay Gap Management Plan. The 
lands of the White Mountain Apache, Jicarilla Apache, Ute Mountain 
Ute and Southern Ute Tribe are not being designated. Critical 
habitat units for the States of Arizona, Colorado, New Mexico, and 
Utah are depicted on the maps below. Larger maps for all four States 
and maps of critical habitat units in the State of New Mexico are 
available at the New Mexico Ecological Services Field Office, 2105 
Osuna N.E., Albuquerque, New Mexico 87113, telephone (505) 346-2525. 
For the States of Arizona, Colorado, and Utah, maps of the critical 
habitat units specific to each State are available at the following 
U.S. Fish and Wildlife Service offices--Arizona Ecological Services 
Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 
85021, telephone (602) 640-2720; Colorado State Sub-Office, 764 
Horizon Drive South, Annex A, Grand Junction, Colorado 81506, 
telephone (970) 243-2778; and Utah Ecological Services Field Office, 
Lincoln Plaza, 145 East 1300 South, Suite 404, Salt Lake City, Utah 
84115, telephone (801) 524-5001.
    1. Critical habitat units are depicted for portions of 
Bernalillo, Catron, Cibola, Colfax, Grant, Hidalgo, Lincoln, Los 
Alamos, McKinley, Mora, Otero, Rio Arriba, San Juan, San Miguel, 
Sandoval, Santa Fe, Sierra, Socorro, Taos, Torrance, and Valencia 
Counties in New Mexico; Apache, Cochise, Coconino, Gila, Graham, 
Greenlee, Maricopa, Mohave, Navajo, Pima, Pinal, Santa Cruz, and 
Yavapai Counties in Arizona; Carbon, Emery, Garfield, Grand, Iron, 
Kane, San Juan, Washington, and Wayne Counties in Utah; and Custer, 
Douglas, El Paso, Fremont, Huerfano, Jefferson, Pueblo, and Teller 
Counties in Colorado, on the maps. Precise legal descriptions of 
each critical habitat unit are on file at the New Mexico Ecological 
Services Field Office.
    2. Within these areas, the primary constituent elements for 
Mexican spotted owl include, but are not limited to, those habitat 
components providing for nesting, roosting, or foraging activities. 
Primary constituent elements are provided in canyons and mixed 
conifer, pine-oak, and riparian habitat types that typically support 
nesting and/or roosting. These primary constituent elements include 
mixed conifer, pine-oak, and riparian forest types, as described in 
the Recovery Plan, that have the following attributes: high basal 
area of large-diameter trees; moderate to high canopy closure; wide 
range of tree sizes suggestive of uneven-age stands; multi-layered 
canopy with large overstory trees of various species; high snag 
basal area; high volumes of fallen trees and other woody debris; 
high plant species richness, including hardwoods; and adequate 
levels of residual plant cover to maintain fruits, seeds, and 
regeneration to provide for the needs of Mexican spotted owl prey 
species. For canyon habitats, the primary constituent elements 
include the following attributes: cooler and often higher humidity 
than the surrounding area; clumps or stringers of ponderosa pine, 
Douglas-fir, white fir, and/or pinon-juniper trees and/or canyon 
wall containing crevices, ledges, or caves; high percent of ground 
litter and woody debris; and riparian or woody vegetation (although 
not at all sites).

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    Dated: July 14, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-18407 Filed 7-20-00; 8:45 am]
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