[Federal Register Volume 71, Number 100 (Wednesday, May 24, 2006)]
[Proposed Rules]
[Pages 29886-29908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4695]


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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 California Spotted Owl (Strix occidentalis 
occidentalis) as Threatened or Endangered

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 on a petition to list the California spotted owl 
(Strix occidentalis occidentalis) under the Endangered Species Act of 
1973, as amended. After reviewing the best available scientific and 
commercial information, we find that the petitioned action is not 
warranted. However, we will continue to seek new information

[[Page 29887]]

on the biology of the species as well as potential threats. We ask the 
public to submit to us any new information that becomes available 
concerning the status of, or threats to, the species. This information 
will help us monitor the status of this species.

DATES: The finding announced in this document was made on May 15, 2006. 
You may submit new information concerning this species for our 
consideration at any time.

ADDRESSES: You may send data, information, comments, or questions 
concerning this finding to the Field Supervisor (Attn: CALIFORNIA 
SPOTTED OWL), 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: Arnold Roessler or Jan Knight at the 
above address (telephone: 916/414-6600; fax: 916/414-6712).

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 the petitioned 
action 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. Such 12-month findings are to be published promptly 
in the Federal Register. 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.
    On April 3, 2000, we received a petition to list the California 
spotted owl (spotted owl) as a threatened or endangered species 
submitted by the Center for Biological Diversity and the Sierra Nevada 
Forest Protection Campaign (Center for Biological Diversity 2000), on 
behalf of themselves and 14 other organizations. Along with listing, 
the petition also requested the concurrent designation of critical 
habitat, emergency listing, and emergency designation of critical 
habitat. On October 12, 2000, we published a 90-day finding on that 
petition in the Federal Register (65 FR 60605). In that notice, we 
found that the petition presented substantial scientific or commercial 
information to indicate that listing the California spotted owl may be 
warranted, and we initiated a status review of the taxon. On February 
14, 2003, we published a 12-month finding on the petition in the 
Federal Register (68 FR 7580). In that notice, we found that the 
petitioned action was not warranted because the overall magnitude of 
threats to the species did not rise to the level requiring protection 
under the Act.
    On May 11, 2004, the Center for Biological Diversity and five other 
groups filed a lawsuit in Federal District Court for the Northern 
District of California (Center for Biological Diversity, et al. v. 
Norton et al., No. C-04-1861) alleging that our 12-month finding 
violated the Act and the Administrative Procedure Act (5 U.S.C. 706). 
On September 1, 2004, we received an updated petition, dated September 
2004, to list the California spotted owl as a threatened or endangered 
species and to designate critical habitat concurrent with listing 
based, in part, on information that was not available to us at the time 
we made our original 12-month finding (Center for Biological Diversity 
2004). The updated petition was submitted by the Center for Biological 
Diversity and the Sierra Nevada Forest Protection Campaign, acting on 
behalf of themselves and six other organizations. The submission 
clearly identified itself as a petition, and included the requisite 
identification information of the petitioners, as required in 50 CFR 
424.14(a).
    In view of the new petition, on March 8, 2005, the District Court 
in Center for Biological Diversity v. Norton issued an Order to Show 
Cause why it should not stay the litigation pending the Service's 
action on the new petition. In response to that Order, on March 14, 
2005, we submitted a declaration to the Court stating that: (1) We 
could submit for publication in the Federal Register a 90-day finding 
on the new petition by June 13, 2005, and (2) if we found that the 
information presented in the petition was substantial, we could submit 
for publication in the Federal Register a 12-month finding by March 14, 
2006. At a hearing on March 17, 2005, the Court stayed the case for 90 
days, directed us to report to the Court and the parties concerning the 
status of our review of the petition by June 13, 2005, and continued 
the hearing on pending cross-motions for summary judgment to June 23, 
2005. On April 4, 2005, the Court concurred with the parties' requests 
to continue the hearing date until June 30, 2005, and to allow the 
Plaintiffs and Intervenor-Defendants (American Forest and Paper 
Association, California Forestry Association, and Sierra Pacific 
Industries) until June 23, 2005, to file any responses to our June 13, 
2005, filing. On June 13, 2005, we submitted our 90-day finding to the 
Federal Register, which published the finding on June 21, 2005 (70 FR 
35607). In that finding, we found that the petition presented 
substantial scientific or commercial information to indicate that 
listing the California spotted owl may be warranted, we initiated a 
status review of the taxon, and we solicited comments and information 
to be provided in connection with the status review by August 22, 2005. 
In light of the June 21, 2005, finding and pursuant to a joint 
stipulation of dismissal by the parties to the litigation, the Court 
dismissed the above case on July 25, 2005.
    On October 14, 2005, we published in the Federal Register a notice 
reopening the public comment period through October 28, 2005 (70 FR 
60051). On February 14, 2006, we filed with the Court our intention to 
deliver the 12-month finding to the Federal Register by May 15, 2006, 
to enable us to incorporate results from the most recent meta-analysis 
of California spotted owls that was delivered to us on February 21, 
2006.

