[Federal Register Volume 69, Number 68 (Thursday, April 8, 2004)]
[Proposed Rules]
[Pages 18770-18792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7941]



[[Page 18769]]

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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; 12-month Finding for a 
Petition To List the West Coast Distinct Population Segment of the 
Fisher (Martes pennanti ); Proposed Rule

  Federal Register / Vol. 69, No. 68 / Thursday, April 8, 2004 / 
Proposed Rules  

[[Page 18770]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 12-month Finding 
for a Petition to List the West Coast Distinct Population Segment of 
the Fisher (Martes pennanti )

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding for a petition to list the West Coast distinct 
population segment of the fisher (Martes pennanti) under the Endangered 
Species Act of 1973, as amended. After review of all available 
scientific and commercial information, we find that the petitioned 
action is warranted, but precluded by higher priority actions to amend 
the Lists of Endangered and Threatened Wildlife and Plants. Upon 
publication of this 12-month petition finding, this species will be 
added to our candidate species list. We will develop a proposed rule to 
list this population pursuant to our Listing Priority System.

DATES: The finding announced in this document was made on April 2, 
2004. Comments and information may be submitted until further notice.

ADDRESSES: You may send data, information, comments, or questions 
concerning this finding to the Field Supervisor (Attn: FISHER), 
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
2800 Cottage Way, Room W-2605, Sacramento, CA 95825 or via fax at 916/
414-6710. You may inspect the petition, administrative finding, 
supporting information, and comments received during normal business 
hours by appointment at the above address.

FOR FURTHER INFORMATION CONTACT: Jesse Wild or Arnold Roessler at the 
above address (telephone: 916/414-6600; fax: 916/414-6710; electronic 
mail: [email protected]). In the event that our Internet connection is not 
functional, please submit your comments by the alternate methods 
mentioned above.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that, for any petition 
to revise the List of Threatened and Endangered Species that contains 
substantial scientific and commercial information that listing may be 
warranted, we make a finding within 12 months of the date of the 
receipt of the petition on whether the petitioned action is: (a) Not 
warranted, or (b) warranted, or (c) warranted but that the immediate 
proposal of a regulation implementing the petitioned action is 
precluded by other pending proposals to determine whether any species 
is threatened or endangered, and expeditious progress is being made to 
add or remove qualified species from the List of Threatened and 
Endangered Species. Section 4(b)(3)(C) of the Act requires that a 
petition for which the requested action is found to be warranted but 
precluded shall be treated as though resubmitted on the date of such 
finding, i.e., requiring a subsequent finding to be made within 12 
months. Such 12-month findings are to be published promptly in the 
Federal Register.
    On December 5, 2000, we received a petition dated November 28, 
2000, to list a distinct population segment (DPS) of the fisher, 
including portions of California, Oregon, and Washington, as endangered 
pursuant to the Act, and to concurrently designate critical habitat for 
this distinct population segment. A court order was issued on April 4, 
2003, by the U.S. District Court, Northern District of California, that 
required us to submit for publication in the Federal Register a 90-day 
finding on the November 2000 petition (Center for Biological Diversity, 
et al. v. Norton, et al., No. C 01-2950 SC). On July 10, 2003, we 
published a 90-day petition finding (68 FR 41169) that the petition 
provided substantial information that listing may be warranted and 
initiated a 12-month status review. Through a stipulated order, the 
court set a deadline of April 3, 2004, for the Service to make a 12-
month finding under 16 U.S.C. 1533 (b)(3)(B).

Taxonomy

    The fisher is classified in the order Carnivora, family Mustelidae, 
subfamily Mustelinae, and is the largest member of the genus Martes 
(Anderson 1994). The only other North American member of the genus 
Martes is the American marten (M. americana). The fisher (Martes 
pennanti Erxleben 1777) is the only extant species in its subgenus 
Pekania.
    Goldman (1935) recognized three subspecies of fisher, although he 
stated they were difficult to distinguish. Both Grinnell et al. (1937) 
and Hagmeier (1959) examined specimens from across the range of the 
fisher and concluded that differences in skull morphology or pelage 
were not sufficient to support recognition of separate subspecies. Hall 
(1981) retained all three subspecies in his compilation of North 
American mammals, as did Anderson (1994), but neither addressed 
Hagmeier's conclusion that the subspecies should not be recognized 
(Powell 1993). Several authors address genetic variation in fisher 
populations in their northern and eastern ranges (Williams et al. 1999, 
2000; Kyle et al. 2001) and in the west (Drew et al. 2003; Aubry and 
Lewis 2003; Wisely et al. in litt. 2003). These analyses found patterns 
of population subdivision similar to the earlier described subspecies 
(Drew et al. 2003). Drew et al. (2003) stated that, although it is not 
clear whether Goldman's (1935) subspecific designations are 
taxonomically valid, ''* * * it is clear (based on genetic results) 
that population subdivision is occurring within the species, especially 
among populations in the western USA and Canada.''

Description

    The fisher is light brown to dark blackish brown with the face, 
neck, and shoulders sometimes being slightly gray. The chest and 
underside often has irregular white patches. The fisher has a long body 
with short legs and a long bushy tail. At 6.6 to 13.2 pounds (lbs) (3 
to 6 kilograms (kg)), male fishers weigh about twice as much as females 
(3.3 to 5.5 lbs; 1.5 to 2.5 kg). Males range in length from 35 to 47 
inches (in) (90 to 120 centimeters (cm)) while females range from 29 to 
37 in (75 to 95 cm) in length. The fishers from the Pacific States may 
weigh less than fishers in the eastern United States (Seglund 1995; 
Dark 1997; Golightly 1997; Aubry and Lewis 2003). Fishers are estimated 
to live up to 10 years (Powell 1993).

Distribution and Status

    Fishers occur in the northern coniferous and mixed forests of 
Canada and the northern United States, from the mountainous areas in 
the southern Yukon and Labrador Provinces in Canada southward to 
central California and Wyoming, the Great Lakes and Appalachian 
regions, and New England (Graham and Graham 1994; Powell 1994). The 
fisher's range was reduced dramatically in the 1800s and early 1900s 
through overtrapping, predator and pest control, and alterations of 
forested habitats by logging, fire, and farming (Douglas and Strickland 
1987; Powell 1993; Powell and Zielinski 1994; Lewis and Stinson 1998). 
Since the 1950s, fishers have recovered in some of the central and 
eastern portions of their historic range in the United States as a

[[Page 18771]]

result of trapping closures, changes in forested habitats (e.g., forest 
regrowth in abandoned farmland), and reintroductions (Brander and Books 
1973; Powell and Zielinski 1994). However, fishers are still absent 
from their former range southeast of the Great Lakes (Gibilisco 1994). 
Grinnell et al. (1937) estimated extremely low population numbers for 
the fisher in California at a time when trapping for the fur trade had 
greatly reduced populations of furbearing animals. Although it is 
possible that fisher populations recovered somewhat immediately 
following the trapping prohibitions in the 1930s and 40s, Powell and 
Zielinski (1994) more recently note population declines for fisher 
populations in the west. Fishers are believed to be extirpated from the 
lower mainland of British Columbia; however, they may still occupy the 
higher elevations of these areas in low densities (BC Species and 
Ecosystems Explorer 2003). In the Pacific States, fishers were 
historically more likely to be found in low to mid-elevation forests up 
to 8,200 feet (ft) (2,500 meters (m)) (Grinnell et al. 1937; Schempf 
and White 1977; Aubry and Houston 1992). In recent decades, the 
scarcity of detections in Washington, Oregon, and the northern Sierra 
Nevada indicates that the fisher may be extirpated or reduced to very 
low numbers in much of this area (Aubry and Houston 1992; Zielinski et 
al. 1995; Aubry and Lewis 2003).

Washington

    The fisher historically occurred both east and west of the Cascade 
Crest in Washington (Scheffer 1938; Aubry and Houston 1992). Lewis and 
Stinson (1998) conclude that, ``Based on habitat, the historical range 
of fishers in Washington probably included all the wet and mesic forest 
habitats at low to mid-elevations. The distribution of trapping reports 
and fisher specimens collected in Washington confirms that fishers 
occurred throughout the Cascades, Olympic Peninsula, and probably 
southwestern and northeastern Washington.'' Aubry and Houston (1992) 
compared current and historical records of fishers in Washington to 
determine their distribution in relation to major vegetation and 
elevation zones. In total, they found 88 reliable records, dating from 
1955 to 1991. West of the Cascades, fishers occurred from 328 to 5,900 
ft (100 to 1800 m), with most records from below 3,280 ft (1,000 m). On 
the east slope of the Cascades where precipitation is lower, fishers 
were recorded from 1,970 to 7,200 ft (600 to 2,200 m) (Aubry and 
Houston 1992). Similar to elsewhere in the range, the upper elevational 
limit may be determined by snow depth (Krohn et al. 1997). Based on a 
lack of recent sightings or trapping reports, the fisher is considered 
to be extirpated or reduced to scattered individuals in Washington 
(Aubry and Houston 1992; Lewis and Stinson 1998).

Oregon

    Aubry and Houston (1992) noted that most fisher records for 
Washington occurred in the western hemlock and sitka spruce forest 
zones. Given that these forest zones occupy large portions of 
northwestern Oregon (Franklin and Dyrness 1988), it is likely that the 
fisher historically occurred in this part of the State. Based on 
extensive camera and track plate surveys, Lewis and Stinson (1998) 
concluded that the fisher is greatly reduced in Oregon. Based on 
extensive inquiry and review of records, Aubry and Lewis (2003) found 
that extant fisher populations in Oregon are restricted to two disjunct 
and genetically isolated populations in the southwestern portion of the 
State: one in the northern Siskiyou Mountains of southwestern Oregon 
and one in the southern Cascade Range. The fishers in the Siskiyou 
Mountains near the California border are probably an extension of the 
northern California population (Aubry and Lewis 2003). The population 
in the southern Cascade Range is reintroduced and is descended from 
fishers that were translocated to Oregon from British Columbia and 
Minnesota (Aubry and Lewis 2003). The Oregon Cascade Range population 
is separated from known populations in British Columbia by more than 
404 miles (mi) (650 kilometers (km)) (Aubry and Lewis 2003).

California

    In eastern California, the fisher historically ranged throughout 
the Sierra Nevada, from Greenhorn Mountain in northern Kern County 
northward to the southern Cascades at Mount Shasta (Grinnell et al. 
1937). In western California, it ranged from the Klamath Mountains and 
north Coast Range near the Oregon border southward to Lake and Marin 
Counties (Grinnell et al. 1937). Krohn et al. (1997) note that the map 
of fisher distributions by Grinnell et al. (1937) suggests that fishers 
may have been less common in the central Sierra Nevada than elsewhere 
in California during the early 1900s, but it is unknown whether this 
distribution was the historical condition or reflects human effects on 
forests and fishers prior to their assessment. The map was based on the 
trapping records of one 5-year period prior to which there was already 
concern that trapping had dangerously decreased the population of 
fisher in California (Grinnell et al. 1937).
    Substantial efforts have been made in recent years to assess the 
status of fishers and other forest carnivores in California using 
systematic grids of baited track and camera stations (Zielinski et al. 
1995, 1997a, 1997b, 2000; Zielinski and Stauffer 1996; Zielinski 1997). 
Recent surveys indicate that fishers appear to occupy less than half of 
the range they did in the early 1900s in California, and this 
population has divided into two remnant populations that are separated 
by approximately 260 mi (420 km) (Zielinski et al. 1995), almost four 
times the species' maximum dispersal distance as reported by York 
(1996) for fishers in Massachusetts. One population is located in 
northwestern California and the other is in the southern Sierra Nevada 
Mountains. Since 1990, there have generally been no detections outside 
these areas except for one in 1995 in Mendocino County and one in 1995 
in Plumas County (CDFG 2002, updated November 13, 2003).
    Failure to detect fishers in the central and northern Sierra 
Nevada, despite reports of their presence there by Grinnell et al. 
(1937) and reports from the 1960s collected by Schempf and White 
(1977), suggests that the fisher population in this region has 
declined, effectively isolating fishers in the southern Sierra Nevada 
from fishers in northern California (Truex et al. 1998; Lamberson et 
al. 2000). However, prior to the recent development of a rigorous 
fisher survey protocol, differences in the type and quality of data 
available over the previous 60-year period make interpretation of 
distributional changes difficult (Zielinski et al. 1995).

Population Size

    Although reductions in the fisher's distribution in the Pacific 
States are well documented (Aubry and Lewis 2003; Gibilisco 1994; 
Powell and Zielinski 1994), accurate information on fisher densities 
and abundance outside the northeastern United States is very limited. 
There have been no good population estimates for fisher populations in 
California, Oregon, and Washington, so it is unknown precisely how many 
fishers exist. Estimates of fisher abundance and vital rates (e.g., 
survival, reproduction) are very difficult to obtain (Douglas and 
Strickland 1987) and may vary widely based on habitat composition and 
prey availability (York 1996). In addition, the assumptions of

[[Page 18772]]

many methods for estimating populations (e.g., equal trapability, no 
learned trap response, sufficient trapability to yield adequate sample 
sizes) may not be valid for fishers (Powell and Zielinski 1994). 
Consequently, only a few estimates of local fisher population density 
are available for the Pacific States and British Columbia, and are 
summarized here.
    In British Columbia, densities of fishers are estimated to be 
between 1 and 1.54 fishers per 38.6 mi \2\ (100 km \2\) in the highest 
quality habitats in the province (Weir 2003). Using the area of each 
habitat capability rank within the extent of occurrence of fishers in 
British Columbia, the late-winter population for the province is 
estimated to be between 1,113 and 2,759 fishers (Weir 2003). In a 
preliminary progress report of fisher studies on the Hoopa Valley 
Indian Reservation in the Klamath mountain range (Humboldt County, 
California), Higley et al. (1998) report high capture numbers and small 
home ranges, some of which overlap each other, indicating that 
densities in this 25 mi \2\ (65 km \2\) study area may be very high 
relative to those in the rest of the occupied West Coast range. In 
their analysis of two fisher studies in California, Zielinski et al. 
(in press 2003a) provided a rough estimate of approximately 5 female 
fishers per 38.6 mi \2\ (100 km \2\) for their 154 mi \2\ (400 km) 
north coast study area (in the Six Rivers and Shasta-Trinity National 
Forests of southeastern Humboldt and southwestern Trinity Counties), 
whereas they estimated approximately 8 females per 100 km \2\ in their 
108 mi \2\ (280 km \2\) southern Sierra Nevada study area (in the 
Sequoia National Forest in Tulare County). For the purpose of modeling 
population viability, Lamberson et al. (2000) estimated that there were 
between 100 and 500 individuals in the southern Sierra Nevada fisher 
population. Based on trapping records from the 1920s, Grinnell and 
colleagues (1937) provided a dire estimate of 1 fisher per 100 mi \2\, 
or 300 in California. However, although Grinnell et al. employed 
accepted methodologies at the time they conducted their research, we 
believe that their population estimate for California is incorrect by 
modern standards due to the lack of a significant sample size, survey 
bias, and inadequate knowledge of the historical baseline.
    Despite the lack of precise empirical data on fisher numbers in the 
western states, the relative reduction in the range of the fisher on 
the West Coast, the lack of detections or sightings over much of its 
historical distribution, and the high degree of genetic relatedness 
within some populations (esp., native fishers in California) (Drew et 
al. 2003), indicate that it is likely extant fisher populations are 
small.

Diet

    The fisher is an opportunistic predator with a diverse diet that 
includes birds, squirrels, mice, shrews, voles, reptiles, insects, 
carrion, vegetation, and fruit (Powell 1993; Martin 1994; Zielinski et 
al. 1999; Zielinski and Duncan, in press 2003). Fishers hunt 
exclusively in forested habitats and generally avoid openings (Earle 
1978; Rosenberg and Raphael 1986; Powell 1993; Buskirk and Powell 1994; 
Jones and Garton 1994; Seglund 1995; Dark 1997). Being dietary 
generalists, fishers tend to forage in areas where prey is both 
abundant and vulnerable to capture (Powell 1993).

Reproduction

    Except during the breeding season, fishers are solitary animals. 
The breeding season for the fisher is generally from late February to 
the end of April (Leonard 1986; Douglas and Strickland 1987; Powell 
1993; Frost and Krohn 1997). Birth occurs nearly 1 year after 
copulation, due to delayed implantation in which the embryos remain in 
a state of arrested development for approximately 10 months. Arthur and 
Krohn (1991) and Powell (1993) speculate that this system allows adults 
to breed in a time when it is energetically efficient, while still 
giving kits adequate time to develop before winter. Raised entirely by 
the female, kits are completely dependent at birth and weaned by 10 
weeks (Powell 1993). The mother becomes increasingly active as kits 
grow in order to provide enough food (Arthur and Krohn 1991; Powell 
1993), and females may move their kits periodically to new dens (Arthur 
and Krohn 1991). At 1 year, kits will have developed their own home 
ranges (Powell 1993). Fishers have a low annual reproductive capacity, 
and reproductive rates may fluctuate widely from year to year (Truex et 
al. 1998).

Home Range Size

    A home range is an area repeatedly traveled by an individual in its 
normal activities of feeding, drinking, resting, and traveling. Fishers 
have large home ranges and male home ranges are considerably larger 
than those of females (Buck et al. 1983; Truex et al. 1998). Fisher 
home range sizes across North America vary from 3,954 to 30,147 acres 
(ac) (16 to 122 km \2\ for males and from 988 to 13,096 ac (4 to 53 km 
\2\ for females (Powell and Zielinski 1994; Lewis and Stinson 1998). 
However, Beyer and Golightly (1996) reported that male home ranges in 
northern California may be as large as 31,629 ac (128 km\2\).
    Truex et al. (1998) compared fisher home range sizes in three study 
areas: the Klamath Mountains (Shasta-Trinity National Forest, the North 
Coast Ranges), Six Rivers National Forest, and the southern Sierra 
Nevada (Sequoia National Forest). They found the largest home range 
sizes in the eastern Klamath study area in northern California where 
habitat quality was generally considered poor. A preliminary summary of 
an unpublished study conducted in coastal redwood forests in the Coast 
Ranges of northwestern California indicates female home range sizes of 
790 to 2050 ac (3.2 km \2\ to 8.3 km \2\) (Joel Thompson unpublished 
data; Neal Ewald, pers. comm. 2003), which is somewhat larger than 
range sizes reported by other researchers for the species in North 
America. Zielinski et al. (in press 2003a) found that females had home 
ranges that were almost three times larger in their northern California 
study area in the Coast Ranges than in their southern Sierra Nevada 
study area. They too suggest that this difference in home range size is 
a result of better quality habitats in the southern Sierra Nevada, 
which are occupied by a higher density of animals within a smaller area 
of suitable habitat (Zielinski et al., in press 2003a). Based on 
northeastern fisher home range sizes, Allen (1983) assumed that a 
minimum of 62 mi \2\ (161 km \2\ of potentially suitable and connected 
habitat must be present before an area can sustain a population of 
fishers. However, Allen's estimates of amount of habitat required to 
support a fisher population may be an underestimate when applied to 
western forests, where male home ranges have been found to be somewhat 
larger (Beyer and Golightly 1996).

