[Federal Register Volume 68, Number 51 (Monday, March 17, 2003)]
[Rules and Regulations]
[Pages 12611-12612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6291]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF03


Endangered and Threatened Wildlife and Plants; Reopening of 
Comment Period for Final Rule To List the Contiguous United States 
Distinct Population Segment of the Canada Lynx

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; notice of reopening of comment period.

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SUMMARY: The U.S. Fish and Wildlife Service (Service), in response to 
the December 26, 2002, memorandum opinion and order of the United 
States District Court for the District of Columbia, in the case of 
Defenders of Wildlife v. Norton, Civil Action No. 00-2996 (GK) and 
pursuant to the Endangered Species Act of 1973, as amended (Act), 
provides this notice opening a comment period on the contiguous United 
States Distinct Population Segment (DPS) of the Canada lynx (Lynx 
canadensis) (lynx). This comment period has been opened to acquire 
information regarding issues identified by the Court that we need to 
consider in the above-referenced case. Moreover, we invite comment on 
specific information that has become available since the listing of the 
lynx that pertains to the issues we will consider on remand. Upon close 
of the comment period, the Service will evaluate the status of the lynx 
in the contiguous United States considering the range of the species.

DATES: Comments must be postmarked or e-mailed by April 16, 2003.

ADDRESSES: Written comments and materials concerning this notice should 
be sent to the Field Supervisor, U.S. Fish and Wildlife Service, 
Montana Field Office, 100 N. Park Avenue, Suite 320, Helena, Montana 
59601; or e-mail [email protected]. Comments and material received will 
be available for public inspection, by appointment, during normal 
business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Lori Nordstrom, Biologist, Montana 
Field Office, (see ADDRESSES section) (telephone 406/449-5225 extension 
208; facsimile 406/449-5339; e-mail [email protected]). The 
Internet is the best mechanism for obtaining the specific information 
that has become available since the listing of the lynx that we intend 
to consider for this remanded decision. This information can be 
retrieved from the Internet at http://mountain-prairie.fws.gov/endspp/lynx. If you do not have access to the Internet and would like copies 
of these documents, please call the Montana Field Office at the above 
phone number.

SUPPLEMENTARY INFORMATION:

Background

    On March 24, 2000 (65 FR 16052), the Service published a final rule 
listing the contiguous United States DPS of the lynx as threatened 
under the Act. As described in the final rule, the range of the lynx 
where listed includes portions of the States of Colorado, Idaho, Maine, 
Michigan, Minnesota, Montana, New Hampshire, New York, Oregon, Utah, 
Vermont, Washington, Wisconsin, and Wyoming.
    After the final rule was published, plaintiffs in the case of 
Defenders of Wildlife v. Norton, Civil Action No. 00-2996 (GK)(D.D.C.) 
challenged the listing of the lynx as threatened, alleging violations 
of the Act and the Administrative Procedure Act (5 U.S.C. 551 et seq.). 
Plaintiffs argued that the Service acted arbitrarily and capriciously 
when it--(1) Failed to treat the four lynx geographic regions as 
separate DPSs, (2) determined that the lack of guidance for 
conservation of lynx in National Forest Land and Resource Plans and 
Bureau of Land Management Land Use Plans is the single factor 
threatening the contiguous United States DPS of lynx, (3) failed to 
designate critical habitat for the lynx, and (4) determined that the 
Northeast, Great Lakes, and Southern Rockies do not constitute a 
significant portion of the range of the DPS.
    On December 26, 2002, the Court issued its memorandum opinion and 
order, deciding that the Service's determination that ``[c]ollectively, 
the Northeast, Great Lakes and Southern Rockies do not constitute a 
significant portion of the range of the DPS'' must be set aside and 
``remanded to the agency for further consideration of the lynx's status 
under the ESA consistent with the analysis set forth in the 
accompanying memorandum opinion.'' The Court explained that the 
Service's determination about the four regions was ``counterintuitive 
and contrary'' to the plain meaning of the Act's phrase ``significant 
portion of the range.'' The

[[Page 12612]]

Court required us to complete a new determination in 180 days. The 
Court did not address the plaintiffs' issues concerning the threats and 
the DPSs. The Court also ordered the Service to ``undertake prompt 
rulemaking'' in order to designate critical habitat for lynx and 
ordered injunctive relief directed at section 7 consultation.
    This notice addresses the issues we will consider on remand. This 
notice does not address critical habitat for the lynx. We will request 
public comment on a proposed rule for critical habitat when it is 
published.