The Petition

    The 2004 petition (Center for Biological Diversity 2004) states 
that historical and recent wildfires, historical logging, drought, 
diseases, insect pests, and other factors resulted in habitat loss and 
fragmentation, which negatively affected spotted owl numbers, 
distribution, and dispersal. The petition describes how fuels build-up 
and changes in forest structure have put some stands at increased risk 
of stand-replacing fire, and that increased risk is considered a threat 
to existing owl pairs across the range of the California spotted owl.
    The petition cites results from the meta-analysis of population 
dynamics of California spotted owls up through 2000 (Franklin et al. 
2004) as evidence that spotted owl populations are declining and that 
management of forests may be a cause of these declines. The petition

[[Page 29888]]

claims that we did not adequately address reported declines in our 2003 
12-month finding (68 FR 7580) due to our heavy reliance on lambda (the 
finite rate of population change), 95-percent confidence intervals, and 
uncertainty.
    The petition contends that the SNFPA (USFS 2004a) does not 
adequately protect large trees, high canopy closure, multiple-canopy 
layers, snags, and downed wood, that it does not provide limits on the 
proportion of areas that can be degraded through logging, and that it 
allows for treatment in more spotted owl Protected Activity Centers 
than does the 2001 Sierra Nevada Forest Plan (USFS 2001). The petition 
further states that logging under the SNFPA both within and outside of 
the Herger Feinstein Quincy Library Group Forest Recovery Act Pilot 
Project area threatens to further degrade and destroy California 
spotted owl habitat. The petition states that timber harvest on private 
lands threatens to further degrade and destroy spotted owl habitat, 
resulting in continued declines in numbers of spotted owls. The 
petition also states that the California State Forest Practices Code 
provides almost no specific protections for the spotted owl or its 
habitat.
    The petition states that development on private lands in the Sierra 
Nevada and southern California presents a significant threat to the 
California spotted owl, particularly in low elevation riparian hardwood 
habitats. The petitioners further expressed concern that development in 
southern California could prevent dispersal between spotted owl 
populations in southern California, as mountain ranges occupied by 
spotted owls probably act as habitat islands with limited dispersal 
between them.
    The petition states that recreation potentially affects spotted 
owls in several ways, including noise disturbance, construction of 
roads and trails, and expansion of ski resorts. The petition also 
states that grazing is likely to indirectly affect the owl by reducing 
or eliminating riparian vegetation, altering forest structure and fire 
regimes, and reducing prey density. The petition expresses concern that 
West Nile Virus presents a serious potential threat to California 
spotted owls, and recommends that its effects on spotted owls be 
monitored closely. The petition mentions concern that weather poses a 
threat to California spotted owls, and that threats from hybridization 
and site competition with the barred owl (Strix varia) have increased 
in recent years.
    In this finding, we re-analyzed issues raised in the 2000 petition 
(Center for Biological Diversity 2000) and included a new analysis of 
concerns presented for the first time in the 2004 petition (Center for 
Biological Diversity 2004). In our 90-day finding of June 21, 2005 (70 
FR 35607), we briefly analyzed the concerns as described in the 
petition. We stated that five changes that had taken place since our 
2003 finding constituted substantial information that may affect the 
status and distribution of the California spotted owl or change our 
understanding of possible declines in California spotted owl 
populations and thus justified further detailed analysis in a status 
review and 12-month finding. These changes were: (1) Revisions to the 
2001 SNFPA (USFS 2001) in the 2004 SNFPA (USFS 2004a); (2) revisions to 
the California State Forest Practices Code; (3) possible changes to the 
draft meta-analysis of the population dynamics of the California 
spotted owl in the final, published meta-analysis (Franklin et al. 
2004); (4) impacts of recent fires and anticipated future fires in 
spotted owl habitat; and (5) further range expansion of the barred owl. 
In this finding, we analyze these five changes, other concerns 
expressed in the petition, and other pertinent information relative to 
whether the California spotted owl should be listed. Specific concerns 
included in the petition are noted and addressed under each of the 
factors presented below.