Dispersal

    Dispersal (movement away from the natal home range) is the primary 
mechanism for the spread of a population. Arthur et al. (1993) reported 
an average maximum dispersal distance of 9.3 and 10.7 mi (14.9 and 17.3 
km) for females and males, respectively (range = 4.7 to 14.0 mi (7.5 to 
22.6 km) for females and 6.8 to 14.3 mi (10.9 to 23.0 km) for males) in 
a population in Maine with high trapping mortality and low density. In 
areas with high mortality and low density, young fishers may not have 
to disperse as far in order to find unoccupied home ranges (Arthur et 
al. 1993). York (1996) reported dispersal distances for juvenile male 
and female fishers averaging 20 mi (33

[[Page 18773]]

km) (range = 6 to 66 mi; 10 to 107 km) for a high-density population in 
Massachusetts. Based on field observation and microsatellite genotype 
analyses of the southern Cascades fisher population, Aubry et al. (USDA 
Forest Service, Pacific Northwest Research Station, in press 2003) 
found empirical evidence of male-biased juvenile dispersal and female 
philopatry (the drive or tendency of an individual to return to, or 
stay in, its home area) in fishers, which may have a direct bearing on 
the rate at which the fisher may be able to colonize formerly occupied 
areas within its historical range.

Habitat

    Assessment of habitat relationships of fisher in current western 
U.S. forests is complicated by broad-scale changes in forest structure 
and composition over the past century. Grazing, wildfire suppression, 
and timber harvest have resulted in dramatic changes in forest 
ecosystems, including reduction of large tree component, increased 
dominance of shade-tolerant conifer species, increased stand density, 
and reduced structural diversity (McKelvey and Johnson 1992; Agee 1993; 
Skinner 1995; Chang 1996; Norman 2003). These effects vary among forest 
ecosystems, but generally are more pronounced in drier interior forests 
of the eastern Cascades, Sierra Nevada, and eastern Klamath Mountain 
ranges. The degree to which currently-described habitat relationships, 
particularly at broader scales, existed under historical conditions is 
unknown.
    According to Buskirk and Powell (1994), the physical structure of 
the forest and prey associated with forest structures are thought to be 
the critical features that explain fisher habitat use, rather than 
specific forest types. Powell (1993) stated that forest type is 
probably not as important to fishers as the vegetative and structural 
aspects that lead to abundant prey populations and reduced fisher 
vulnerability to predation, and that they may select forests that have 
low and closed canopies. In the Klamath and north coast regions of 
California, Carroll et al. (1999) also found a strong association with 
high levels of tree canopy cover, tree size class, and percent conifer. 
Within a given region, the distribution of fishers is likely limited by 
elevation and snow depth (Krohn et al. 1997), and fisher are unlikely 
to occupy forest habitats in areas where elevation and snow depth act 
to limit their movements. However, in mid-elevation areas with 
intermediate snow depth, fishers may use dense forest patches with 
large trees because the overstory closure increases snow interception 
(Weir 1995a).
    In a track-plate study conducted on private timberlands in the 
redwood-Douglas-fir transition zone of the Coast Ranges of northwestern 
California, Klug (1997) detected fishers on 238 occasions at 26 of 40 
(65 percent) survey segments located in second-growth Douglas-fir and 
redwood. Fishers were detected more frequently than expected (based on 
availability) in areas at higher elevations, in stands where Douglas-
fir was the dominant or co-dominant vegetation type, and with greater 
amounts of hardwoods. Klug (1997) found no relation between fisher 
occurrence and stand age or old-growth habitats; however there was less 
than 2 percent old-growth on his study area. The mean canopy cover for 
all stations Klug sampled was 94.7 percent, and mean stand age was 42.6 
years, an age which, in productive lowland redwood and Douglas-fir 
habitats, often correlates with large-tree conditions. During 
subsequent studies in this area (Ewald, pers. comm. 2003), 24 
individual fisher were captured (10 males, 14 females). Nine of 11 
adult females showed signs of reproduction, and 9 natal and maternal 
dens were located. In their adjacent study area in Redwood National and 
State Parks with coastal forests dominated by redwood, Slauson et al. 
(2003) found that redwood was the dominant overstory and understory 
species where fishers were detected; Douglas-fir was dominant at sites 
where they were not. This study area had 38 percent old-growth habitat; 
however, fisher were detected more often in second-growth redwood 
stands. In contrast to forests further north and further inland, the 
milder temperature and higher humidity in these coastal areas may 
create suitable habitat conditions, at least for foraging, in younger 
forests.

Fragmentation

    A number of studies have shown that the fisher avoids areas with 
little forest cover or significant human disturbance and conversely 
prefers large areas of contiguous interior forest (Coulter 1966; Kelly 
1977; Buck 1982; Mullis 1985; Rosenberg and Raphael 1986; Arthur et al. 
1989a; Powell 1993; Jones and Garton 1994; Seglund 1995; Dark 1997).
    Rosenberg and Raphael (1986) assessed forest fragmentation in 
northwestern California and its effect on fishers. Their study shows a 
significant positive association with a plot's distance to a clearcut, 
and significant negative associations with a stand's length of edge, 
degree of insulation (defined as ``the percentage of its perimeter that 
was clearcut edge''), percent clearcut, and total edge. Rosenberg and 
Raphael (1986) state, ``Among the species suspected of being most 
sensitive to forest fragmentation in our study, only the fisher and 
spotted owl were also associated with old-growth forests.'' They show a 
significant positive association between fisher presence and forest 
stand area, detecting fishers more frequently in stands over 247 ac 
(100 ha) (70 percent frequency of occurrence) and stands of 126 to 247 
ac (51 to 100 ha) (90 percent frequency of occurrence) than in smaller 
stands; fishers were detected in 55 percent of stands that were 52 to 
124 ac (21 to 50 ha), in 30 percent of stands that were 27 to 49 ac (11 
to 20 ha), and in 17 percent of stands under 25 ac (10 ha).
    The fisher's need for overhead cover is very well-documented. Many 
researchers report that fishers select stands with continuous canopy 
cover to provide security cover from predators (de Vos 1952; Coulter 
1966; Kelly 1977; Arthur et al. 1989; Weir and Harestad 1997, 2003). 
Fishers may use forest patches with large trees because the overstory 
closure increases snow interception (Weir 1995a). Forested areas with 
higher density overhead cover provide the fisher increased protection 
from predation and lower the energetic costs of traveling between 
foraging sites. Fishers probably avoid open areas because in winter 
open areas have deeper, less supportive snow which inhibits travel 
(Leonard 1980; Raine 1983; Krohn et al. 1997), and because they are 
more vulnerable to potential predators without forest cover (Powell 
1993). Furthermore, preferred prey species may be more abundant or 
vulnerable in areas with higher canopy closure (Buskirk and Powell 
1994).
    Several studies have shown that fishers are associated with 
riparian areas (Buck 1982; Jones 1991; Aubry and Houston 1992; Seglund 
1995; Dark 1997; Zielinski et al. 1997c; Zielinski et al. in press 
2003b, in press 2003a). Riparian forests are in some cases protected 
from logging and are generally more productive, thus having the dense 
canopy closure, large trees and general structural complexity 
associated with fisher habitat (Dark 1997). According to Seglund 
(1995), riparian areas are important to fishers because they provide 
important rest site elements, such as broken tops, snags, and coarse 
woody debris.

Composition of Home Ranges

    Mazzoni (2002) measured habitat composition within the home ranges 
of 11 fisher in the southern Sierra Nevada. Home range areas averaged 
24.8 percent

[[Page 18774]]

coverage by ``late-successional'' (greater than 50 percent canopy 
cover, greater than 24 in (61 cm) diameter) conifer forest habitat 
(range 15.0 to 32.1 percent). The mean percent of home range area with 
dense (greater than 50 percent canopy cover) conifers of all sizes was 
53.6 percent (range 34.9 to 76 percent). Also in the southern Sierra 
Nevada, Zielinski et al. (in press 2003a) found that home ranges of 12 
fishers consisted of 12.8 percent (SD=10.9) large tree (greater than 24 
in (61 cm) ) conditions. Intermediate tree size classes (12-24 in dbh), 
dense (greater than 60 percent) canopy closure, and Sierran Mixed 
Conifer forest type composed the greatest proportion of the home ranges 
studies (60.7, 66.3, and 40.1 percent, respectively).
    In the North Coast Range of northern California, Zielinski et al. 
(in press 2003a) found that home ranges of nine fishers were dominated 
by mid-seral Douglas-fir and white fir (42.8 percent); home ranges 
included 14 percent (SD=13.36) late-successional Douglas-fir on average 
and 13.97 percent true fir (SD=10.23), on average.

Resting and Denning Habitat

    Powell and Zielinski (1994) and Zielinski et al. (2003b) suggest 
that habitat suitable for resting and denning sites may be more 
limiting for fishers than foraging habitat. Numerous studies have 
documented that fishers in the western United States utilize stands 
with certain forest characteristics for resting and denning such as 
large trees and snags, coarse woody-debris, dense canopy closure and 
multiple-canopy layers, large diameter hardwoods, and steep slopes near 
water (Powell and Zielinski 1994; Seglund 1995; Dark 1997; Truex et al. 
1998; Self and Kerns 2001; Aubry et al. 2002; Carroll et al. 1999; 
Mazzoni 2002; Zielinski et al. in press 2003b).
    Rest sites have structures that provide protection from unfavorable 
weather and predators. Fishers also use rest sites as protected 
locations to consume prey following a successful foraging bout 
(Zielinski, pers. comm.). Re-use of rest sites is relatively low (14 
percent: Zielinski et al. in press 2003b), indicating that habitats 
providing suitable resting structures need to be widely distributed 
throughout home ranges of fishers (Powell and Zielinski 1994; Truex et 
al. 1998), and spatially interconnected with foraging habitats.

Rest Site--Stand Characteristics

    The most influential variables affecting rest site selection in 
California fisher populations include maximum tree sizes and dense 
canopy closure, but other features are important to rest site choice as 
well, such as large diameter hardwoods, large conifer snags, and steep 
slopes near water (Zielinski et al. in press 2003b). Fishers select 
areas as rest sites where structural features are most variable but 
where canopy cover is least variable, suggesting that resting fishers 
place a premium on continuous overhead cover but prefer resting 
locations that also have a diversity of sizes and types of structural 
elements (Zielinski et al. in press 2003b). Seglund (1995) found that a 
majority of fisher rest sites (83 percent) were further than 328 ft 
(100 m) from human disturbance and Dark (1997) found that fishers used 
and rested in areas with less habitat fragmentation and less human 
activity. Characteristics of forest stands containing rest sites on 
industrial timberlands were similar to those reported elsewhere in 
northern California. Fishers in Shasta County used rest sites in stands 
of the largest tree size classes available, with mean canopy closure of 
71 percent (Self and Kerns 2001).

Rest Site Structure Type and Size

    Rest site structures used by fishers include: cavities in live 
trees, snags, hollow logs, fallen trees, canopies of live trees, 
platforms formed by mistletoe (``witches brooms'') or large or deformed 
branches, and to a lesser extent stick nests, rocks, ground cavities, 
and slash and brush piles (Heinemeyer and Jones 1994; Higley et al. 
1998; Mazzoni 2002; Zielinski et al. 2003b). Tree size, age, and 
structural features are important characteristics of a rest structure. 
Zielinski et al. (in press 2003b) stated that rest structures in their 
study areas in the North Coast and the southern Sierra Nevada were 
among the largest diameter trees available, averaging 46.2, 47.2, and 
27.2 in (117.3, 119.8, and 69.0 cm) for live conifers, conifer snags, 
and hardwoods, respectively. Most rest locations in the study areas of 
Zielinski et al. (2003b) were in cavities or broken tops of standing 
trees. Trees must be large and old enough to bear the type of stresses 
that initiate cavities, and the type of ecological processes (e.g., 
decay, woodpecker activity) that form cavities of sufficient size to be 
useful to fishers; tree species that typically decay to form cavities 
in the bole are more important than those that do not (Zielinski et al. 
2003b). Cavities in hardwoods were the most frequently used rest 
structure in the southern Sierra Nevada study area where Douglas-fir is 
absent (37.5 percent of rest structures were in black oaks); and in the 
North Coast study area, Douglas-firs were the most frequently used 
species (65.6 percent) and black oaks were used less frequently (11.4 
percent) (Zielinski et al. 2003b). Higley et al. (1998) found that 
fishers in their Klamath study area use live hardwood trees most 
frequently for resting (57.14 percent) followed by live conifer trees 
(26.29 percent), snags and logs (14.86 percent--hardwoods and conifers 
combined) and the ground (1.71 percent). On managed industrial 
timberlands in northwestern California, fisher resting sites (N=35) 
were predominantly located on dwarf mistletoe in western hemlocks, 
large lateral branches and mammal nests in Douglas-firs, and cavities 
in cedars (Simpson Resource Company 2003). The majority of 34 rest 
sites described by Self and Kerns (2001) were located in mistletoe 
brooms in live Douglas-firs, whereas only 20 percent were in snags or 
hardwoods.

Natal and Maternal Dens

    Most dens are found in live trees, and there is little evidence 
that den sites are reused over time (Campbell et al. 2000). The trees 
must be large enough for cavities that can be used for natal and 
maternal dens. Of 19 tree dens documented by Truex et al. (1998) across 
three study areas in California, the average diameter was 45 in (115 
cm) for conifers and 25 in (63 cm) for hardwoods. Of 16 maternal and 
natal dens located on managed timberlands in northwestern California, 
nine were in cavities in hardwoods and seven were in conifer snags: 
diameters of den trees ranged from 24.6 in (62.5 cm) to 116 in (295 cm) 
(Simpson Resource Company 2003). According to Lewis and Stinson (1998), 
natal dens are most commonly found in tree cavities at heights of 
greater than 20 ft (6 m), while maternal dens may be in cavities closer 
to the ground so active kits can avoid injury in the event of a fall 
from the den. The mean height of natal and maternal dens found in 
British Columbia was 99 ft (26 m) above ground (Weir and Harestad 
2003). The height of these dens may help prevent predation by the 
larger male fishers or by other species.

Foraging Habitats

    Fishers in the Pacific States appear to be dietary generalists, and 
therefore, they may be flexible in their requirements for foraging 
habitat. Selection of foraging habitat may be driven by habitat 
relationships of primary prey species.
    Several studies have characterized foraging habitat which, similar 
to resting habitat, is often typified by characteristics associated 
with mature and late-successional forests (Jones and Garton 1994; 
Zielinski et al. 1997c).

[[Page 18775]]

However, fishers have been found to use a broader range of successional 
stages for hunting than for resting (Jones 1991; Heinemeyer 1993; Jones 
and Garton 1994). Jones (1991) found that younger-aged forests appeared 
suitable for hunting but were rarely used for summer resting; more 
structurally complex forests seemed to have been preferred for both 
activities, but simpler stand structures were used for hunting. In 
their use of younger forests, fishers in Idaho still appeared to select 
localities with higher availability of large-diameter trees, snags, and 
logs (trees over 18 in (47 cm) diameter, snags over 20 in (52 cm) 
diameter, and logs over 18 in (47 cm)) relative to randomly-located 
plots in the home range (Jones 1991).
    Complex down woody material including large down logs, and multi-
layered vegetative cover are important habitat elements for fishers. 
Fishers are often detected at sites with higher amounts of downed logs 
than at random sites (Klug 1997; Slauson et al. 2003), and high volumes 
of coarse woody debris and structural complexity near the forest floor 
(Weir and Harestad 2003), at least in part because high structural 
diversity is associated with prey species richness and abundance 
(Slauson et al. 2003) and greater prey vulnerability to capture 
(Buskirk and Powell 1994). Shrubs also provide food for prey and for 
fishers in the form of fruits and berries. Slauson et al. (2003) found 
that sites in their study area where fishers were detected had higher 
shrub cover (40-60 percent) than sites where they were not detected. 
Fishers may also avoid areas with too much low shrub cover because it 
may adversely affect the hunting success of fishers (Weir and Harestad 
2003).

Conclusion

    The key aspects of fisher habitat are best expressed in forest 
stands with late-successional characteristics. Fishers use habitat with 
high canopy closure, large trees and snags, large woody debris, large 
hardwoods, multiple canopy layers, and avoidance of areas lacking 
overhead canopy cover (Aubry and Houston 1992; Buskirk and Powell 1994; 
Buck et al. 1994; Seglund 1995; Klug 1996; Dark 1997; Truex et al. 
1998; Mazzoni 2002; Weir and Harestad 2003; Zielinski et al. in press 
2003b, in press 2003a). Fisher also occupy and reproduce in some 
managed forest landscapes and forest stands not classified as late-
successional that provide some of the habitat elements important to 
fisher, such as relatively large trees, high canopy closure, large 
legacy trees, and large woody debris, in second-growth forest stands 
(Klug 1997; Simpson Resource Company 2003). However, intensive 
management for fiber production on industrial timberlands does not 
typically provide for retention of these elements. It is unlikely that 
early and mid-successional forests, especially those that have resulted 
from timber harvest, will provide the same prey resources, rest sites 
and den sites as more mature forests (Zielinski and Powell 1994).
    Late-successional coniferous or mixed forests provide the most 
suitable fisher habitat because they provide abundant potential den 
sites and preferred prey species (Allen 1987). Forest structure of good 
quality fisher habitat should provide high diversity of dense prey 
populations, high vulnerability of prey to fishers, and natal and 
maternal dens and resting sites (Powell and Zielinski 1994). Younger 
forests in which complex forest structural components such as large 
logs, snags, and tree cavities are maintained in significant numbers, 
and which provide a diverse prey base, may be suitable for fisher 
(Lewis and Stinson 1998).