Significant Portion of Its Range

    The Act defines the term ``threatened species'' as ``any species 
which is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range.'' The Act 
generally defines the term ``endangered species'' as a species which is 
in danger of extinction throughout all or a significant portion of its 
range. In the final rule, we found that ``[c]ollectively, the 
Northeast, Great Lakes and Southern Rockies do not constitute a 
significant portion of the range of the DPS'' and listed the species as 
threatened in 14 States. As directed by the Court, we are re-evaluating 
that determination.
    Therefore, our re-evaluation will include an analysis of--(1) The 
quantity of lynx habitat and (2) the quality of lynx habitat in its 
range. In assessing habitat quality for lynx, we examine a variety of 
elements, such as primary prey (snowshoe hare) abundance, forest type, 
forest structure, snow conditions, denning habitat, inherent habitat 
patchiness, and connectivity with larger lynx populations and habitat 
in Canada. Lynx reproduction and recruitment into the population are 
indicators of habitat quality. Some qualitative information addressing 
some of these elements is contained in the administrative record for 
the final rule listing the lynx. In the brief time available to us, we 
will also re-examine available data on habitat quantity and any other 
factors relevant to the new determinations required by the court.
    Listing decisions under the Act must be based on the best 
scientific information available. Additional information has become 
available since the lynx was listed in March 2000 that will be helpful 
to our analysis of what constitutes the ``significant portion'' of the 
lynx's range.

Public Comments Solicited

    We are reopening the comment period on our determination concerning 
the significant portion of the range of the lynx. In particular, we are 
seeking comment on--(1) The quantity of lynx habitat and (2) the 
quality of lynx habitat. We also invite comments on other elements 
relevant to our determination concerning the significant portion of the 
range of the lynx. Our re-assessment will not be limited solely to the 
information identified in this notice or available on our website.
    We intend to examine the following information that has become 
available since the listing of the lynx in March 2000 and may be 
pertinent to our analysis of a significant portion of the range for 
lynx--(1) Research on the historical occurrence and habitat ecology of 
lynx in eastern North America, (2) research on lynx movements, 
survival, habitat use, reproduction, and interspecific competition in 
Maine, (3) evidence of recent lynx occurrence and reproduction in 
Minnesota, (4) a report on historic lynx occurrence in Michigan, (5) 
research on the ecology of lynx in western Montana, (6) information 
from lynx reintroductions into Colorado, (7) information from the 
National Lynx Survey, (8) any available estimates of amount of lynx 
habitat on Federal lands, and (9) any additional information that may 
be applicable to our determination concerning the significant portion 
of the range issue that States, Tribes, or others have not already 
submitted to us prior to the listing in March 2000. This information 
will be included in the administrative record for this remanded 
determination.
    The information identified above can be retrieved from the Internet 
at http://mountain-prairie.fws.gov/endspp/lynx. The Internet is the 
best method for making this information rapidly available. If you 
cannot access this information through the Internet, please call the 
Montana Field Office (see ADDRESSES section). Your written comments on 
the information identified above, or any additional information to help 
us assess the significant portion of the range for lynx, must be 
postmarked or emailed by the date specified above under DATES to the 
Service's Montana Field Office (see ADDRESSES section). The comment 
period is necessarily short because of the time given by the Court (180 
days from the decision) to complete our remanded decision.

Author

    The author of this notice is Lori Nordstrom, U.S. Fish and Wildlife 
Service, Montana Field Office (see ADDRESSES section).

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

    Dated: March 10, 2003.
Steve Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 03-6291 Filed 3-14-03; 8:45 am]
BILLING CODE 4310-55-P