[Federal Register Volume 69, Number 194 (Thursday, October 7, 2004)]
[Proposed Rules]
[Pages 60134-60138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22542]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT78


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the San Miguel Island Fox, Santa 
Rosa Island Fox, Santa Cruz Island Fox, and Santa Catalina Island Fox

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The San Miguel Island fox, Santa Rosa Island fox, Santa Cruz 
Island fox, and Santa Catalina Island fox were listed as endangered 
species under the Endangered Species Act of 1973, as amended (Act), on 
March 5, 2004. We do not find any habitat on the four islands occupied 
by the foxes that meets the definition of critical habitat under the 
Act. Because there is no habitat that meets the definition of critical 
habitat for the island fox subspecies, there is none to propose, and we 
are proposing that zero critical habitat be designated.
    We solicit data and comments from the public on all aspects of this 
proposed finding. Unless we receive information during the comment 
period that indicates there is habitat which meets the definition of 
critical habitat, we will not be preparing an economic analysis.

DATES: We will consider comments received by December 6, 2004.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office, 2493 Portola Road, Suite B, Ventura, CA 93003.
    2. You may hand-deliver written comments to our Ventura Office, at 
the address given above.
    3. You may send comments by electronic mail (e-mail) to: 
[email protected]. Please see the Public Comments Solicited 
section below for file format and other information about electronic 
filing. In the event that our Internet connection is not functional, 
please submit comments by the alternate methods mentioned above.
    4. You may fax your comments to 805/644-3958.
    The complete file for this finding is available for public 
inspection, by appointment, during normal business hours at the Ventura 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola 
Road, Suite B, Ventura, CA 93003.

FOR FURTHER INFORMATION CONTACT: For the San Miguel Island fox, Santa 
Rosa Island fox, and Santa Cruz Island fox, contact Diane Noda, Field 
Supervisor, Ventura Fish and Wildlife Office at the address given above 
(telephone 805/644-1766; facsimile 805/644-3958). For the Santa 
Catalina Island fox, contact Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 
(telephone 760/431-9440; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Preamble

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs). 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 445 species or 36 percent 
of the 1,244 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,244 listed species through conservation mechanisms such as 
listing, section 7 consultations, the Section 4 recovery planning 
process, the Section 9 protective prohibitions of unauthorized take, 
Section 6 funding to the States, and the Section 10 incidental take 
permit process. The Service believes that it is these measures that may 
make the difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which

[[Page 60135]]

those who fear adverse impacts from critical habitat designations 
challenge those designations. The cycle of litigation appears endless, 
is very expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    The Island fox is taxonomically divided into six subspecies that 
are each limited in range to a single island (Gilbert et al. 1990; 
Wayne et al. 1991; Collins 1991a, 1993; Goldstein et al. 1999). Each 
subspecies is reproductively isolated from the others by a minimum of 5 
kilometers (3 miles) of ocean waters. For further information about the 
subspecies' taxonomy, description, distribution, habitat, life history, 
and threats, please refer to the March 5, 2004, final listing rule (69 
FR 10335), in which we determined that four of the subspecies were 
endangered. Regarding the past, present, and future threats faced by 
these taxa in determining the listing status, the threats are primarily 
due to predation from golden eagles (on San Miguel, Santa Rosa, and 
Santa Cruz islands) or canine distemper virus (on Santa Catalina 
Island). Other threats include disease, natural events, non-native 
herbivores and on Santa Catalina Island, competition from feral cats, 
and road mortality, all of which could diminish or destroy the small 
extant populations. See Tables 1-4, in our final listing rule, for 
summaries of the status, and major threats, faced by the four 
subspecies as well as the conservation actions undertaken to protect 
each of the subspecies, and the effectiveness of such measures (69 FR 
10335, March 5, 2004).