Distinct Population Segment

    In a 12-month finding, we must determine if (1) the petitioned 
action is warranted, in which case we would promptly publish a proposed 
rule to list the species; (2) the petitioned action is not warranted; 
or (3) the petitioned action is warranted but precluded by other higher 
priority listing activities. Under the Act, a species is defined as 
including any subspecies and any distinct population segment of a 
vertebrate species. To implement the measures prescribed by the Act and 
its Congressional guidance, we and the National Marine Fisheries 
Service (National Oceanic and Atmospheric Administration--Fisheries), 
developed a joint policy that addresses the recognition of DPSs of 
vertebrate species for potential listing actions (61 FR 4722). The 
policy allows for a more refined application of the Act that better 
reflects the biological needs of the taxon being considered, and avoids 
the inclusion of entities that do not require its protective measures. 
The DPS policy specifies that we are to use three elements to assess 
whether a population segment under consideration for listing may be 
recognized as a DPS: (1) the population segment's discreteness from the 
remainder of the species to which it belongs and (2) the significance 
of the population segment to the species to which it belongs. Our 
evaluation of significance is made in light of Congressional guidance 
that the authority to list DPSs be used ``sparingly'' while encouraging 
the conservation of genetic diversity. If we determine that a 
population segment meets the discreteness and significance standards, 
then the level of threat to that population segment is evaluated based 
on the five listing factors established by the Act to determine whether 
listing the DPS as either threatened or endangered is warranted.
    Below, we address under our DPS policy the population segment of 
the fisher that occurs in the western United States in Washington, 
Oregon and California. The area for this DPS includes the Cascade 
Mountains and all areas west, to the coast in Oregon and Washington; 
and in California, the North Coast from Mendocino County north to 
Oregon, east across the Klamath (Siskiyou, Trinity, and Marble) 
Mountains, across the southern Cascade Mountains and south through the 
Sierra Nevada Mountains. The mountainous areas east of the Okanogan 
River in Washington and the Blue Mountains west to the Ochoco National 
Forest in eastern Oregon are not included in this DPS due to their 
geographical isolation from the remainder of the DPS.

Discreteness

    Under our DPS policy, a population segment of a vertebrate species 
may be considered discrete if it satisfies either one of the following 
two conditions: (1) it is markedly separated from other populations of 
the same taxon as a consequence of physical, physiological, ecological, 
or behavioral factors (quantitative measures of genetic or 
morphological discontinuity may provide evidence of this separation); 
or (2) it is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant with regard to conservation of the taxon in light of 
section 4(a)(1)(D) of the Act.
    The proposed DPS is markedly separated from other fisher 
populations as a result of several factors. Native populations of the 
fisher in California and the reintroduced population in the southern 
Cascade Mountains of Oregon are physically isolated from the Canadian 
populations by over 200 miles (Weir 2003), given the northward 
contraction of the British Columbia population (Weir 2003) in Canada. 
Substantial information is available indicating the West Coast 
population is also physically separated from known populations of the 
fisher to the east.
    The range of the fisher in Washington, Oregon, and California is 
separated from the Rocky Mountains and the rest of the taxon in the 
central and eastern United

[[Page 18776]]

States by natural physical barriers including the non-forested high 
desert areas of the Great Basin in Nevada and eastern Oregon, and the 
Okanogan Valley in eastern Washington. At its extreme northern 
(unoccupied) extent in northern Washington, the DPS is separated from 
the western extension of the Rocky Mountains and associated ranges by 
the Okanogan Valley, a distance of approximately 93 to 124 mi (150 to 
200 km), which is well beyond the dispersal range for the species. 
Other physical barriers that separate the West Coast population from 
Rocky Mountain and eastern U.S. fisher populations include major 
highways, urban and rural open-canopied areas, agricultural 
development, and other nonforested areas. Fishers have a strong 
aversion to areas lacking in forest cover or to crossing large rivers 
that do not freeze in the winter (Powell 1993; Powell and Zielinski 
1994; Aubry and Lewis 2003); these behavioral factors, along with the 
other numerous barriers identified above, represent a significant 
impediment to eastward or westward movement for the fisher.
    We currently have limited information on dispersal distances of 
fishers in the western United States. However, studies conducted on 
fisher dispersal in the northeastern United States indicate that 
dispersal distances are relatively short (Arthur et al. 1993; York 
1996). There is no evidence that fishers are successfully dispersing 
outside of known population areas in California and Oregon. This is 
possibly due to the extent of habitat fragmentation, developed or 
disturbed landscapes, and highways and interstate corridors (see 
dispersal section above).
    Genetic information (Drew et al. 2003) indicates that the West 
Coast population of fisher originally colonized the Pacific states from 
British Columbia. The current range of fisher in British Columbia has 
been reduced and connection to fisher populations in the continental 
United States no longer exists (Weir 2003, BC Species and Ecosystems 
Explorer 2003). The fisher's present range in British Columbia has 
contracted northward from the international boundary by about 200 
kilometers. (Weir 2003). Movement of fisher from British Columbia 
southward to areas occupied by the West Coast population is not 
possible based on lack of available habitat, habitat preferences, and 
dispersal behavior of the fisher.
    The West Coast population also appears to be separated from other 
populations as a result of ecological factors, as they use forest types 
that differ in species composition, tree size, and habitat structure as 
compared to those used by fishers in other populations. The fisher is 
regarded as a habitat specialist in the western United States (Buskirk 
and Powell 1994), occurring only at mid to lower elevation in mature 
conifer and mixed conifer/hardwood forests characterized by dense 
canopies and abundant large trees, snags, and logs (Powell and 
Zielinski 1994). In contrast, fishers in the northeastern United States 
and the Great Lakes region inhabit areas with a large component of 
deciduous hardwood forest containing American beech (Fagus 
grandifolia), sugar maple (Acer saccharum), and other broadleaf species 
(Powell and Zielinski 1994). The majority of conifer forest habitat in 
Canada is characterized as boreal forest, which is different from the 
relatively dryer environmental conditions associated with Washington, 
Oregon, and California. In the Rocky Mountains of north central Idaho, 
certain all-conifer habitat types which include grand fir and Engelmann 
spruce appear to be important to, and preferentially selected by 
fishers (Jones 1991).
    With regard to physiological differences, the fishers in the native 
northern California population are significantly smaller in size (based 
on condylobasal length) than fishers from western and central Canada 
(Hagmeier 1959; Zielinski et al. 1995; Aubry and Lewis 2003.
    The West Coast population of the fisher is also delimited to the 
north by the international governmental boundary between the United 
States and Canada because of differences in control of exploitation, 
management of habitat, conservation status, and regulatory mechanisms 
that may be significant with respect to section 4(a)(1)(D) of the Act. 
Canada has no overarching forest practices laws governing management of 
its national lands. In contrast, lands within the National Forest 
System in the United States are considered under the National Forest 
Management Act of 1976, as amended (16 U.S.C. 1600), and associated 
planning regulations. The fisher is covered by British Columbia's 
Wildlife Act which protects virtually all vertebrate animals from 
direct harm, except as allowed by regulation (e.g., hunting or 
trapping). The fisher is designated as a Class 2 furbearer in British 
Columbia and, as such, can be legally harvested by licensed trappers 
under regional regulations. However, the fisher was reclassified to the 
Red List in British Columbia in 2003 with a provincial conservation 
ranking of ``S2,'' as assigned by the British Columbia Conservation 
Data Centre to ``score'' the risk of extinction or extirpation (BC 
Species and Ecosystems Explorer 2003). The Red List designation means 
that the species is considered imperiled at the provincial level. The 
change in the fisher designation was the result of an estimated 
provincial population of fewer than 3,000 individuals and habitat loss 
due to logging, hydro-electric development and other land use changes 
(BC Species and Ecosystems Explorer 2003). Although the change in Red 
List designation for the fisher in British Columbia carries no legal 
implications, trapping seasons for it have been closed until new 
information is collected that indicates the population is secure (BC 
Ministry of Land, Water, and Air Protection 2003). Beyond this 
voluntary closure of the trapping season, the fisher carries no 
protected status in British Columbia. Trapping the species has been 
prohibited for decades in Washington, Oregon, and California (Lewis and 
Stinson 1998). For the reasons stated above, we believe that these 
factors collectively play a role in delimiting the northern DPS 
boundary along the international border with Canada from the Cascade 
Mountains west to the Pacific Ocean.
    Based on the available information on fisher range and 
distribution, we conclude that the West Coast population of fisher is 
distinct and separate from other fisher populations in the United 
States and meets the requirements of our DPS policy for discreteness. 
The West Coast population of fisher is separated from fisher 
populations to the east by geographical barriers and to the north by 
habitat availability; it is further delineated by the international 
boundary with Canada, within which there are differences in control of 
exploitation, conservation status, and regulatory mechanisms that are 
significant to its conservation.

Significance to the Species

    Under our DPS policy, once we have determined that a population 
segment is discrete, we consider its biological and ecological 
significance to the larger taxon to which it belongs. This 
consideration may include, but is not limited to, the following 
factors: (1) Persistence of the discrete population segment in an 
ecological setting unusual or unique for the taxon; (2) evidence that 
loss of the discrete population segment would result in a significant 
gap in the range of the taxon; (3) evidence that the population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere as an introduced population outside its 
historical range; and (4) evidence that the discrete population segment 
differs markedly

[[Page 18777]]

from other populations of the species in its genetic characteristics. 
Significance is not determined by a quantitative analysis, but instead 
by a qualitative finding. We have found substantial evidence that the 
West Coast DPS of the fisher meets two of the significance factors and 
is supported by a third significance factor, and we have described them 
below.
    Fishers in the West Coast population persist in an ecological 
setting that is unusual in comparison to the rest of the taxon, with a 
different climate, topography, and habitat than that found in the 
majority of its range. The forests inhabited by fishers on the west 
coast lack the extensive broadleaf hardwood component that is common in 
the eastern portions of the species' range. The Pacific coast's wet 
winter followed by a dry summer is unique in comparison to climate 
types in the east and Canada, and produces distinctive sclerophyll 
forests of hardleaved evergreen trees and shrubs (Smith et al. 2001). 
This climate is characterized by mild, wet winters and warm, dry 
summers (Bailey 1995), while the climate in the animal's range in the 
Rocky Mountains consists of cold winters and cool, dry summers, and in 
the Great Lake States, eastern Canada, and the northeast United States 
it is characterized by cold winters, and warm, wet summers. Fishers on 
the west coast primarily occur in habitat in steep, mountainous 
terrain, while those in the Great Lakes region, eastern Canada, and the 
northeastern United States inhabit level terrain or low lying glaciated 
mountains. Releases of eastern fishers into western forests have 
generally been unsuccessful; Powell and Zielinski (1994) state that, 
``Roy's (1991) results [unsuccessful attempts to reintroduce Minnesota 
fishers to Montana] indicate that many fishers from eastern North 
America may lack behaviors, and perhaps genetic background, to survive 
in western ecological settings.'' The repeated introductions of fishers 
from British Columbia and Minnesota to the southern Cascade Mountains 
of Oregon (from 1960s to 1980s) have resulted in an apparently stable, 
but small population there; however, the species is not expanding and 
dispersing from the areas into which it was introduced.
    The loss of the West Coast DPS of the fisher would eliminate the 
entire southwest portion of the fisher's North American range. 
Additionally, the West Coast DPS of the fisher represents the 
southernmost range of the Martes genus. The West Coast populations 
represent three of the known remaining four populations in the western 
United States (fourth being the Rocky Mountain population), and a 
significant portion of the western range of fishers in North America. 
Based on figures from Weir (2003), the total range of the fisher in 
North America has been reduced approximately 33 percent in geographical 
area since the 1600s. This reduction is most apparent in the fishers 
southern and western range--largely in the United States. Based on our 
review of Lewis and Stinson's (1998) maps (modified from Gibilisco 
1994), these are three of only six or seven remaining areas occupied by 
fishers in the United States. Although these maps consider a large area 
of Canada to be within the 1994 range of the fisher, distribution has 
diminished in some areas of southeastern Ontario and Quebec, in the 
prairie provinces (Alberta, Saskatchewan, and Manitoba), and in the 
western United States (Gibilisco 1994); and because of the lack of 
inventories for the species in Canada, it is not known to what extent 
the range in Canada is occupied. Additionally, the populations in the 
southern Sierra Nevada and northern California/southern Oregon appear 
to be the only native populations of the fisher remaining in the west 
(Truex et al. 1998; Aubry et al. in press 2003; Drew et al. 2003), and 
are ``the only populations that have not been augmented with 
individuals (and genes) from other regions'' (Zielinski et al. 2003b).
    As stated earlier (see distribution section), the extent of area 
known to be currently occupied by fishers in Washington, Oregon, and 
California is roughly 20 percent of their historical extent in these 
States. The loss of the species from the United States west of the 
Rocky Mountains and south of British Columbia would result in a 
significant gap in the range of the species as a whole and represent 
the loss of a major geographical area of the range of the taxon. It 
would represent a loss of the species from about 20 percent of its 
historical range in the United States, a significant portion of its 
North American range, recognizing that the historical range was not 
continuously occupied spatially or temporally, and that the present 
range we identify is also not occupied continuously nor is all of the 
historical habitat still available, especially in the midwest and east.
    The extinction of fishers in their west coast range would also 
result in the loss of a significant genetic entity, since they have 
been described as being genetically distinct from fishers in the 
remainder of North America. More specifically, native fishers in 
California have reduced genetic diversity compared to other populations 
(Drew et al. 2003). Additionally, the extant native populations in 
California share one haplotype that is not found in any other 
populations (Drew et al. 2003).
    Quantitative measures of genetic discontinuity indicate that there 
is no naturally occurring genetic interchange with the California 
fisher populations. Based on genetic evidence, and supported by 
paleontological and archeological evidence, Wisely et al. (in litt. 
2003) theorize that fishers probably colonized the Pacific peninsula 
from the north, not the east. The fisher was once distributed 
throughout much of the dense coniferous forests in British Columbia, 
Washington, Oregon, and California (Drew et al. 2003). This historical 
connectivity among populations along the Pacific Coast is evidenced by 
the presence of British Columbia haplotypes in museum specimens from 
California and Washington (Drew et al. 2003). The historical continuity 
in fisher distribution no longer exists, as discussed above. Genetic 
variation shows the Oregon southern Cascade population is a 
reintroduced population descended from fishers translocated to Oregon 
from British Columbia and Minnesota (Drew et al. 2003). There is 
evidence that there has been no genetic interchange between the native 
northern California/southwestern Oregon Siskiyou population and the 
reintroduced southern Cascade Oregon population (Aubry et al. in press 
2003).

Conclusion

    We have evaluated as a DPS the population of fishers in the West 
Coast range and have addressed the elements our policy requires us to 
consider in deciding whether a vertebrate population may be recognized 
as a DPS and considered for listing under the Act. In assessing the 
population segment's discreteness from the remainder of the taxon, we 
have described the factors separating it from other populations. We 
considered distributional, ecological, behavioral, morphological, and 
genetic information, information from status surveys, and geographical 
and biogeographical patterns, and have concluded that this population 
segment is discrete under our DPS policy. In assessing the population 
segment's significance to the taxon to which it belongs, we have 
considered the geographical area represented by the western DPS, its 
genetic distinctness from fisher populations in the central and eastern 
United States, its unique ecological setting, and other considerations 
and factors as they relate to the species as a whole. We conclude that 
loss of the species from the west

[[Page 18778]]

coast range in the United States would represent (1) a significant gap 
in the species' range, (2) the loss of genetic differences from fisher 
in the central and eastern United States, and (3) the loss of the 
species from a unique ecological setting. Therefore, as the population 
segment meets both the discreteness and significance criteria of our 
DPS policy, it qualifies as an entity that may be considered for 
listing. We now evaluate its status as endangered or threatened. In 
making this determination, we evaluate the factors enumerated in 
section 4(a)(1) of the Act (16 U.S.C. 1533 (a)(1)).

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and implementing regulations 
at 50 CFR 424, set forth procedures for adding species to the Federal 
endangered and threatened species list. In making this finding, 
information regarding the status and threats to this species in 
relation to the five factors in section 4 of the Act is summarized 
below.
    Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of the Species' Habitat or Range. Vegetation management 
activities such as timber harvest and fuels reduction treatments, 
stand-replacing fire, large-scale forest disease outbreaks or insect 
infestations (e.g., pine beetle), and development can destroy, alter, 
or fragment forest habitat suitable for fishers.