Previous Federal Actions

    On December 10, 2001, we published a proposal to list four 
subspecies of island fox as endangered (66 FR 63654). Please refer to 
this proposed rule for information on Federal actions prior to December 
10, 2001. On April 22, 2003, the Center for Biological Diversity filed 
suit against the Service for failure to finalize the listing and for 
failure to publish a final determination regarding critical habitat 
(Center for Biological Diversity v. Williams, et al. No. CV-03-2729 AHM 
(C.D. Cal.)). In settlement of that lawsuit, we agreed to submit the 
final listing determination to the Federal Register on or by March 1, 
2004, and if prudent, submit a proposed rule to designate critical 
habitat to the Federal Register on or by October 1, 2004, and a final 
determination regarding critical habitat on or by November 1, 2005. The 
final rule listing the four subspecies of the island fox as endangered 
was published on March 5, 2004 (69 FR 10335).

Critical Habitat

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that we designate critical habitat, 
to the maximum extent prudent and determinable, at the time a species 
is listed as endangered or threatened. Designation is not prudent when 
one or both of the following situations exist: (1) The species is 
threatened by taking or other human activity, and identification of 
critical habitat can be expected to increase the degree of such threat 
to the species, or (2) such designation of critical habitat would not 
be beneficial to the species.
    Critical habitat is defined in section 3(5)(a) of the Act as: (i) 
The specific areas within the geographical area occupied by a species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    In the March 5, 2004, final listing rule, we determined that 
designation of critical habitat was prudent for the island foxes. As 
discussed more fully below, we now find there are no ``specific areas 
on which are found those physical or biological features (I) essential 
to the conservation of the species and (II) that may require special 
management considerations or protection.'' Further, there are no 
``specific areas outside the geographical area occupied by [the] 
species at the time it [was] listed that are essential for the 
conservation of the species.''
    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (PCEs)) 
that are essential to the conservation of the species, and that may 
require special management considerations and protection. These 
include, but are not limited to: space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The island fox, however, is a habitat generalist in all aspects of 
its life history. It does not require particular habitats for food, 
cover, breeding, and denning sites. The foxes are opportunistic 
omnivores, and eat a wide variety of plants (e.g., grass, fruits, and 
berries) and animals (e.g., insects, birds, mice) in whatever habitat 
they find them (69 FR 10336). As such the foxes use all the habitat 
available on each of the islands, including riparian, oak woodland, 
pine woodland, chaparral, coastal sage scrub, maritime scrub, and 
grasslands. In general, some of these habitats contain cover from 
aerial predation, and the nature of the cover is not habitat specific. 
Reproduction in the island foxes is also not limited to a specific 
habitat; the foxes may locate their simple den sites in any habitat 
where they find natural shelter (e.g., brush pile, rock crevice, hollow 
stump, or log) (Laughrin 1977). All habitat available on the islands on 
which the fox is found can be and is used by the fox. We are not aware 
of any existing or anticipated threats to the island habitats. 
Accordingly, there is currently no information to support a conclusion 
that any specific habitat within these areas are essential. Therefore, 
we do not believe that there are areas within the subspecies' habitat 
that contain features that are essential to the conservation of the 
species.
    Adverse effects to the fox that have occurred in these areas have 
been a result of activities, such as disease (canine distemper) and 
predation from golden eagles, which threaten individual island foxes 
rather than island fox habitat. While the habitat of

[[Page 60136]]

island foxes on all islands has been subject to substantial human-
induced changes over the past 150 years and these changes have resulted 
in some adverse effects to island foxes, they are unlikely to have 
directly caused the observed declines. This species' precarious 
situation derives mostly from predation on the foxes themselves and 
disease (canine distemper) and not from any particular action that 
caused habitat degradation. Furthermore, habitat does not appear to be 
a factor limiting the current population growth rate, nor is it likely 
to limit future population growth. Because there are no habitat threats 
to the island foxes, we conclude that no areas require special 
management considerations or protection. Conservation of the foxes 
depends on addressing non-habitat related threats.
    As discussed, declines have been caused largely by predation and 
disease, and these effects will be addressed through section 7 
consultation with Federal agencies under the jeopardy standard of the 
Act and through the section 9 prohibitions of the Act to the extent 
applicable. No benefit would accrue from a critical habitat designation 
with respect to the effects of predation and disease on individual 
foxes because the regulatory effects of critical habitat designations 
apply to adverse modification or destruction of habitat, not to effects 
that result in mortality of individual foxes. Although not relevant to 
our determination with regard to critical habitat, we note that the 
threats that do exist will also be addressed by the conservation 
actions of the National Park Service (NPS), the Nature Conservancy, and 
the Catalina Island Conservancy on the islands. Moreover, again because 
the threats faced by the species are not habitat-based, there would be 
no informational benefit to the designation.
    In accordance with the Act, a critical habitat designation can 
include areas outside the species' current range if we determine that 
these areas are essential to the conservation of the species. We have 
not found any areas outside the current range of the species to be 
essential for the conservation of the species. Our best data suggests 
that on all the islands with the exception of San Miguel, the island 
fox subspecies still occupy all island-based habitat,\1\ and thus, 
there is no area that is located outside the current range of the 
species on Santa Rosa, Santa Cruz, and Santa Catalina Islands. With 
respect to San Miguel Island, in 1999, the NPS captured 14 (4 males and 
10 females) of the 15 remaining foxes from San Miguel Island to protect 
the subspecies from further losses from predation by golden eagles and 
to initiate a captive propagation program. The remaining wild island 
fox, a lone female, evaded capture efforts until September 2003, when 
she was captured and brought into captivity. As of 2003, then, there 
were no island foxes remaining in the wild on San Miguel Island. Four 
years' captive breeding has increased the captive San Miguel Island fox 
population to 38 individuals. These individuals are in two captive 
breeding facilities on San Miguel Island, and the NPS and the recovery 
team will be releasing some of the foxes back into the wild on San 
Miguel Island in the next month or two as soon as they are no longer 
threatened by predation (C. Benz, pers. comm., 2004). Therefore, we are 
considering all the islands occupied by foxes. If reintroduction does 
not occur within the next month or two, however, and San Miguel Island 
is unoccupied for a time longer, we still would find no unoccupied 
areas essential to the conservation of the fox, as conservation of the 
foxes is dependent upon removal of predation.
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    \1\ Since the final listing rule was published, 12 captive foxes 
were released into the wild on Santa Rosa Island; 4 of the 12 were 
later returned to captivity, and 1 of the 12 was killed by a golden 
eagle (NPS 2004). Currently, there are at least 7 adult foxes in the 
wild on Santa Rosa Island and about 50 in captivity (NPS 2004), and 
thus we now consider Santa Rosa Island to be occupied habitat. 
However, as with San Miguel Island, the NPS and the recovery team 
are considering additional releases of foxes back into the wild on 
Santa Rosa Island in the next month or two (C. Benz, Service, pers. 
comm. 2004).
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    In summary, we do not find any habitat within the islands that 
meets the definition of critical habitat. Because there is no habitat 
that meets the definition of critical habitat for the island fox 
subspecies, there is none to propose, and we are proposing that zero 
critical habitat be designated.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. This rule 
does not designate critical habitat. Unless we receive information 
during the comment period that indicates there is habitat which meets 
the definition of critical habitat, we will not be preparing an 
economic analysis.

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

    Unless we receive information during the comment period that 
indicates there is habitat which meets the definition of critical 
habitat, we will not be preparing an economic analysis. If we prepare 
an economic analysis, our assessment of economic effect will be 
completed prior to final rulemaking based upon review of the draft 
economic analysis prepared pursuant to section 4(b)(2) of the ESA and 
E.O. 12866.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
proposed rule does not designate critical habitat for the four island 
fox subspecies. Therefore, no regulatory effects will derive from this 
action; it is not a significant energy action, and no Statement of 
Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Service makes the following findings: (a) This rule will 
not produce a Federal mandate, and (b) we do not believe that this rule 
will significantly or uniquely affect small governments. Because we are 
not proposing to designate any areas of critical habitat, this rule 
will result in no regulatory impact on any entities.

Takings

    We are not designating critical habitat in this proposed rule, and 
therefore, this proposed designation of critical habitat for the four 
island fox subspecies does not pose significant takings implications.