Timber Harvest

    The extent of past timber harvest is one of the primary causes of 
fisher decline across the United States (Powell 1993), and may be one 
of the main reasons fishers have not recovered in Washington, Oregon, 
and portions of California as compared to the northeastern United 
States (Aubry and Houston 1992; Powell and Zielinski 1994; Lewis and 
Stinson 1998; Truex et al. 1998). Timber harvest can fragment fisher 
habitat, reduce it in size, or change the forest structure to be 
unsuitable for fishers.
    Habitat fragmentation has contributed to the decline of fisher 
populations because they have limited dispersal distances and are 
reluctant to cross open areas to recolonize historical habitat. Based 
on northeastern fisher home range sizes, Allen (1983) estimated that a 
minimum of 161 km2 (39,780 ac) of potentially suitable and 
contiguous habitat must be present before an area can sustain a 
population of fishers. However, fisher populations in western forests 
may need even larger areas because male home ranges in northern 
California have been reported to be as large as 128 km2 
(Beyer and Golightly 1996). A habitat suitability model developed in 
British Columbia figures that a minimum of 259 km5 of 
contiguous habitat is required for fisher transplant attempts (Apps 
1996 as cited in Craighead et al. 1999).
    Fishers use large areas of primarily coniferous forests with fairly 
dense canopies and large trees, snags, and down logs; vegetated 
understory and large woody debris appear important for their prey 
species. Fishers in the Pacific Northwest use late-successional forest 
more frequently than the early to mid-successional forests that result 
from timber harvest (Aubry and Houston 1992; Buck et al. 1994; 
Rosenberg and Raphael 1986). Elimination of late-successional forest 
from large portions of the Sierra Nevada and Pacific Northwest 
(Morrison et al. 1991; Aubry and Houston 1992; McKelvey and Johnston 
1992; Franklin and Fites-Kauffman 1996) has probably significantly 
diminished the fisher's historical range on the west coast (Lewis and 
Stinson 1998).
    Several studies have found sharp declines in late-successional/old-
growth forests (Beardsley et al. 1999, Bolsinger and Waddell 1993, the 
Report of the Forest Ecosystem Management Assessment Team (FEMAT) 1993, 
Franklin and Fites-Kaufmann 1996, Morrison et al. 1991, Service 1990). 
Old growth comprised about 50 percent of the forests of Washington, 
Oregon, and California in the 1930s and 1940s, but made up less than 20 
percent of those forests in 1992 (about 10.3 million ac; 41,683 km \2\) 
(Bolsinger and Waddell 1993).
    Franklin and Fites-Kaufman (1996) find that forests with high late 
successional/old-growth structural rankings are now uncommon in the 
Sierra Nevada of California (8 percent of mapped area). Mixed conifer 
forests are a particularly poorly represented forest type as a result 
of past timber harvesting, and key structural features of late 
successional/old-growth forests, such as large-diameter trees, snags, 
and logs, are generally at low levels (Franklin and Fites-Kaufman 
1996). The loss of structurally complex forest and the loss and 
fragmentation of suitable habitat by roads and residential development 
have likely played significant roles in both the loss of fishers from 
the central and northern Sierra Nevada and the fisher's failure to 
recolonize these areas (USDA Forest Service 2000).
    Within the Northwest Forest Plan area, 60 to 70 percent of the 
forested area of the region was historically dominated by late-
successional and old-growth forest conditions. Most of the forest 
(perhaps 80 percent) probably occurred in relatively large contiguous 
areas (greater than 1000 ac; 4 km \2\) (Bolsinger and Waddell 1993, 
USDA Forest Service and U.S. Department of Interior Bureau of Land 
Management (USDI BLM) 1994a). Franklin and Spies (1986) estimated that 
15 million ac (60,703 km \2\) of old-growth forest existed west of the 
Cascade Mountains in Oregon and Washington in the 1800s, and only about 
5 million ac (20,234 km \2\; 33 percent) remain. FEMAT (1993) reports 
the status of forests in several regions: private and State lands 
within western Washington and western Oregon Cascades have mostly been 
harvested, whereas Forest Service and Bureau of Land Management lands 
(BLM) still include significant areas (albeit highly fragmented) of 
late successional/old-growth forest; the Klamath Provinces of 
southwestern Oregon and northwestern California have forests that are 
highly fragmented by timber harvest and natural factors (poor soils, 
dry climate, wildfires); the southern end of the Cascades Range in 
Oregon extending into California has forests that are highly fragmented 
due to harvest activities and natural factors.
    The NWFP states that fisher populations are believed to have 
declined on Federal lands in old-growth habitat for two primary 
reasons: (1) Loss of habitat due to forest fragmentation resulting from 
clearcutting, and (2) the removal of large down coarse woody debris and 
snags from the cutting units (USDA Forest Service and USDI BLM 1994). 
Fishers in the eastern Klamath area of northern California have lower 
population densities, larger home ranges, lower capture rates, and a 
higher proportion of juveniles than other populations studied, possibly 
due in part to timber harvest having decreased habitat quality for the 
fisher in this area (Truex et al. 1998).
    The conversion of low-elevation forests in western Washington to 
plantations and non-forest uses may have eliminated a large portion of 
the fisher habitat in the state (Powell and Zielinski 1994). There were 
historically many mature and old-growth stands (Aubry and Houston 
1992). Over 60 percent of the 24.7 million ac (100,000 km \2\) of 
forest believed to be present in Washington when white settlers first 
arrived were potential fisher habitat (Lewis and Stinson 1998). By 
1992, the area of old-growth forest was reduced to 2.7 million ac 
(10,927 km \2\) (Bolsinger and Waddell 1993). During the last 50 years, 
the structure, composition, and landscape context of much of

[[Page 18779]]

Washington's 16,803,100 ac (68,000 km \2\) of commercial timberland has 
significantly changed because of intensive timber harvesting activities 
(Morrison 1988). Most of the remaining younger low and mid-elevation 
forest is fragmented and has reduced amounts of large snags and coarse 
woody debris, and may not be able to sustain fisher populations 
(Rosenberg and Raphael 1986; Lyon et al. 1994; Powell and Zielinski 
1994). The higher elevation forests are less suitable for fishers 
because of deep snowpacks (Aubry and Houston 1992; FEMAT 1993).
    Some forest management practices change the dominance of certain 
forest subtypes in western states (Lewis and Stinson 1998, Bouldin 
1999). This change in forest structure is important because certain 
habitat types or tree species are suitable for fishers. In addition, 
logging and fire suppression have created higher densities of small 
trees which have led to higher insect and pathogen-induced mortality 
and the loss of structural diversity, and increased chances for stand-
destroying fires (Bouldin 1999), the effects of which are discussed 
below.
    Mazzoni (2002) found that timber harvest, fire, and succession 
resulted in fisher habitat fragmentation in the southern Sierra Nevada 
from 1958 to 1997. Rosenberg and Raphael (1986) emphasize that the 
fragmentation of northwestern California Douglas-fir forests is 
relatively recent in comparison with forests of other regions, and that 
the true long-term responses of species to the break-up of their 
habitat cannot yet be discerned.
    The effects of timber harvest on fisher habitat depend on the 
silvicultural prescriptions used and the condition of the habitat prior 
to harvest. Habitat fragmentation is a concern. Clearcutting, selective 
logging, and thinning change the suitability of fisher habitat by 
removing overhead cover and insulating canopy, exposing the site to the 
drying effects of sun and wind (Buck et al. 1994) or to increased snow 
deposition, removing prime resting and denning trees, and increasing 
exposure of the fisher to predators.

Fuels Reduction and Loss of Habitat From Fire

    Mechanical thinning or prescribed fire negatively affect fishers if 
it impacts habitat quality by reducing canopy cover and coarse woody 
debris over large areas or fragment habitat. Fuels reduction 
treatments, including thinning and the removal of down woody debris, 
dense understory, snags, and low overstory tree crowns may 
significantly affect fishers in the immediate area. Prescribed burning 
generally promotes forest health, and can enhance suitability for 
wildlife, but may vary in its effect on fishers. Small fires should not 
be detrimental to fishers because of the fishers' large home ranges 
(unless they impact natal dens during breeding season); however, hotter 
or more widespread fires may displace fishers or destroy habitat. 
Prescribed fire can also consume habitat structural elements such as 
snags and downed logs that are important to fishers.
    The potential for stand-replacing wildfire has increased in areas 
where fire suppression has played a role in raising fuel load to levels 
that place late successional forest-dependent species at a higher risk 
of habitat loss (USDA Forest Service and USDI BLM 1994b). Stand 
replacing fires can impact large areas and render them unsuitable for 
fisher for several decades (Lewis and Stinson 1998). The combination of 
increased tree density and standing tree mortality (with associated 
increased surface/ground fuel loads) over the past century presents the 
greatest single threat to the integrity of Sierra Nevada forest 
ecosystems (McKelvey et al. 1996, USDA Forest Service 2000). On the 
other hand, while increased density of trees and woody debris (``fuel 
loading'') increases the risk of stand-replacing fire, they may also 
enhance habitat for the fisher in the short term.

Forest Disease and Insect Outbreaks

    Although large area epidemics may displace fishers if canopy cover 
is lost, the usual pattern of localized outbreaks and low density of 
insect and disease damage is probably not a great threat to fisher 
habitat. In some cases, the diseased trees are beneficial, providing 
structures conducive to resting and denning. However, timber removal 
and thinning prescriptions in response to outbreaks may fragment or 
degrade habitat in the short term in order to prevent catastrophic fire 
that will eliminate habitat altogether for decades (see previous 
discussion). In addressing outbreaks of the mountain pine beetle 
(Dendroctonus ponderosae) and other insects in British Columbia, Weir 
(2003) states that reduction in overhead cover may be detrimental to 
fishers and that wide-scale salvage operations may substantially reduce 
the availability and suitability of fisher habitat.
    Sudden Oak Death Phytophthora affects oaks and redwoods and may 
affect tanoak, evergreen huckleberry, and Pacific rhododendron 
(Rhododendron macrophyllum). Four sites on Federal, private industrial, 
and private nonindustrial forestlands in Oregon (near Brookings) have 
been confirmed as having Sudden Oak Death. The outbreaks at these sites 
affect from less than 1 ac (0.4 ha) to approximately 8 ac (3 ha) in 
size. Chances of continued introductions and establishment of the 
disease appear high in southwestern Oregon and northwestern California 
because these areas have the hosts, the climatic conditions preferred 
by the pathogen, and many potential pathways for its movement. It is a 
potentially significant threat if it spreads into areas in which oaks 
are the primary trees used for fisher denning.

Development, Recreation, and Roads

Urban Development and Recreation
    Forested area in the Pacific coast region decreased by about 8.5 
million ac (34,400 km\2\) between 1953 and 1997 (Smith et al. 2001). 
Alig et al. (2003) state that ``Forest cover area [in the Pacific coast 
states] is projected to continue to decrease through 2050, with 
timberland area projected to be about 6 percent smaller in 2050 than in 
1997. Forest area is projected to decline in all three subregions 
[Washington, Oregon, and California]. Population and income are 
expected to further fuel development in the region, as population is 
projected to increase at rates above the national average, leading to 
more conversion of forest to nonforest uses.''
    Rural and recreational development, such as campgrounds, recreation 
areas, and hiking, biking, off-road vehicle and snowmobile trails, may 
adversely affect fishers. Recreational activities can alter wildlife 
behavior, cause displacement from preferred habitat, and decrease 
reproductive success and individual vigor (USDA Forest Service 2000). A 
study of fisher habitat use on the Shasta-Trinity National Forest 
indicates that fishers use landscapes with more contiguous, 
unfragmented Douglas-fir forest and less human activity (Dark 1997).
Roads
    Highways and associated developments can substantially influence 
movement patterns of wildlife (Bier 1995). The adverse effects of roads 
include direct loss of habitat, displacement from noise and human 
activity, direct mortality, secondary loss of habitat due to the spread 
of human development, increased exotic species invasion, and creation 
of barriers to fisher dispersal. The impacts of these effects on low 
density carnivores like fishers are more severe than most other 
wildlife species due to their large home ranges, relatively low 
fecundity, and low natural population density

[[Page 18780]]

(Ruediger et al. 1999), and their general avoidance of non-forested 
habitats. Disruption of movement can contribute to a loss of available 
habitat (Mansergh and Scotts 1989), isolate populations, and increase 
the probability of local extinctions (Mader 1984). The loss of 
structurally complex forest (Beesley 1996) and the loss and 
fragmentation of suitable habitat by roads and residential development 
(Duane 1996) has likely played a significant role in both the loss of 
fishers from the central and northern Sierra Nevada and its failure to 
recolonize these areas.
    Areas with more roads may have increased fisher mortality due to 
road kill (Heinemeyer and Jones 1994). Given patterns of human 
population growth in areas near and within fisher habitat, road 
development and traffic, and associated mortality, can be expected to 
increase. Campbell et al. (2000) stated that many records of fisher 
locations come from roadkills; for example, Yosemite National Park 
reported four fishers killed by automobiles between 1992 and 1998. 
Proulx et al. (1994), York (1996), and Zielinski et al. (1995, 1997a) 
all cite the risk of fishers being struck and killed by vehicles as a 
potential threat to populations. The potential for vehicle collisions 
increases with the density of open roads in suitable habitat. Vehicles 
caused the death of two of the 50 radio-collared fishers in a 5-year 
Maine study (Krohn et al. 1994), and three of 97 fishers in a 3-year 
study in Massachusetts (York 1996). Vehicle collisions could be a 
significant mortality factor, especially for small fisher populations. 
Off-highway and over-snow vehicles are used throughout the range of the 
fisher, and can also directly kill fishers or cause behavioral changes 
due to disturbance.
    Vehicle traffic during the breeding season in suitable habitat may 
impact foraging and breeding activity. Dark (1997) found that fishers 
more often used areas with a greater than average density of low use 
roads, and may not have used areas that were dissected by moderate to 
high use roads. Campbell (2004) found that sample units within the 
central and southern Sierra Nevada region occupied by fishers were 
negatively associated with road density. This relationship was 
significant at multiple spatial scales (from 494 to 7,413 ac (2 to 30 
km \2\). In a stand-scale level study, Robitaille and Aubry (2000) 
found that martens, close relatives of fishers, were less active near 
roads. Paved roads are expected to cause more mortality than unpaved 
roads because of the higher use and speeds associated.
    The access to forest areas provided by roads leads to increased 
human disturbances from resource use and extractive activities. These 
disturbances result in an overall degradation of habitat. Because 
fishers occur at relatively low elevations, they are likely to be 
directly affected by human activities (Campbell et al. 2000). Roads 
also provide access for trappers who target other species, but might 
incidentally trap fishers (Lewis and Zielinski 1996).
    In conclusion, habitat loss and fragmentation appear to be 
significant threats to the fisher. Forested habitat in the Pacific 
coast region decreased by about 8.5 million ac (34,400 km \2\) between 
1953 and 1997 (Smith et al. 2001). Forest cover in the Pacific coast is 
projected to continue to decrease through 2050, with timberland area 
projected to be about 6 percent smaller in 2050 than in 1997 (Alig et 
al. 2003). Thus fisher habitat is projected to decline in Washington, 
Oregon, and California in the foreseeable future.
    Factor B. Overutilization for commercial, recreational, scientific, 
or educational purposes. The fisher has been commercially trapped since 
the early-1800s. Although exact numbers are unknown, trapping caused a 
severe decline in fisher populations. Aubry and Lewis (2003) state that 
overtrapping appears to have been the primary initial cause of fisher 
population losses in southwestern Oregon. The high value of the skins, 
the ease of trapping fishers (Powell 1993), year-round accessibility in 
the low to mid-elevation coniferous forests, and the lack of trapping 
regulations resulted in heavy trapping pressure on fishers in the late 
1800s and early 1900s (Aubry and Lewis 2003).
    In 1936, the Chief of the U.S. Biological Survey urged closing the 
hunting/trapping season for 5 years to save fisher and other furbearers 
from joining the list of extinct wild animals, noting that these 
species had disappeared from much of their former range in Oregon, 
Washington, and other states (USDA 1936). Commercial trapping of 
fishers has been prohibited in Oregon since 1937, in California since 
1946 (Aubry and Lewis 2003), and in Washington since 1933 (Lewis and 
Stinson 1998). Where trapping is legal in other states and in Canada, 
it is a significant source of mortality. Krohn et al. (1994), for 
example, found that over a 5-year period, trapping was responsible for 
94 percent of all mortality for a population of the fisher in Maine. In 
British Columbia, the fisher is classified as a furbearing mammal that 
may be legally harvested; however, due to a recent change in 
conservation status, the trapping season has been closed until it can 
be determined that the populations can withstand trapping pressure.
    Although it is currently not legal to trap fishers intentionally in 
California, Oregon and Washington, they are often incidentally captured 
in traps set for other species (Earle 1978; Luque 1983; Lewis and 
Zielinski 1996). It is legal to harvest many mammals that are found in 
fisher habitat, including bobcat (Lynx rufus), gray fox (Urocyon 
cinereoargenteus), coyote (Canis latrans), mink (Mustela vison) and 
other furbearers. Red fox (Vulpes vulpes) and marten (Martes americana) 
may also be trapped in Oregon and Washington. Incidental captures often 
result in crippling injury or mortality (Luque 1983; Strickland and 
Douglas 1984; Cole and Proulx 1994). Lewis and Zielinski (1996) 
estimated an incidental capture of 1 per 407 trap set-nights (number of 
set locations--where usually 1 or 2 leg-hold traps were set--multiplied 
by the number of nights when traps were set) and an average mortality-
injury rate of 24 percent, based on reports from five practicing 
trappers in California (72 incidental fisher captures over 50,908 set-
nights).
    Even low rates of additive mortality from trapping have been 
predicted to affect fisher population stability (Powell 1979, Lewis and 
Stinson 1998), and may slow or negate population responses to habitat 
improvement (Powell and Zielinski 1994). Powell (1979) reported that as 
few as one to four additional mortalities per year due to trapping over 
a 100 km\2\ (39 mi\2\) area could cause a significant decline in a 
reduced fisher population. The potential effects on fishers of legal 
trapping of other species may be significant when considered in 
conjunction with habitat loss and other sources of mortality.
    In summary, information available suggests that historical trapping 
caused a severe population decline, and current mortalities and 
injuries from incidental captures of fishers could be frequent and 
widespread enough to prevent local recovery of populations, or prevent 
the re-occupation of suitable habitat.
    Factor C. Disease or Predation. Fishers are susceptible to many 
viral-borne diseases, including rabies (Family Rhabdoviridae), canine 
and feline distemper (Mobillivirus sp.), and plague (Yersinia pestis). 
Contact between fishers and domesticated dogs and cats and other wild 
animals susceptible to such diseases (raccoons, coyotes, martens, 
bobcats, chipmunks, squirrels, etc.) may lead to infection in fishers. 
Although specific information on fisher diseases is limited, 
populations of three

[[Page 18781]]

other mustelids, the black-footed ferret (Mustela nigripes), the 
marten, and the sea otter (Enhydra lutris), have experienced outbreaks 
of various parasitic, fungal, or bacterial diseases. An epidemic of 
canine distemper in black-footed ferret in 1985 led to the extirpation 
of the species from the wild (Thorne and Williams 1988). Evidence of 
plague was found in martens in California through detection of plague 
antibodies and host fleas (Zielinski 1984). In a study on sea otter, it 
was determined that infectious disease caused the deaths of 38.5 
percent of the sea otters examined at the National Wildlife Health 
Center collected in California from 1992-1995 (Thomas and Cole 1996).
    Studies in the urban-wildland interface suggest a correlation 
between the prevalence of disease in wild populations and contact with 
domestic animals, however fisher populations do not currently appear to 
be at risk.
    Mortality from predation could be a significant threat to fishers. 
Potential predators include mountain lions (Puma concolor), bobcats, 
coyotes, and large raptors (Powell 1993; Powell and Zielinski 1994; 
Truex et al. 1998). Although generalist predators such as bobcats and 
mountain lions are not common in dense forest environments, they can 
invade disturbed habitat. Healthy adult fishers are apparently not 
usually subject to predation, except for those that have been 
translocated (Powell and Zielinski 1994) to an unfamiliar area, or 
those in areas with less canopy cover and forest structure (Buck et al. 
1994). However, Powell and Zielinski (1994) and Truex et al. (1998), 
report that predation as well as human-caused death are significant 
sources of mortality. Of mortalities recorded by Truex et al. (1998), 
nine were suspected to be from predation and five were suspected to be 
human-caused, including two vehicle collisions, two cases where the 
collar was cut (indicating poaching), and one fisher that died after 
being trapped in a water tank. Four fishers out of seven that died 
during a study by Buck et al. (1994) were killed by other carnivores; 
the death of one juvenile was suspected to have been caused by another 
fisher.
    In conclusion, mortality from disease and predation does not appear 
to be a significant threat unless populations are extremely small as is 
the case of the West Coast population of the fisher. Diseases in other 
mustelids affect this species and there is the potential for such 
disease outbreaks to occur in fisher populations.
    Factor D. The Inadequacy of Existing Regulatory Mechanisms. 
Existing regulatory mechanisms that could provide some protection for 
the fisher include: (1) Federal laws and regulations; (2) State laws 
and regulations; and (3) local land use processes and ordinances. 
However, these regulatory mechanisms have not prevented continued 
habitat fragmentation and modification, incidental trapping, and 
predator control programs all of which result in population declines of 
fisher in the west. Although many States, Tribes, and Federal agencies 
recognize the fisher as a species which has declined substantially, 
their use of available regulatory mechanisms to conserve the species is 
limited. There are no regulatory mechanisms that specifically address 
the management or conservation of functional fisher habitat. However, 
the states in the petitioned area provide the fisher with protections 
from hunting and trapping, and regulatory mechanisms governing timber 
harvests incidentally provide conservation benefits for the fisher. The 
fisher is regulated under the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES), a treaty 
established to prevent international trade that may be detrimental to 
the survival of wild plants and animals.