Federalism

    We are not designating critical habitat in this proposed rule, and 
therefore, this proposed designation of critical habitat for the four 
island fox subspecies does not have significant Federalism effects. A 
Federalism assessment is not required.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are not designating critical habitat in accordance 
with the provisions of the

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Endangered Species Act so this rule does not burden the judicial 
system.

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

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

National Environmental Policy Act

    We are not proposing to designate any areas as critical habitat. It 
is our position that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the National Environmental 
Policy Act in connection with designating critical habitat under the 
Endangered Species Act of 1973, as amended. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This assertion was upheld in the courts 
of the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
Ore. 1995), cert. denied 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's Manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We are not proposing to 
designate any areas as critical habitat. No tribal lands are essential 
for the conservation of the San Miguel Island fox, Santa Rosa Island 
fox, Santa Cruz Island fox, and Santa Catalina Island fox.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Ventura Fish and Wildlife Office (see 
ADDRESSES section).

Authors

    The primary author of this notice is the staff of the U.S. Fish and 
Wildlife Service.

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Amend Sec.  17.11(h) revising the entries for ``Fox, San Miguel 
Island, Santa Catalina Island, Santa Cruz Island, Santa Rosa Island'' 
under ``MAMMALS'' in the list of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                                                   Special
                                                         Historic range       endangered or        Status     When listed  Critical habitat     rules
           Common name              Scientific name                            threatened
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                                                                      * * * * * * *
             Mammals
 
                                                                      * * * * * * *
Fox, San Miguel Island..........  Urocyon littoralis   U.S.A. (CA).......  Entire............  E............          742  17.97(a)........           NA
                                   litoralis.
Fox, Santa Catalina Island......  Urocyon littoralis   U.S.A. (CA).......  Entire............  E............          742  17.97(a)........           NA
                                   catalinae.
Fox, Santa Cruz Island..........  Urocyon littoralis   U.S.A. (CA).......  Entire............  E............          742  17.97(a)........           NA
                                   santacruzae.
Fox, Santa Rosa Island..........  Urocyon littoralis   U.S.A. (CA).......  Entire............  E............          742  17.97(a)........           NA
                                   santarosae.
 
                                                                      * * * * * * *
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend part 17 by adding a new Sec.  17.97 to read as follows:


Sec.  17.97  Species for which critical habitat is prudent but not 
designated.

    This section includes animal and plant species for which we have 
determined critical habitat to be prudent, but for which we did not 
designate critical habitat under the Act for policy and statutory 
reasons. We identify these species, their primary constituent elements, 
and the specific habitat areas essential to their conservation to 
further public awareness and conservation efforts.
    (a) Animals. This paragraph (a) identifies the primary constituent 
elements and specific habitat areas essential to the conservation of 
animal species for which we determined critical habitat to be prudent 
but did not designate for policy and statutory reasons. We will list 
these species in the same order as they appear in Sec.  17.11(h).
    (1) Fox, San Miguel Island (Urocyon littoralis litoralis).
    (i) No primary constituent elements have been identified for the 
San Miguel Island fox.
    (ii) There are no specific habitat areas essential to the 
conservation of this species.
    (2) Fox, Santa Catalina Island (Urocyon littoralis catalinae).
    (i) No primary constituent elements have been identified for the 
Santa Catalina Island fox.
    (ii) There are no specific habitat areas essential to the 
conservation of this species.
    (3) Fox, Santa Cruz Island (Urocyon littoralis santacruzae).
    (i) No primary constituent elements have been identified for the 
Santa Cruz Island fox.

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    (ii) There are no specific habitat areas essential to the 
conservation of this species.
    (4) Fox, Santa Rosa Island (Urocyon littoralis santarosae).
    (i) No primary constituent elements have been identified for the 
Santa Rosa Island fox.
    (ii) There are no specific habitat areas essential to the 
conservation of this species.
    (b) [Reserved]

    Dated: October 1, 2004.
Julie MacDonald,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-22542 Filed 10-6-04; 8:45 am]
BILLING CODE 4310-55-P