Federal Regulations

National Forests
    Federal activities on National Forest lands are subject to 
compliance with Federal environmental laws including the Multiple-Use 
Sustained-Yield Act of 1960 (16 U.S.C. 528 et seq.), National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and Clean 
Water Act of 1972 as amended (33 U.S.C. 1251 et seq. 1323 et seq.), as 
well as the National Forest Management Act of 1976 (90 Stat. 2949 et 
seq.; 16 U.S.C. 1601-1614) (NFMA).
    The 1982 NFMA planning rules currently in effect require the Forest 
Service to ``maintain viable populations of existing native and desired 
non-native vertebrates in the planning area [National Forests System 
lands]'' (30 CFR 219.19). The 2000 planning rule shifted the emphasis 
from maintaining viable populations of individual vertebrate species to 
providing ecological conditions that provide a high likelihood of 
supporting the viability of native and desired non-native species well 
distributed throughout their ranges within the plan area (Sec.  
219.20). The viable population mandate, with associated monitoring 
requirements, could serve as the basis for forest management consistent 
with maintaining fishers. The viability requirement was integral in 
guiding the protection and management of late successional forest 
through the NWFP process, and through the SNFPA amendment process; the 
regulatory contributions of both plans to fisher conservation is 
discussed below.
    The Forest Service's Sensitive Species Policy (Forest Service 
Manual 2670.32) calls National Forests to assist and coordinate with 
states, the Service, and NOAA Fisheries in conserving species with 
viability concerns. The fisher has been identified as a sensitive 
species by the Region 5 (Pacific Southwest Region) Regional Forester. 
The Forest Service defines Sensitive Species as ``those plant and 
animal species identified by a Regional Forester for which population 
viability is a concern as evidenced by significant current or predicted 
downward trend in numbers or density.''
    On December 6, 2002, the Forest Service published a proposed rule 
to revise the 2000 NFMA planning rule. It is uncertain how the proposed 
rule, if and when implemented, will affect the interpretation of 
viability and the implementation of management for species viability.
National Environmental Policy Act
    The National Environmental Policy Act of 1969, as amended (NEPA), 
requires all Federal agencies to formally document, consider, and 
publicly disclose the environmental impacts of major federal actions 
and management decisions significantly affecting the human environment. 
The resulting documents are primarily disclosure documents, and NEPA 
does not require or guide mitigation for impacts.
    Projects that are covered by certain ``categorical exclusions'' are 
exempt from NEPA biological evaluation. The Forest Service and the 
Department of Interior have recently revised their internal 
implementing procedures describing categorical exclusions under NEPA 68 
FR 33813 (June 5, 2003). The joint notice of NEPA implementing 
procedures adds two categories of actions to the agency lists of 
categorical exclusions: (1) Hazardous fuels reduction activities; and 
(2) rehabilitation activities for lands and infrastructure impacted by 
fires or fire suppression. These exclusions apply only to activities 
meeting certain criteria: mechanical hazardous fuels reduction projects 
up to 1,000 ac (4 km\2\) in size can be exempt, and hazardous fuels 
reduction projects using fire can be exempt if less than 4,500 ac (18.2 
km\2\). See 68 FR 33814 for other applicable criteria. Exempt post-fire

[[Page 18782]]

rehabilitation activities may affect up to 4,200 ac (17 km\2\). As 
stated above under Factor A, fuels reduction activities can reduce key 
fisher habitat elements such as large down logs and woody debris, large 
snags, but have counter-balancing benefits of reducing fire probability 
and brushy undergrowth which is not favored by fishers.
    On July 29, 2003, the Forest Service published a notice of final 
interim directive (68 FR 44597) that adds three categories of small 
timber harvesting actions to the Forest Service's list of NEPA 
categorical exclusions: (1) The harvest of up to 70 ac (28 ha) of live 
trees with no more than 0.5 mi (.8 km) of temporary road construction; 
(2) the salvage of dead and/or dying trees not to exceed 250 ac (101 
ha) with no more than 0.5 mi (.8 km) of temporary road construction; 
and (3) felling and removal of any trees necessary to control the 
spread of insects and disease on not more than 250 ac (101 ha) with no 
more than 0.5 mi (.8 km) of temporary road construction. Again, as 
stated above under Factor A, timber harvest and road construction can 
reduce key habitat elements for the fisher such as dense canopy cover 
and large trees, and results in at least temporary habitat 
fragmentation, but have corresponding long-term benefits.
Northwest Forest Plan
    The NWFP was adopted in 1994 to guide the management of 24 million 
ac (97,125 km \2\) of Federal lands in portions of western Washington, 
Oregon, and northwestern California. The NWFP represents a 100-year 
strategy intended to provide the basis for conservation of the northern 
spotted owl (spotted owl) and other late-successional and old-growth 
forest-associated species on Federal lands (USDA et al. 1993).
    Implementation of the NWFP (November 2003) would over time provide 
a network of connected reserves of late successional forest habitat 
surrounded by younger forest. Implementation of the plan will lead to a 
substantial improvement in current habitat conditions for the fisher on 
Federal lands. However, the assessment of NWFP implementation on the 
fisher projected a 63 percent likelihood of achieving an outcome in 
which habitat is of sufficient quality, distribution, and abundance to 
allow the fisher population to stabilize and be well distributed across 
Federal lands. We will need to reassess this prediction as the NWFP is 
implemented and other fisher conservation efforts (e.g., 
reintroductions) are initiated.
Sierra Nevada Forest Plan Amendment (SNFPA)
    The SNFPA was adopted in January 2001 as a guidance and policy 
document for managing 11 national forests and about 11 million ac 
(44,516 km \2\) of California's National Forest lands in the Sierra 
Nevada and Modoc Plateau. The SNFPA includes measures expected to lead 
to an increase over time of late-successional forest; these measures 
include requirements to retain conifers greater than 30 in (76.2 cm) 
DBH and hardwoods greater than 12 in (30.5 cm) DBH in westside forests, 
retention of important wildlife structures such as large diameter snags 
and coarse downed wood, and management of about 40 percent of the plan 
area as old forest emphasis areas (USDA Forest Service 2001). The SNFPA 
also established a Southern Sierra Fisher Conservation Area with 
additional requirements intended to maintain and expand the fisher 
population of the southern Sierra Nevada. Conservation measures for the 
fisher conservation area include maintaining at least 60 percent of 
each watershed in mid-to-late successional forest (11 to 24 in (28 to 
61 cm) dbh and greater) with forest canopy closure of 50 percent or 
more. The plan also includes protections for den sites; as discussed 
elsewhere in this document, this tends to provide limited conservation 
value. Implementation of the 2001 plan was expected to maintain and 
restore fisher habitat in Southern Sierra Fisher Conservation Area, and 
encourage recovery to its historic range (USDA Forest Service 2001).
    In response to appeals to the adoption of the SNFPA, the Regional 
Forester assembled a review team to evaluate specific plan elements, 
including the fuels treatment strategy, consistency with the National 
Fire Plan, and agreement with the Herger-Feinstein Quincy Library Group 
Recovery Act. The review was completed in March 2003 (USDA Forest 
Service 2003b), and in June 2003, the Forest Service issued a Draft 
Supplemental Environmental Impact Statement (DSEIS) for proposed 
changes to the SNFPA (USDA Forest Service 2003a). The Final 
Supplemental Environmental Impact Statement (FSEIS) was issued in 
January 2004, and the new Record of Decision was issued on January 21, 
2004 (USDA Forest Service 2004).
    The preferred alternative in the FSEIS, Alternative S2, was chosen 
in the final Record of Decision. This alternative includes an objective 
to retain 30 in (76.2 cm) and larger trees (with exceptions allowed to 
meet needs for equipment operability) and a desired condition for the 
Southern Sierra Conservation Area which states that outside of any 
Wildland Urban Interface areas, a minimum of 50 percent of the forested 
area has at least 60 percent canopy cover for known or estimated female 
fisher home ranges (USDA Forest Service 2004, Record of Decision p. 
41). Furthermore, it directs that where home range information is 
lacking, the watershed mapped at the Hydrologic Unit Code 6 level be 
used as the analysis area for this desired condition. The Record of 
Decision also states that if fishers are detected outside of the 
Southern Fisher Conservation Area, habitat conditions should be 
evaluated and appropriate mitigation measures implemented to retain 
suitable habitat within the estimated home range.
    The FSEIS preferred alternative includes standards and guidelines 
which apply to fishers and provide protections for verified fisher den 
sites, including a 700 ac (2.8 km \2\) buffer around confirmed fisher 
birthing and rearing dens during March 1 through June 30. However, the 
guidelines would provide little protection to fishers or their habitat, 
because: (1) Den sites are difficult to detect even in studies using 
radio-collared fishers (fewer than 10 den sites have been found to 
date) and project-level surveys are unlikely to locate dens (USDA 
Forest Service 2000); (2) there is little evidence that den sites are 
reused over time (Campbell et al. 2000), limiting the value of 
protecting past den sites; (3) some restrictions can be waived, 
including the limited operating period for vegetation treatments; and 
(4) it is unclear how and to what extent the impacts of roads, off 
highway vehicles, and recreation would be minimized.
National Forest Land and Resource Management Plans
    Each National Forest is operated under a Land and Resource 
Management Plan (LRMP). The NWFP standards and guidelines apply for 
National Forests within the range of the northern spotted owl except 
when the standards and guidelines of LRMPs are more restrictive or 
provide greater benefits to late-successional forest species. Most 
National Forests within the range of the fisher in its west coast range 
have LRMPs that incorporate the provisions of the NWFP or are amended 
by the SNFPA, and therefore implement the standards and guidelines of 
the applicable plan. Most individual Forest LRMPs do not provide any 
additional protections to fisher or fisher habitat; therefore, the 
above discussion regarding the NWFP and SNFPA

[[Page 18783]]

summarizes the primary regulatory mechanisms in place on National 
Forest lands within the DPS area.
    In California, the Humboldt-Toiyabe, Modoc, Lassen, Plumas, Tahoe, 
Eldorado, Stanislaus, Sierra, Inyo, and Sequoia National Forests and 
the Lake Tahoe Basin Management Unit are within the area covered by the 
SNFPA.
    In Oregon, National Forests located on the west side of the Cascade 
Mountains (Mt. Hood, Willamette, Umpqua, Rogue, Siuslaw, Siskiyou 
National Forests) are within the boundaries of the NWFP.
    Forests on the east side of the Cascade Mountains (Winema, 
Deschutes, Fremont National Forests) only partially overlap the NWFP 
area. Outside of the NWFP boundaries, the Inland Native Fish Strategy 
(INFISH) and Interim Management Direction Establishing Riparian, 
Ecosystem, and Wildlife Standards for Timber Sales (Eastside Screens) 
amend the LRMPs for the eastern portion of the Winema National Forest 
and all of the Fremont National Forest. The guidelines, developed to 
protect fish habitat, may also provide benefits to fisher by protecting 
riparian corridors; establishing large woody debris requirements 
(greater than 20 pieces per mi (12.4 pieces per km); greater than 12 in 
(30.5 cm) diameter; greater than 35 ft (10.7 m) long); and delineating 
Riparian Habitat Conservation Areas (RHCAs), which would prohibit 
timber harvests within them in most situations. Minimum widths for 
RHCAs range from a minimum of 300 ft (91 m) slope distance on either 
side of fish-bearing streams to 150 ft (46 m) on either side of 
perennial non-fish-bearing streams and around most lakes, ponds, 
reservoirs and wetlands. Seasonally flowing or intermittent streams, 
wetlands less than an acre, landslides, and landslide-prone areas would 
have protections ranging from about 50 to 100 ft (15 m to 30 m) or one 
site-potential tree height, depending on watershed priority.
    The Eastside Screens provide interim direction for timber harvest 
associated with forest health and prohibit the harvest of large 
diameter trees (21 in (53 cm) DBH or larger) and protect snags and 
large woody debris for wildlife. Both INFISH and the Eastside Screens 
were expected to be short-term strategies to be replaced once LRMPs are 
amended by other guidance, such as the Interior Columbia Basin 
Ecosystem Management Project (ICBEMP).
    At this time, a decision notice for ICBEMP has not been issued, 
although a Memorandum of Understanding (MOU) has been signed which 
implements the associated Interior Columbia Basin Strategy (Strategy). 
The purpose of the MOU is to cooperatively implement the Interior 
Columbia Basin Strategy guiding the amendment and revision of Forest 
Service National Forest and BLM LRMPs and project implementation on 
public lands. The plans and MOU currently being implemented could 
maintain or enhance fisher habitat by preventing the loss of old-growth 
forests and promoting long-term sustainability of old forest habitat, 
although short-term adverse impacts may occur as a result of activities 
including thinning and silvicultural treatments. Maintaining wildlife 
movement corridors primarily associated with deer and elk are usually 
included as part of project designs and may also benefit fishers.
    Potential fisher habitat in Washington State is located on the 
Olympic, Mount Baker-Snoqualmie, Gifford Pinchot, Wenatchee, and 
Okanogan National Forests. There are approximately 1,479,749 ac (5,987 
km\2\) of fisher habitat on Federal lands in Washington State, of which 
1,108,994 ac (4,489 km\2\; 75 percent) are in National Forests and the 
remainder is in National Parks.
    Most of the potential fisher habitat in Washington State is within 
the range of the northern spotted owl and thus also within the NWFP 
Area. Over 80 percent of the habitat is in areas that are designated as 
reserves (Congressionally withdrawn, LSRs, or natural areas). Logging 
within these areas is restricted and limited to thinning or individual 
tree removal. The WDFW recently conducted a feasibility analysis to 
determine areas for potential reintroduction of the fisher. Based on 
this analysis, the largest blocks of suitable habitat are located in 
the Olympic NF, areas around the Goat Rocks and Indian Heaven 
Wilderness on the Gifford Pinchot NF, portions of the Wenatchee NF east 
of Mount Rainier National Park, and the foothills to the west of the 
Alpine Lakes and Glacier Peak Wilderness Areas on the Mount Baker-
Snoqualmie NF. Approximately 81 percent of the Olympic, 75 percent of 
the Gifford Pinchot, 63 percent of the Mount Baker-Snoqualmie, 40 
percent of the Wenatchee, and 22 percent of the Okanogan National 
Forests are below 4000 ft (1,220 m) in elevation. Although most of the 
remaining fisher habitat will be protected as long as the NWFP remains 
in effect, the landscape remains fragmented.
Bureau of Land Management (BLM) Lands
    The NWFP standards and guidelines apply to BLM lands within the 
range of the northern spotted owl except when the standards and 
guidelines of Resource Management Plans (RMPs) are more restrictive or 
provide greater benefits to late-successional forest species. The BLM's 
Alturas District in northern California is currently in the process of 
rewriting its RMP. However, the District has very little land with 
potential fisher habitat. Neither fishers nor their potential habitat 
are mentioned in the RMP, and the RMP is not affected by the SNFPA or 
NWFP. The RMPs for the Arcata, Redding, and Ukiah Field Offices also do 
not contain any protective measures for fisher or require pre-project 
surveys. In Oregon, BLM Resource Management Plans were amended by the 
NWFP in the west Cascades, and by INFISH and Eastside Screen interim 
guidance in the east Cascades. Therefore, management would be similar 
to that described above for the National Forests. The BLM and U.S. 
Timberlands (private landowner) are working together, where their land 
ownerships are checkerboarded, to reduce wildlife impacts by 
restricting access and closing roads. BLM lands are limited in 
Washington state and do not contribute to fisher habitat.
National Park Lands
    The land management plan for Redwood National Park does not contain 
any protective measures for fishers and does not require pre-project 
surveys. Undeveloped areas of Crater Lake National Park are managed 
toward natural processes and are expected to maintain fisher habitat. 
Hunting and trapping are not allowed in the park, and park facilities 
are currently confined to certain areas, primarily in the higher 
elevations above fisher habitat. Studies are planned to evaluate 
snowmobile use in the park.
    The Columbia River Gorge National Scenic Area in Oregon (and 
Washington) encompasses about 292,500 ac (1,184 km2) and is 
operated under a land use management plan that provides protection to 
all lands in the gorge. About half of the land in the Gorge is state or 
federally owned and has special management area guidelines dedicated to 
scenic and natural values. The remainder of the Gorge is private lands 
managed under general guidelines that are currently being revised. The 
fisher is a protected species within the area covered by the Columbia 
River Gorge management plan. On Federal lands, the restriction against 
removal of old-growth forests and clearcut logging would protect fisher 
habitat. After the Gorge forest practices guidelines are revised it is 
expected that habitat conditions will be retained for fisher because of 
the priority concept of

[[Page 18784]]

retaining old growth, scenic, and natural values in the Gorge.
    Fisher habitat occurs in the Olympic, North Cascades and Mount 
Rainier National Parks. However, the interiors of all three parks are 
classified as alpine and are too steep and rugged to be suitable for 
fishers. Approximately 33 percent of the 1 million ac (4,047 
km2) Olympic National Park, 30 percent of the North Cascades 
NP and Ross Lake National Recreation Area (just over 500,000 ac (2,023 
km2), combined), and less than 15 percent of Mount Rainier 
National Park (235,500 ac; 953 km2) is typed as fisher 
habitat. The largest blocks of habitat occur in a ring around the 
mountainous interior of the Olympic Peninsula, in areas to the south 
and east of Mount Rainier National Park, in the Ross Lake National 
Recreation Area, and in river valleys on the west side of the North 
Cascades National Park.
    Because the interior of the Cascades and Olympic Peninsula are 
alpine, fisher habitat is limited to a relatively narrow band along the 
foothills. In addition, most of the low elevation passes are bisected 
by major transportation corridors. Efforts are currently under way to 
provide wildlife corridors (under or overpasses) along Interstate 90 to 
facilitate north-south movement of wildlife through the Washington 
Cascades.
National Resource Conservation Service (NRCS)
    The NRCS does not manage lands, and has not been involved with 
forest related work, but plans to develop forest-related projects in 
the near future. Initial projects will likely be east of the NWFP 
boundary, along the Sprague River in Oregon and elsewhere. Focus would 
be on thinning projects to enhance wildlife habitat and could enhance 
potential fisher habitat where it exists. The NRCS would be subject to 
NEPA and other existing regulatory mechanisms discussed elsewhere.
Tribal
    In California, the Hoopa Valley Indian Reservation forest 
management plan (Tribal Forestry 1994) addresses the 88,958 ac (360 
km2) where fishers are known to be present, and which 
contains about 75,000 ac (303.5 km2) of commercial 
timberland. The forest management plan also recognizes the fisher as a 
traditional and culturally important species and designates the fisher 
as a species of special concern, and forest management activities are 
not allowed to knowingly result in ``take'' of species of concern 
unless approved by the Tribal Council. The plan contains some 
protective measures for fisher such as setting aside three to seven 
habitat reserves (each 50 ac (20 ha) or less in size) for pileated 
woodpeckers, mink, and fishers. Intensive timber harvest will not occur 
within the reserves. The plan establishes 32 no-harvest reserves 
(minimum of 60 ac (24 ha) each) for late-seral, cultural, sensitive, 
and listed species.
    The Yurok Tribe manages roughly 4,000 ac (16 km2) of 
collective Tribal land holdings, held in trust by the Department of the 
Interior. Tribal lands include about 1,000 ac (4 km2) of 
late-seral redwood forest. The land management plan for the Yurok Tribe 
does not contain specific protective measures for fishers and does not 
require pre-project surveys. It is unclear to what extent this plan 
will help to maintain appropriate habitat elements for the fisher.
    The Tule River Reservation in the southern Sierra Nevada includes 
about 56,000 ac (227 km2) of lands, which includes forest 
lands managed for timber and firewood. Information is not available 
regarding regulatory mechanisms for these Tribal lands.
    The Warm Springs Reservation of Oregon encompasses almost 1,000 
mi2 (2,590 km2) on the western slope of the 
Cascade Range. The Integrated Resource Management Plan (IRMP) for 
forested areas of the Warm Springs Reservation of the Confederated 
Tribes includes guidelines that ensure buffers of 30 to 100 ft (9 to 30 
m) (depending on the size of the feature) for riparian features such 
streams, wetlands, seeps, springs, or bogs. Standards to protect 
wildlife habitats and species include protection of at least four 
overstory trees per acre, retaining a minimum of ten class 1-3 logs per 
ac (12 in (30 cm)) diameter and 20 ft (6 m) long), and a 60:40 forage 
to cover ratio in wildlife management zones. The IRMP identifies 
conditional use areas that are not part of the commercial forest base 
although these areas could be harvested at some point in the future. 
These areas typically have cultural value and comprise about five 
percent of the Reservation. There are 14 spotted owl activity centers 
on the reservation.
    For the Klamath Tribes in Oregon, the only activity identified that 
may impact the fisher is bobcat trapping. According to Rick Ward 
(Klamath Tribe biologist), trapping activity is currently very low due 
to presently low pelt prices. However, as reported in the Klamath News, 
an official publication of the Klamath Tribe (2003), there is a current 
effort to return approximately 690,000 ac (2,792 km2) of the 
former reservation from the Fremont-Winema National Forest to the 
Klamath Tribes. This includes areas where fisher have been documented. 
If the land ownership changes, that would likely alter management of 
fisher habitat.
    The Coquille Tribe of Oregon manages their land according to the 
guidelines of the NWFP. The Coquille lands were formerly managed by the 
BLM. When the lands were transferred from the BLM to the Tribe, the 
Tribe agreed to manage their lands according to the guidelines in the 
NWFP and the Coos Bay BLM Resource Management Plan. Their land holdings 
in southwest Oregon are all in NWFP ``matrix'' designation (i.e., areas 
contemplated for timber harvest) which does not provide any benefits to 
fisher conservation.
    There are 19 Tribes with forest lands within the range of the 
fisher in Washington State. The majority of those Tribes do not have 
any suitable fisher habitat or do not have sufficient acreage. The 
Tribal lands of the Makah, Quinault, and Yakama Indian Nations may have 
suitable fisher habitat, but only the Quinault and Yakama Tribes have 
management plans that protect enough habitat for the northern spotted 
owl (a late-successional associate) that the plans likely incidentally 
also provide habitat for fishers.
    The Confederated Tribes and Bands of the Yakama Nation reservation 
is located in south central Washington State, east of the Cascade 
crest, and contains about 526,000 ac (2,129 km2) of forests. 
In 1998, 144,559 ac (585 km2) of reservation forest were 
typed as suitable habitat for spotted owls (Yakama Nation 2003). Of 
these, about 43 percent (62,266 ac; 252 km2) are currently 
not managed for commercial timber production, while the remaining 57 
percent will receive some level of stand management. Timber harvest is 
generally conducted using uneven-aged management prescriptions (King et 
al. 1997), in which up to 30 percent of the volume may be removed 
during an entry. Based on the Tribe's forest management practices and 
the distribution of spotted owl habitat, Yakama lands may widely 
provide suitable foraging habitat for fishers, and sufficient habitat 
elements including snags and downed logs to provide some denning/
resting habitat, particularly in the areas reserved from harvest. Owl 
habitat may be a rough surrogate for fisher habitat, since both require 
late successional forests.
    The North Boundary Area of the Quinault Tribe Reservation is 
contiguous with Forest Service Late Successional Reserves to the north 
and southeast, and National Park Service lands to the east, and is the 
only area on the reservation that has potential

[[Page 18785]]

habitat for the fisher. Negotiations are currently under way with the 
Tribe to protect habitat around occupied owl and murrelet sites, which 
may incidentally protect potential fisher habitat.

State

Washington
    The Washington Department of Natural Resources (WDNR) manages the 
State lands in Washington. State lands occupy a substantial portion of 
the fisher's historic range in the State, consisting of roughly 1.6 
million ac (6,475 km \2\) of forest within the range of the northern 
spotted owl (primarily lands west of the crest of the Cascade 
Mountains). Because these lands generally occur at lower elevations 
than National Forest lands, a higher proportion is within the elevation 
range preferred by the fisher (Aubry and Houston 1992; WDNR 1997). 
Thus, State lands are important to the conservation of the fisher. 
However, over half of all WDNR forests are less than 60 years in age 
and less than 150,000 ac (607 km \2\, about 9 percent) are over 150 
years, indicating that most old growth on Washington State lands has 
been liquidated (WDNR 1997).
    Several State Parks in Washington contain remnant stands of mature 
and late-successional forest and may have suitable habitat for the 
fisher. Like elsewhere, these parks are widely scattered and isolated 
by large areas that are unsuitable for fishers. There are approximately 
18,858 ac (76 km \2\) of mature or old-growth forests within State 
Parks in Washington. Unfortunately, many of the larger parks are on 
islands and would not contribute to the recovery of the fisher. A few 
state parks and forests, such as Mount Pilchuck State Forest, and 
Rockport, Ollalie, Hamilton Mountain/Beacon Rock, Twin Falls, and 
Wallace Falls State Parks have limited habitat which may provide some 
foraging opportunities for dispersing fishers and extend the habitat on 
Federal lands in the Cascades. Trapping of fishers has been prohibited 
in Washington since 1933, but fishers have been caught incidentally in 
traps set for other species, and the impact of incidental captures in 
Washington is unknown (Lewis and Stinson 1998).
    In October 1998, the State of Washington listed the fisher as 
Endangered (WAC 232-12-297), which provides additional protections in 
the form of more stringent fines for poaching and a process for 
environmental analysis of projects affecting the species. There are no 
special regulations to protect habitat for the fisher or to conduct 
surveys for this species prior to obtaining forest activity permits. 
Although a few individuals may still reside in remote areas, the 
species is believed to be extirpated from Washington and the State is 
currently in the process of completing a feasibility report to 
determine suitable areas for reintroduction.
    About 7 million ac (28,330 km \2\) of non-Federal forest lands 
exist within the possible range of the fisher in the Olympic Peninsula 
and Cascades in Washington. A geographic information system (GIS) 
analysis of general habitat suitability typed about 2 percent 
(approximately 152,300 ac (616 km \2\)) as suitable habitat for fisher. 
This analysis included mature/old-growth, northern spotted owl habitat, 
and habitat meeting other criteria as suitable fisher habitat. Because 
the remnant patches of mature forest are widely scattered and isolated, 
it is unlikely that there is sufficient habitat on non-Federal lands to 
support resident fishers. However, if proposed fisher reintroduction 
efforts occur and are successful, private lands may be important to 
maintain habitat in key linkage areas across the Puget Trough lowlands 
to provide connectivity between the Olympic Peninsula and the Cascades.
    The primary regulatory mechanism on non-Federal forest lands in 
western Washington is the Washington State Forest Practice Rules, Title 
222 of the Washington Administrative Code. These rules apply to all 
commercial timber growing, harvesting, or processing activities on non-
Federal lands, and give direction on how to implement the Forest 
Practice Act (Title 76.09 Revised Code of Washington), and Stewardship 
of Non-Industrial Forests and Woodlands (Title 76.13 RCW). The rules 
are administered by the WDNR, and related habitat assessments and 
surveys are coordinated with the Washington Department of Fish and 
Wildlife (WDFW).
    Washington's forest practice rules are more protective of riparian 
and aquatic habitats, and require more trees to be left than Oregon's 
forest practice rules. Clearcuts are limited to 120 ac (49 ha) in size 
with exceptions given up to 240 ac (97 ha). In all cutting units, three 
wildlife reserve trees (over 12 in (30)) in diameter), two green 
recruitment trees (over 10 in (25 cm) diameter, 30 ft (9 m) in height, 
and \1/3\ of height in live crown) and two logs (small end diameter 
over 12 in (30 cm), over 20 ft (6 m) in length) must be retained per 
acre of harvest. These trees may be counted from those left in the 
``riparian management zones,'' which range in size from 80 to 200 ft 
(25 to 62 m) for fish-bearing streams, depending on the size of the 
stream, the class of site characteristics, and whether the harvest 
activity is east or west of the Cascade crest (Washington 
Administrative Code 222-30). Riparian management zones for non fish-
bearing streams are 50 ft (15 m), applied to specified areas along the 
streams. Seventy acres (28 ha) of habitat must be protected around all 
known spotted owl activity centers during the nesting season, outside 
of which logging can occur. Washington's forest practices rules do not 
specifically preserve key components of fisher habitat.
    Riparian buffers may provide some habitat for fishers, primarily 
along perennial fish-bearing streams where the riparian buffer 
requirements are widest. In western Washington--the majority of the 
State area addressed by the petition, the Forest Practice Rules require 
90 to 200 ft (27 to 61 m) buffers on fish-bearing streams, depending on 
site class (site potential for tree growth). The riparian buffer of 
fish-bearing streams is divided into three zones, including a 50-ft 
(15-m) ``core zone'' where no timber cutting is permitted. The 
remainder of the buffer is divided into an ``inner zone'' where partial 
harvest is permitted consistent with achieving stand basal area 
requirements, and an outer zone where logging must generally leave at 
least 20 conifers per acre, of 12 inches DBH or greater. For parcels of 
20 contiguous acres or less, landowners with total parcel ownership of 
less than 80 forested acres are exempt from the riparian buffer 
requirements described above; less stringent rules apply to those 
parcels.
    While it has been noted that the Washington State Forest Practice 
Rules do not specifically address the fisher and its habitat 
requirements, some habitat components important to the fisher, like 
snags, canopy cover, etc., are likely to be retained as a result of the 
rules.
Oregon
    In Oregon, two final forest management plans for state forests in 
northwest and southwest Oregon were approved by the Oregon Board of 
Forestry in January 2001: the Northwest Oregon State Forests Plan and 
the Southwest Oregon State Forests Plan. The Elliott State Forest 
Management Plan was approved in 1994 and the Elliott State Forest 
Habitat Conservation Plan for northern spotted owls and marbled 
murrelets was approved in 1995, however, both the management plan and 
HCP are now being revised. Additionally, Oregon has proposed to develop 
the Western Oregon State

[[Page 18786]]

Forests Habitat Conservation Plan for threatened and endangered species 
and other species of concern on western Oregon state forests in 2004-
2005.
    The management plans for Oregon's State Forests generally appear to 
be of little benefit to the fisher. The 18,074 ac (73 km\2\) of State 
forest lands in the Southwest Oregon State Forests Plan area consists 
of generally small parcels that range in size from 40 ac to 3,500 ac 
(0.16 km\2\ to 14 km\2\) and are widely scattered. There are no 
specific measures for or mention of the fisher in the plan. The 
Northwest Oregon State Forests Management Plan provides management 
direction for 615,680 ac (2,491 km\2\) of state forest land, located in 
twelve northwest Oregon counties, but has no specific provisions for 
fishers. Both plans include provisions to protect some forest reserves, 
but these are not likely to benefit the fisher because of the 
fragmented nature of the lands. In Oregon, the fisher is designated a 
protected non-game species, and is listed as a ``Sensitive Species--
Critical Category.'' The Oregon Department of Fish and Wildlife (ODFW) 
does not allow take of fisher in Oregon, but some fishers may be 
injured and killed by traps set for other species. Training and testing 
is required of applicants for trapping licenses in order to minimize 
the potential take of non-target species such as fisher.
    The Oregon Department of Forestry (ODF) implements the Forest 
Practice Administrative Rules and Forest Practices Act (ODF 2000). 
Interim procedures (section 629-605-0180, Oregon Forest Practice Rules) 
exist for protecting sensitive resource sites on all State, county, and 
private lands in Oregon. These procedures apply only to threatened and 
endangered species, and to bird species listed as ``sensitive'' in the 
rules, and currently do not apply to the fisher. Prior approval from 
the State Forester is also required before operating near or within 
critical wildlife habitat sites (629-605-0190), including habitat of 
species classified by ODFW as threatened or endangered, or any 
federally listed species, but fisher does not currently benefit from 
this status.
    Although Oregon's rules governing forest management on State, 
county and private lands do not directly protect the fisher or its 
habitat, the rules may provide some fisher habitat elements. In 
clearcut harvest units that exceed 25 ac (10 ha), operations must 
retain two snags or two green trees, and two downed logs per acre. 
Green trees must be over 11 in (28 cm) DBH and 30 ft (9m) in height, 
and down logs must be over 6 feet long and 10 cubic feet in volume. 
Riparian management areas (RMAs) provide for vegetation retention along 
fish-bearing (Type F) and domestic-use streams without fish (Type D), 
in a band of 20 to 100 ft (6 to 30 m) width, depending on stream size 
and type. In general, RMAs for fish-bearing and domestic-use streams 
require no tree harvesting within 20 ft (6 m) of the stream, and, 
within the entire RMA, retention of a minimum basal area of conifer 
trees (40 trees per 1000 ft of stream for thinning operations). Along 
fish-bearing streams, the RMAs are intended to become similar to mature 
streamside stands, dominated by conifers; streams lacking fish will 
have sufficient streamside vegetation to support the functions and 
processes important to downstream fisheries, domestic water use, and 
wildlife habitat. Similar guidelines retain vegetation around wetlands, 
lakes, seeps and springs. No RMA is required for streams that do not 
provide for domestic water use or bear fish, for small wetlands, or for 
lakes 0.5 ac (.2 ha) or less.
California
    The State of California manages relatively little forested lands. 
California has eight Demonstration State Forests totaling 71,000 ac 
(287 km\2\), of which less than 20,000 ac (81 km\2\) are within the 
current range of the fisher. These forests are managed primarily to 
achieve maximum sustained production of forest products, not for late-
successional characteristics, and appear to provide little habitat for 
the fisher. California has about 270 State Park units and 1.3 million 
ac (5260 km\2\), which are mostly outside the historic range of the 
fisher and appear to provide little habitat for fishers. The largest 
state park in the fisher's historic range, Humboldt Redwoods State 
Park, includes about 53,000 ac (214 km\2\) in southern Humboldt County 
and has a Preliminary General Plan (June 2001) with a stated goal of 
protecting California species of concern. Although it does not include 
specific measures for fisher management, the general emphasis on 
retention of some habitat components (snags, canopy cover, etc.) will 
provide incidental benefits to the fisher.
    The State of California classifies the fisher as a furbearing 
mammal that is protected from commercial harvest, which provides 
protection to the fisher in the form of minor fines for illegal 
trapping; trapping is discussed further under Factor B. The fisher is 
not listed under the California Endangered Species Act or as a State 
``fully protected'' species and thus does not receive protections 
available under those statutory provisions. The California Department 
of Fish and Game (CDFG) has identified the fisher as a Species of 
Special Concern (CDFG 1986). This status is applied to animals not 
listed under the Federal or the State endangered species acts, but 
judged vulnerable to extinction.
    The California Environmental Quality Act (CEQA) requires disclosure 
of potential environmental impacts of public or private projects 
carried out or authorized by all non-Federal agencies in California. 
CEQA guidelines require a finding of significance if the project has 
the potential to ``reduce the number or restrict the range of an 
endangered, rare or threatened species'' (CEQA Guidelines 15065). The 
lead agency can either require mitigation for unavoidable significant 
effects, or decide that overriding considerations make mitigation 
infeasible (CEQA 21002), although such overrides are rare. CEQA can 
provide protections for a species that, although not listed as 
threatened or endangered, meet one of several criteria for rarity (CEQA 
15380).
Regulatory Mechanisms for Private and State Timberlands
    In California, logging activities on commercial (private and State) 
forestlands are regulated through a process that is separate from but 
parallel to CEQA. Under CEQA provisions, the State has established an 
independent regulatory program to oversee timber management activities 
on commercial forestlands, under the Z'berg-Nejedly Forest Practice Act 
of 1973 and the California Forest Practice Rules (FPRs) (CDF 2003). The 
California FPRs are administered by the California Department of 
Forestry and Fire Protection (CDF), and apply to commercial harvesting 
operation for non-Federal, non-Tribal landowners of all sizes.
    While the FPRs may incidentally protect some habitat or habitat 
elements used by the fisher, the rules do not require fisher surveys, 
protection of fisher or fisher den sites, or a mechanism for 
identifying individual or cumulative impacts to the fisher or its 
habitat.
    The California FPRs provide specific, enforceable protections for 
species listed as threatened or endangered under CESA or the ESA, and 
for species identified by the California Board of Forestry as 
``sensitive species'' (CDF 2003); however, the fisher is not currently 
on any of these lists. The FPRs also include intent language about 
reducing significant impacts to non-listed species (FPR Sec.  919.4, 
939.4, 959.4) and maintaining functional wildlife habitat (FPR Sec.  
897(b)(1)), however,

[[Page 18787]]

implementation of these measures to provide protection to the fisher is 
not documented or tracked.
    Some California FPR provisions could incidentally contribute to 
protection of important elements of fisher habitat, such as late seral 
forests and snags, downed wood, and large live trees containing the 
structural attributes that are used by fishers for resting and denning 
sites and contribute to the diversity and abundance of prey species. 
These are discussed below.
    While the California FPRs generally require that snags within a 
logged area be retained to provide wildlife habitat, they also allow 
exceptions to this requirement. The FPRs do not require the retention 
of downed woody material, decadent or other large trees with structural 
features such as platforms, cavities, and basal hollows, which appear 
to be important components of fisher habitat. Some timber operations, 
such as salvage, fuelwood harvest, powerline right-of-way clearing, and 
fire hazard reduction are exempt from timber harvest plan preparation 
and submission requirements. In 2002, new rules were passed that 
prohibit the harvest of large old trees under exemptions, although 
harvest is still allowed in cases of safety, building construction, or 
when the tree is dead or will be dead within the year. Overall 
retention of habitat features important to fishers does occur to some 
degree but is specific to fishers.
    California's FPRs provide for disclosure of impacts to late 
successional forest stands, in some cases. The rules require that 
information about late successional stands be included in a timber 
harvest plan when late successional stands over 20 ac (8 ha) in size 
are proposed for harvesting and such harvest will ``significantly 
reduce the amount and distribution of late succession forest stands'' 
(FPR Sec.  919.16, 939.16, 959.16). If the harvest is found to be 
``significant,'' FPR Sec.  919.16 requires mitigation of impacts where 
it is feasible. In practice, such a finding during plan review can be 
challenged by the landowner.
    The California FPRs require retention of trees within riparian 
buffers to maintain a minimum canopy cover, dependent on stream 
classification and slope. The rules currently mandate retention of 
large trees in watersheds identified as having ``threatened or 
impaired'' values (watersheds with listed anadromous fish). For Class I 
(fish-bearing) streams, the 10 largest conifer trees per 330 ft (133 m) 
of stream channel must be retained along qualifying watercourses. These 
trees are retained within the first 50 ft (15 m) of permanent woody 
vegetation measured out from the stream channel; this provides about 26 
trees per acre within that zone. The threatened and impaired provision 
applies to many streams within the fisher's range in northern 
California, but not to most of the Sierra Nevada nor to most of the 
upper Trinity River basin (where fishers still occur), and is set to 
expire in 3 years. Where applied, the threatened and impaired rules 
should result in the retention of some large trees of value to fishers, 
but the value may be limited, as it applies to only a small part of any 
affected watershed and in a fragmentary pattern. Averaged over the 
landscape, the measure provides on average less than one retained tree 
per forested acre in qualifying watersheds, based on an evaluation of a 
sample of timber harvest plans (Scott Osborn, CDFG, pers. comm. 2003). 
Over time, the retained trees may develop late seral and decadent 
characteristics, but this is likely to take place over time scales of 
decades and centuries.
    Outside of ``threatened and impaired'' watersheds, watercourse 
protection measures are limited. Class I streams must retain at least 
50 percent of the overstory and 50 percent of the understory. No 
minimum canopy closure requirements are specified for Class II and 
Class III streams. Harvest plans are required to leave 50 percent of 
the existing total canopy including understory, and provide no 
protection for large trees or other late-seral habitat elements.
Regulations Providing Protections for Other Listed Species
    Regulatory protections for habitat of the federally-listed northern 
spotted owl, marbled murrelet, and anadromous salmonids may provide 
some elements that benefit the fisher, but because these protections 
are not implemented consistent with specific life history requirements 
of the fisher (wide ranging, avoids open areas, etc.), these measures 
may be of limited conservation value for fishers. For example, fishers 
are likely to require larger habitat blocks in contiguous spacing 
(Lewis and Stinson 1998). Finally, a large part of the current and 
historic west coast range of the fisher is outside the range of the 
listed owl, murrelet and salmonids.
Regulatory Mechanisms for Private and State Timberlands
    In California, logging activities on commercial (private and State) 
forestlands are regulated through a process that is separate from but 
parallel to CEQA. Under CEQA provisions, the State has established an 
independent regulatory program to oversee timber management activities 
on commercial forestlands, under the Z'berg-Nejedly Forest Practice Act 
of 1973 and the California Forest Practice Rules (FPRs) (CDF 2003). The 
California FPRs are administered by the California Department of 
Forestry and Fire Protection (CDF), and apply to commercial harvesting 
operation for non-Federal, non-Tribal landowners of all sizes.
    Based on the best available information on fisher habitat, fishers 
can use areas of younger (non-old-growth) forest, but the presence of 
late seral elements within those forests is important in providing 
resting/denning sites and adding to increased foraging opportunities 
and prey base.
    The California FPRs provide specific, enforceable protections for 
species listed as threatened or endangered under CESA or the ESA, and 
for species identified by the California Board of Forestry as 
``sensitive species'' (CDF 2003); however, the fisher is not currently 
on any of these lists. The FPRs also include intent language about 
reducing significant impacts to non-listed species (FPR Sec.  919.4, 
939.4, 959.4) and maintaining functional wildlife habitat (FPR Sec.  
897(b)(1)). However, this language has not been effective in securing 
protections for the species, due to the lack of specific enforceable 
measures in the rules. Moreover, FPR language (Sec.  1037.5(f)) makes 
it difficult for CDF to adopt mitigation measures above those specified 
in the California FPRs, unless the landowner agrees to them. In 
comments to CDF on timber harvest plans in northwestern California, 
CDFG has raised concerns regarding adverse effects on fishers and other 
species associated with the loss of late seral habitat elements and has 
recommended retention of such elements. These efforts have generally 
not been successful in effecting mitigation measures for the fisher and 
other late-seral species (Ken Moore, CDFG, Yreka, pers. comm., 2003; 
Scott Osborn, CDFG, pers. comm., 2003).
    Some California FPR provisions could incidentally contribute to 
protection of important elements of fisher habitat, such as late seral 
forests and snags, downed wood, and large live trees containing the 
structural attributes that are used by fishers for resting and denning 
sites and contribute to the diversity and abundance of prey species. 
These are discussed below.
    While the California FPRs generally require that all snags within a 
logged area be retained to provide wildlife habitat, they also allow 
broad

[[Page 18788]]

discretionary exceptions to this requirement, which greatly reduce the 
effectiveness of the snag retention requirement. The FPRs do not 
require the retention of downed woody material, making retention of 
these structural elements voluntary. Similarly, the California FPRs do 
not contain enforceable and/or effective measures for protection of 
decadent or other large trees with structural features such as 
platforms, cavities, and basal hollows, which appear to be important 
components of fisher habitat. Some timber operations, such as salvage, 
fuelwood harvest, powerline right-of-way clearing, and fire hazard 
reduction are exempt from timber harvest plan preparation and 
submission requirements. CDF considers applications for exemptions as 
ministerial in nature, and therefore exemptions receive minimal review 
by CDF. In 2002, new rules were passed that prohibit the harvest of 
large old trees under exemptions, although harvest is still allowed in 
cases of safety, building construction, or when the tree is dead or 
will be dead within the year.
    California's FPRs provide for disclosure of impacts to late 
successional forest stands, in some cases. The rules require that 
information about late successional stands be included in a timber 
harvest plan when late successional stands over 20 ac (8 ha) in size 
are proposed for harvesting and such harvest will ``significantly 
reduce the amount and distribution of late succession forest stands'' 
(FPR Sec.  919.16, 939.16, 959.16). If the harvest is found to be 
``significant,'' FPR Sec.  919.16 requires mitigation of impacts where 
it is feasible. In practice, such a finding during plan review is very 
rare and likely to be challenged by the landowner. Also, few proposed 
harvests trigger the late successional analysis because very little 
forest on commercial timberlands meets the definition of late 
successional forest, due to past logging history (Curt Babcock, CDFG, 
pers. comm. 2003).
    The California FPRs require retention of trees within riparian 
buffers to maintain a minimum canopy cover, dependent on stream 
classification and slope. The FPR prescriptions are not designed or 
intended to protect late seral habitat, but this may occur at times. 
The rules currently mandate retention of large trees in watersheds 
identified as having ``threatened or impaired'' values (watersheds with 
listed anadromous fish). For Class I (fish-bearing) streams, the 10 
largest conifer trees per 330 ft (133 m) of stream channel must be 
retained along qualifying watercourses. These trees are retained within 
the first 50 ft (15 m) of permanent woody vegetation measured out from 
the stream channel; this provides about 26 trees per acre within that 
zone. There are no additional protection measures required for non-
fish-bearing streams (classes II and III) within ``threatened or 
impaired'' watersheds. The threatened and impaired provision applies to 
many streams within the fisher's range in northern California, but not 
to most of the Sierra Nevada nor to most of the upper Trinity River 
basin (where fishers still occur), and is set to expire in 3 years. 
Where applied, the threatened and impaired rules should result in the 
retention of some large trees of value to fishers, although the 
protective value is limited, as it applies to only a small part of any 
affected watershed and in a fragmentary pattern. Averaged over the 
landscape, the measure provides on average less than one retained tree 
per forested acre in qualifying watersheds, based on an evaluation of a 
sample of timber harvest plans (Scott Osborn, CDFG, pers. comm. 2003), 
and on Arcata FWO calculations on watercourse density on commercial 
timberland ownerships in northwestern California. Also, in many 
watersheds, few large trees remain along watercourses, thus most of the 
trees retained under this measure are likely to be of a size and age 
that provide little current value as late seral elements commonly used 
by fishers. Over time, the retained trees may develop late seral and 
decadent characteristics, but this is likely to take place over time 
scales of decades and centuries.
    Outside of ``threatened and impaired'' watersheds, watercourse 
protection measures are limited. Class I streams must retain at least 
50 percent of the overstory and 50 percent of the understory. No 
minimum canopy closure requirements are specified for Class II and 
Class III streams. Harvest plans are required to leave 50 percent of 
the existing total canopy including understory, and provide no 
protection for large trees or other late-seral habitat elements.

Habitat Conservation Plans (HCPs)

    Some non-Federal lands are managed under HCPs with strategies that 
conserve habitat. These HCPs may provide some incidental benefit to 
fishers and some have fisher-specific protection measures. Habitat 
conservation plans cover large areas within the historic range of the 
fisher, particularly in western Washington and northwestern California. 
Although the fisher is a covered species in seven HCPs within 
Washington and California, the species is currently known to be present 
only on lands under two California HCPs. In most HCPs, the areas where 
late successional habitat will be protected or allowed to develop are 
mostly in riparian buffers and smaller blocks of remnant old forest. 
The HCP conservation strategies generally do not provide the large 
blocks of forest with late seral structure that appear to be important 
for sustaining resident fisher populations, particularly for providing 
denning and resting sites.
    In conclusion, the primary threats are the loss and fragmentation 
of habitat and further decline and isolation of the remaining small 
populations. Any of the key elements of fisher habitat (see Habitat 
section) may be affected by Federal and State management activities. 
Reduction of any of these elements could pose a risk to the fishers. 
Activities under Federal regulatory control that result in fisher 
habitat fragmentation or population isolation pose a risk to the 
persistence of fishers. A large proportion of forests within the range 
of the West Coast DPS for the fisher are managed under the NWFP or 
SNFPA. These regional planning efforts provide for retention and 
recruitment of older forests, and provide for spatial distribution of 
this type of habitat that will benefit late successional forest 
dependent species such as the fisher. The adequacy of these plans, 
however is uncertain, as evidenced in the FEMAT's own assessment of 
fisher viability under the NWFP.
    Proposed changes to both the NWFP and SNFPA are in progress, which 
could weaken habitat measures that benefit the fisher. Even with these 
plans in place, timber harvest, fuels reduction treatments, and road 
construction may continue to result in the loss of habitat and habitat 
connectivity in areas, resulting in a negative impact on fisher 
distribution, abundance and recovery/recolonization potential.
    The same potential risks apply to non-Federal forested lands as 
discussed for lands under Federal regulatory control. Protections 
provided under state regulation of forest practices are less than 
provided on Federal lands, where the NWFP and SNFPA provide greater 
consideration of late-successional forest and dependent species, and of 
forest management at larger geographic scales. Existing regulatory 
processes for non-Federal, non-Tribal timberlands in California and 
Washington do not include specific measures for management and 
conservation of fishers or fisher habitat. Regulations regarding late 
successional forest rarely provide protection of these forests on

[[Page 18789]]

commercial timberlands. This is largely because the regulations lack 
specific and enforceable conservation measures for these forests, and 
for most unlisted wildlife species, including the fisher. While the 
State regulatory process for these lands in all three States 
incidentally protects some fisher habitat via the Forest Practice 
Rules, the benefits are limited and do not include strategies which 
target either the fisher or key fisher habitat requirements. Existing 
habitat conservation plans for non-Federal timberlands provide some 
additional benefits to the fisher. These plans are focused on providing 
some level of protection for the habitat of spotted owls, marbled 
murrelets, and listed salmonids, which can protect important habitat 
elements for the fisher where habitat overlaps. However, many of these 
plans only protect occupied habitat, and harvest deferrals may be 
lifted if the mature stands no longer support listed species. Thus, 
benefits to the fisher from these HCPs may be ephemeral, especially in 
the case of listed species decline, like that of the spotted owl 
population occurring in Washington. HCPs only apply to a small part of 
the fisher's currently occupied range on non-Federal lands in 
California and Oregon, and the adequacy of the measures in these plans 
is uncertain. Because of the loss and fragmentation of low-elevation 
habitat, large geographic areas that were once occupied have become 
unsuitable, which poses a significant challenge for fisher genetic 
exchange across isolated patches of habitat.
    In addition to the inadequacy of regulations to address fisher 
habitat requirements, current trapping regulations in Washington, 
Oregon, and California, while prohibiting intentional trapping of 
fishers, do not provide accurate reporting of the numbers of incidental 
captures of fishers, and appear inadequate to control such incidental 
trapping where fishers are present. Any source of additional mortality 
in small fisher populations could prevent recovery or reoccupation of 
suitable habitat (Lewis and Stinson 1998; Lewis and Zielinksi 1996).
    It is uncertain whether current regulations will be effective in 
reducing the level of threat to the fisher. We therefore believe that 
existing regulatory mechanisms are not sufficient to protect the DPS as 
a whole from the acknowledged habitat pressures discussed under Factors 
A and E.
    Factor E. Other natural or manmade factors affecting the continued 
existence of the species. Fisher populations in the West Coast DPS are 
small and isolated and may be threatened by numerous factors including 
inbreeding depression and unpredictable variation (stochasticity) in 
demographic or environmental characteristics. Other natural or 
anthropogenically-influenced factors, including urban development, 
barriers to dispersal, contaminants, pest control programs, non-target 
poisoning, stand-replacing fire, timber harvest, accidental trapping in 
manmade structures, decrease in prey base, and climate change may cause 
additional fisher declines. Because of small population size, 
accidental death is a threat.

Other Causes of Mortality

    There have been several incidents of fishers being found dead in 
open water tanks. The remains of eight fishers were discovered in an 
abandoned water tank near a logging road in the northwestern California 
Coast Ranges (Folliard 1997). The tank had been used to store water for 
transferring into tank trucks to spread on roads for dust abatement 
during summer months. The fishers had entered the cylindrical 13-foot-
long, 7.5-foot-deep tank from a lidless, 1.5-foot opening in the top. 
Fisher remains were the only species found inside. It was apparent from 
the carcasses' different stages of decay that the fishers had been 
trapped over a period of several years. In another instance of a 
manmade structure trapping fishers, Truex et al. (1998) reported that a 
5-year-old female fisher died in the southern Sierra Nevada study area 
due to a combination of starvation and exposure after becoming 
entrapped in an uncovered, empty water storage tank. This source of 
mortality is cause for concern.

Population Size and Isolation

    Preliminary analyses indicate West Coast fisher populations, 
particularly in the southern Sierra, may be at significant risk of 
extinction because of small population size and factors consequent to 
small population size such as isolation, low reproductive capacity, 
demographic and environmental stochasticity. A scarcity of sightings in 
Washington, Oregon, and the northern and central Sierra Nevada of 
California suggests that fisher is extirpated from most of its 
historical range in Washington, Oregon, and California (Zielinski et 
al. 1997b; Carroll et al. 1999; Aubry et al. 2000). The southern Sierra 
Nevada and northern California/Oregon Siskiyou populations are the only 
naturally-occurring, known breeding populations of fishers in the 
Pacific region from southern British Columbia to California that we 
have been able to identify (Zielinski et al. 1997b).
    The current rarity of fishers in Washington brings their continued 
existence there into question. Eleven years ago, Thomas et al. (1993) 
stated that existing fisher populations in northern Oregon and 
Washington were at a medium to high risk of extirpation on National 
Forest lands within the next 50 years. According to FEMAT (1993), it 
was unknown whether the individual fishers that may exist in Washington 
could repopulate the State in the future. Recovery of the fisher in 
Washington will probably not occur without reintroductions (Lewis and 
Stinson 1998). Immigration of fishers into Washington from British 
Columbia, Idaho, or Montana is unlikely to provide significant 
demographic support to Washington's fisher population; fisher 
populations in adjacent parts of Idaho and British Columbia are small, 
the number of dispersing individuals is probably very low (Heinemeyer 
1993), and the geographical separation is large. Reintroductions have 
apparently been successful in some, but not all other parts of the 
fisher's national range.
    The introduced population in the southern Cascades of Oregon is 
small and isolated. It stems from the release of 28 fishers from 
British Columbia between 1961 and 1980, and an additional release of 13 
fishers from Minnesota in 1981 (Aubry et al. 2002; Drew et al. 2003). 
Aubry et al. (in press 2003) concluded, ``The high degree of 
relatedness among fishers in the southern Cascade Range (R = .56) is 
consistent with the hypothesis that this population is small and 
isolated.'' This reintroduced population is separated from the 
northwestern California/southwestern Oregon population by large 
expanses of non-forested areas, an interstate highway (Interstate 5), 
recreational developments, and densely populated areas. The isolation 
of these populations from each other in Oregon is further demonstrated 
by evidence indicating that there has been no genetic exchange between 
fishers in the northern Siskiyou Mountains and those in the southern 
Cascade Range (Aubry et al. in press 2003). Small size and isolation 
make the Oregon populations vulnerable to extirpation.
    Because of the apparent loss of viable fisher populations from most 
of Oregon and Washington, and the northern contraction in the British 
Columbia populations, fishers in California are reproductively isolated 
from fishers in the rest of North America. This isolation precludes 
both immigration and associated genetic interchange, increasing the 
vulnerability of the California/southern Oregon populations to the 
adverse effects of deterministic

[[Page 18790]]

and stochastic factors. Wisely et al. (in litt. 2003) documented that 
fishers in northern California already have lower genetic diversity 
than other populations in North America. Drew et al. (2003) cite 
evidence of genetic divergence between the California and British 
Columbia fisher populations; since becoming isolated, the California 
populations have lost a genetic haplotype still found in British 
Columbia fishers. The genetic divergence of California populations from 
each other and from British Columbia fishers could be associated with 
adaptation to local conditions, but is more likely the result of 
reduction of population numbers with habitat loss (Drew et al. 2003). 
Isolation makes it unlikely that in the event of population decline, 
immigration from other populations could temporarily augment the 
population, rescuing it from extinction.
    Genetic studies using mitochondrial and nuclear DNA sequencing 
indicate that California populations, in particular, differ strongly in 
haplotype frequencies from each other and from all other populations 
(Drew et al. 2003). These results are consistent with the conclusions 
of Aubry and Lewis (2003) that native populations in California and the 
reintroduced population in southwestern Oregon have become isolated 
from the main body of the species' range due to the apparent 
extirpation of fishers in Washington and northern Oregon. According to 
Drew et al. (2003), their findings suggest that gene flow once occurred 
between fisher populations in British Columbia and those in the Pacific 
states, but extant populations in these regions are now genetically 
isolated. The southern Sierra Nevada population is geographically 
isolated from others by approximately 420 km (260 mi) (Zielinski et al. 
1995, 1997b). There is a low probability that it could be rescued 
through migration of individuals from other populations were it to 
decline, since the distance to the nearest population is almost four 
times the species' maximum dispersal distance of 66 mi (107 km) as 
reported by York (1996). The unexpected magnitude of Pacific states 
fishers' genetic structure and lack of gene flow indicates that 
intermediate distances may represent evolutionarily important barriers 
to movement that can facilitate rapid genetic divergence (Wisely et al. 
in litt. 2003). Truex et al. (1998) concluded that, ``Recolonization of 
the central and northern Sierra Nevada may be the only way to prevent 
fisher extinction in the isolated southern Sierra Nevada population.''
    Indications that extant fisher populations are small in size 
include the apparent reduction in the range of the fisher on the west 
coast, the lack of detections or sightings over much of its historical 
distribution, and the apparently high degree of genetic relatedness 
within some populations. Small fisher population sizes are cause for 
concern, particularly considering that the West Coast populations are 
isolated from the larger continental populations and may have high 
female mortality (Truex et al. 1998). Small populations are at risk of 
extinction solely from demographic and environmental stochasticity, 
independent of deterministic factors such as anthropogenic habitat loss 
(Lande and Barrowclough 1987; Lande 1993). Random fluctuations in 
gender ratio, fecundity, mortality, droughts, cold weather, heavy snow 
years and other temporal environmental changes can lead to declines 
that, in small populations, result in rapid extinction. These factors 
present threats to the long-term survival of isolated populations such 
as the southern Sierra Nevada population (Lamberson et al. 2000). 
Catastrophes, such as stand-replacing fire or severe storms, magnify 
risk of extinction further (Shaffer 1987; Lande 1993).
    According to Heinemeyer and Jones (1994), the greatest long-term 
risk to the fisher in the western United States is probably population 
extinction due to isolation of small populations. Fishers are known to 
be solitary and territorial with large home ranges. This results in low 
population densities as the population requires a large amount of 
quality habitat for survival and proliferation. Additionally, fishers 
are long-lived, have low reproductive rates, and small dispersal 
distances. Given the apparent reluctance of fishers to cross open areas 
(Coulter 1966; Kelly 1977; Powell 1977; Buck et al. 1994; Jones and 
Garton 1994), it is more difficult for fishers to locate and occupy 
distant, but suitable, habitat. These factors together imply that 
fishers are highly prone to localized extirpation, their colonizing 
ability is somewhat limited, and their populations are slow to recover 
from deleterious impacts. Isolated populations are therefore unlikely 
to persist.
    Some fisher populations in northeastern North America have shown 
patterns of rapid density fluctuation consistent with those following 
cycles in prey numbers (deVos 1952; Rand 1944), or with changes 
expected for animals whose density-dependent feedback comes through 
changes in mortality rather than in reproduction, allowing them to 
recover into areas from which they had been extirpated. Western 
populations, however, do not appear to be recovering from early 
overtrapping and habitat degradation. Powell and Zielinski (1994) 
state:

    This pattern of rapid population increase has not been observed 
in western populations, many of which have failed to recover despite 
decades of protection from trapping (e.g., northern Sierra Nevada, 
Olympic Peninsula), reintroductions (e.g., Oregon), or both. 
Therefore, one or more major life requisites must be missing. 
Suitable habitat may be limited, colonization of suitable habitat 
may be limited due to habitat fragmentation, or some other factor or 
combination of factors may be involved.

    Low fecundity retards the recovery of populations from declines, 
further increasing their vulnerability. As stated above, fishers have 
very low reproductive capacity. After 2 years of age, they generally 
produce only one to four kits per year, and only a portion of all 
females breed (Powell 1993; Truex et al. 1998; Lamberson et al. 2000). 
Truex et al. (1998) documented that of the females in the southern 
Sierra Nevada study area (one of three study areas that they analyzed 
in California), about 50 to 60 percent successfully gave birth to 
young. In the study area they analyzed on the North Coast, however, 73 
percent of females gave birth to young in 1995, but only 14 percent 
(one of seven) did so in 1996, indicating fisher reproductive rates may 
fluctuate widely. Low survival rates for kits, coupled with low 
reproductive rates, would result in very low reproductive success 
rates. In their study on the west slope of the Cascade Range in 
southern Oregon, Aubry et al. (2002) radio-collared 13 females and 
monitored two to four adult females each year from 1995 to 2001. 
Although their data are preliminary at this point, they found that the 
average annual reproductive success was only 44 percent.
    Female survival has been shown to be the most important single 
demographic parameter determining fisher population stability (Truex et 
al. 1998; Lamberson et al. 2000). Truex et al. (1998) documented a low 
annual survival rate, pooled across years, of 61.2 percent of adult 
female fishers in the southern Sierra Nevada from 1994 to 1996, 72.9 
percent for females and 85.5 percent for males in their eastern Klamath 
study area, and 83.8 percent for both females and males in their North 
Coast study area. Addressing the southern Sierra Nevada population, 
Truex et al. (1998) conclude that, ``High annual mortality rates raise 
concerns about the long-term viability of this population.'' Lamberson 
et al. (2000) used a model (deterministic, Leslie stage-based matrix) 
to gauge risk of

[[Page 18791]]

extinction for the southern Sierra Nevada population of the fisher and 
found that the population has a very high likelihood of extinction 
given reasonable assumptions with respect to demographic parameters. 
They concluded, ``In our model population, growth only occurs when 
parameter combinations are extremely optimistic and likely unrealistic: 
if female survival and fecundity are high, other parameters can be 
relaxed to medium or low values. If female survival and fecundity are 
medium and all other parameters high, a steady decline toward 
extinction occurs.''
    As with any small, isolated population, risks of extinction are 
enhanced by stochastic factors (Lamberson et al. 2000). Demographic 
stochasticity, the chance events associated with annual survival and 
reproduction, and environmental stochasticity, temporal fluctuations in 
environmental conditions, tend to reduce population persistence 
(Shaffer 1981; Boyce 1992). Habitat specificity coupled with human-
induced habitat fragmentation may also contribute to the exceptionally 
low levels of gene flow (migrants per generation) estimated among 
populations of fishers (Wisely et al. in litt. 2003). Wisely et al. (in 
litt. 2003) found that populations of the fisher exhibit high genetic 
structure (FST = 0.45, SE = 0.07) and limited gene flow (Nm < 1) within 
their 994 mi (1,600 km) long peninsular distribution down through 
Washington, Oregon, and California. They state concerns about the 
future viability of the western fisher: * * * we found that * * * 
genetic diversity decreases from the base [British Columbia] to the tip 
[southern Sierra Nevada] of the peninsula, and that populations do not 
show an equilibrium pattern of isolation-by-distance. Genetic structure 
was greater at the periphery than at the core of the distribution and 
our data fit a one-dimensional model of stepping-stone range expansion. 
Multiple lines of paleontological and genetic evidence suggest that the 
fisher recently (<5000 ybp) expanded into the mountain forests of the 
Pacific coast. The reduced dimensionality of the distribution of the 
fisher in the West appears to have contributed to the high levels of 
structure and decreasing diversity from north to south. These effects 
were likely exacerbated by human-caused changes to the environment. The 
low genetic diversity and high genetic structure of populations in the 
southern Sierra Nevada suggest that populations in this part of the 
geographic range are vulnerable to extinction.
    It is difficult for subpopulations to rescue each other when 
distributed in such a narrow, linear fashion north-south peninsular 
distribution. Even isolated from other threats, the north-south 
peninsular distribution of fishers in the Sierra Nevada is a risk 
factor for the southern Sierra Nevada population. Being at the 
southernmost extent of the genus' distribution, the population already 
exists at the edge of environmental tolerances. The loss of remaining 
genetic diversity may lead to inbreeding and inbreeding depression. 
Given the recent evidence for elevated extinction rates of inbred 
populations, inbreeding may be a greater general threat to population 
persistence than is generally recognized (Vucetich and Waite 1999).
    Combinations of factors can interact to produce significant 
cumulative risk. Lamberson et al. (2000) give the following example: if 
demographic stochasticity results in lower than average recruitment of 
female kits into a population for three consecutive years, and this is 
followed by two heavy-snow winters and one large fire, the population 
may quickly become in jeopardy of local extinction. Wisely and others 
(in litt. 2003) ``have demonstrated isolation among populations with 
limited exchange suggesting that populations on the Pacific coast have 
little demographic buffer from variation in the population growth rate. 
Immediate conservation action may be needed to limit further erosion of 
the unique genetic architecture found in this one-dimensional 
metapopulation.''
    In summary, unregulated trapping for furs began in the 1700s; 
predator bounties began in the 1800s and extended to 1960; extensive, 
lethal predator control programs were used until the mid-1970s. These 
factors have likely impacted fishers for nearly two centuries and were 
exacerbated by loss and fragmentation of habitat from urban growth and 
development, forest management activities, and road construction. The 
remaining two populations are threatened with extirpation due to their 
size and isolation. There is substantial information indicating that 
the interaction of all the factors above may cause the populations of 
fishers in their west coast range to become significantly at risk of 
extirpation.
Conservation Activities
    This fiscal year, the Pacific Region (Region 5) of the U.S. Forest 
Service is due to complete a conservation assessment for the fisher in 
the Sierra Nevada Mountains. This effort is part of the Sierra Nevada 
Framework planning document and is a collaborative effort including 
scientists from the State and Federal agencies. The assessment may be 
used to develop a conservation strategy for the Sierra Nevada fisher 
populations in California.
    The timber industry and their representatives, including Sierra 
Pacific Industries, Simpson Timber Company and the California Forestry 
Association have indicated willingness to develop a conservation 
strategy to, if appropriate, conduct a reintroduction and/or relocation 
strategy in California. Their participation could include funding, 
staffing, and assistance with analysis and planning.
    The State of Washington has completed a reintroduction feasibility 
study and has identified several sites in the Washington Cascades and 
the Olympic peninsula where sufficient potential habitat exists to 
support a fisher population. Reintroduction efforts and evaluation by 
the State are ongoing and would potentially compliment efforts to 
establish additional populations throughout the range of the fisher.
Finding
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this species. We reviewed the petition, available published 
and unpublished scientific and commercial information, and information 
submitted to us during the public comment period following our 90-day 
petition finding. This finding reflects and incorporates information we 
received during the public comment period and responds to significant 
issues. We also consulted with recognized fisher experts and Federal 
and State resource agencies. On the basis of this review, we find that 
the West Coast population of the fisher constitutes a valid DPS, which 
is both discrete and significant under our DPS policy, and that listing 
the fisher in its west coast range is warranted but precluded by 
pending proposals for other species with higher listing priorities.
    In making this finding, we recognize that there have been declines 
in the distribution and abundance of the fisher in its west coast 
range, primarily attributed to historical overtrapping and habitat 
alteration. Much of the fisher's historical habitat and range has been 
lost. There is substantial information indicating that the habitat of 
fishers continues to be threatened with further loss and fragmentation 
resulting in a negative impact on fisher distribution and abundance. 
Mortalities and injuries

[[Page 18792]]

from incidental captures of fishers may be frequent enough to prevent 
local recovery of populations, or prevent the re-occupation of suitable 
habitat. Removing important habitat elements such as cover could allow 
predation to become a significant threat. Other factors considered to 
be threats to the fisher include mortality from vehicle collisions, a 
decrease in the prey base, and increased human disturbance. Fisher 
populations are low or absent throughout most of their historical range 
in Washington, Oregon, and California. Because of small population 
sizes and isolation, fisher populations on the West Coast may be in 
danger of extirpation.
    Federal, State, and private land management activities may affect 
key elements of fisher habitat; reduction of any of these key habitat 
elements could pose a risk to the fisher. Current regulations provide 
insufficient certainty that conservation efforts will be implemented or 
that they will be effective in reducing the level of threat to the 
fisher. We, therefore, believe that existing regulatory mechanisms are 
not sufficient to protect the DPS as a whole from habitat pressures.
    We conclude that the overall magnitude of threats to the West Coast 
DPS of the fisher is high, and that the overall immediacy of these 
threats is non-imminent. Pursuant to our Listing Priority System (64 FR 
7114), a DPS of a species for which threats are high and non-imminent 
is assigned a Listing Priority Number of 6. The threats occur across 
the range of the DPS resulting in a negative impact on fisher 
distribution and abundance. The threats are non-imminent as the 
greatest long-term risks to the fisher in its west coast range are the 
subsequent ramifications of the isolation of few, small populations. 
While we conclude that listing the West Coast DPS of the fisher is 
warranted, an immediate proposal to list is precluded by other higher 
priority listing actions. During Fiscal Year 2004 we must spend nearly 
all of our Listing Program funding to comply with listing actions 
required by court orders and judicially approved settlement agreements, 
which are now our highest priority actions. To the extent that we have 
discretionary funds, we will give priority to using them to address 
emergency listings and listing actions for other species with a higher 
priority. We expect that our discretionary listing activity in Fiscal 
Year 2004 will focus on addressing our highest priority listing 
actions.
    There are currently efforts underway to implement a conservation 
strategy to reintroduce the fisher into its former range along the 
Pacific Coast. Additional populations of fishers will reduce the 
probability that a stochastic event would result in extirpation of 
these species. We will evaluate a completed conservation strategy in 
accordance with our Policy on Evaluating Conservation Efforts (68 FR 
15100, March 28 2003) to determine whether it sufficiently removes 
threats to the fisher so that it no longer meets the definition of 
threatened under the Act.
    We will add the West Coast DPS of the fisher to the list of 
candidate species upon publication of this notice of 12-month finding. 
We request that you submit any new information, whenever it becomes 
available, for this species concerning status and threats. This 
information will help us monitor and encourage the conservation of this 
species. Should an emergency situation develop with this or any of the 
candidate species, we will act to provide immediate protection, if 
warranted.
    We intend that any proposed listing action for the West Coast DPS 
of the fisher will be as accurate as possible. Therefore, we will 
continue to accept additional information and comments from all 
concerned governmental agencies, the scientific community, industry, or 
any other interested party concerning this finding.

References Cited

    A complete list of all references cited is available on request 
from the Sacramento Fish and Wildlife Office (see ADDRESSES section, 
above).

Author(s)

    The primary author of this document is the Sacramento Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

Authority

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

    Dated: April 2, 2004.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 04-7941 Filed 4-7-04; 8:45 am]
BILLING CODE 4310-55-P