Taxonomy and Description

    A summary of taxonomy and description of the California spotted owl 
can be found in the 2003 12-month finding (68 FR 7580) and is hereby 
incorporated by reference (68 FR 7580).

Genetics

    A discussion of population genetics of the California spotted owl 
can be found in the 2003 12-month finding (68 FR 7580) and is hereby 
incorporated by reference (68 FR 7580). Subsequent studies analyzing 
mtDNA sequences (Haig et al. 2004; Chi et al. 2005; Barrowclough et al. 
2005) and microsatellites (Henke 2005) confirmed the validity of the 
current subspecies designations for northern (Sq. o. caurina) and 
California spotted owls.

Life History

    Spotted owls in conifer forests of the Sierra Nevada, especially 
above mid-elevation mixed-conifer forests located at about 4,000 to 
5,000 feet (ft)) (1,200 to 1,525 meters (m)), feed primarily on 
northern flying squirrels (Glaucomys sabrinus) (Verner et al. 1992b). 
Spotted owls in the mid-to lower elevations of the mixed-conifer zone 
and the upper elevations of the ponderosa pine (Pinus ponderosa)/
hardwood belt of the Sierras prey primarily on both flying squirrels 
and dusky-footed woodrats (Neotoma fuscipes) (Verner et al. 1992b), 
while spotted owls in southern California feed mostly on woodrats 
(Thrailkill and Bias 1989). Flying squirrels typically use older mature 
forests because they provide suitable nest sites, including snags, and 
abundant sources of food including arboreal lichens and truffles, which 
are associated with an abundance of soil organic matter and decaying 
logs (Verner et al. 1992b). In second-growth forests in Oregon, 
northern flying squirrels were found in younger forests if large snags 
and downed logs remained from earlier stands (Carey and Peeler 1995). 
Woodrats and deer mice (Peromyscus maniculatus) accounted for 29 and 16 
percent, respectively, of the total prey items in one study in an 
industrially managed forest in the Sierra Nevada (Clark 2002). 
According to Verner et al. (1992b:69), ``spotted owls in the Sierran 
foothills and throughout southern California, even at high elevations, 
obtain 79 to 97 percent of their energy from woodrats.'' Woodrats are 
most abundant in younger forest and in shrubby habitats and are 
uncommon in pure conifer forests or forests with little shrub 
understory (Williams et al. 1992; Ward et al. 1998).
    A more-complete discussion of California spotted owl life history 
characteristics including dispersal, reproduction, interactions with 
other species, and food habits can be found in the 2003 12-month 
finding (68 FR 7580) and is hereby incorporated by reference.

Distribution and Range

    A discussion of range and distribution can be found in the 2003 12-
month finding for the California spotted owl (68 FR 7580) and is hereby 
incorporated by reference. Since publication of the 2003 finding, 
Gutierrez and Barrowclough (2005:185) noted that the range descriptions 
of the northern and California spotted owl subspecies in American 
Ornithologists' Union (1957) did not include the area between Mt. 
Shasta and Mt. Lassen because spotted owls were not known to occur in 
that area at that time, and that ``the geographic scope of the listing 
was correct'' to use the Pit River as the boundary between the two 
subspecies. Also since the publication of the 2003 finding, we gathered 
information concerning records of spotted owls in Baja California, 
Mexico. In 1887, A.W. Anthony reported seeing a spotted owl in the 
Sierra San Pedro Martir of northern Baja California, Mexico (Bryant 
1889), and, a few years later, may have had a second sighting in the 
same area (Anthony 1893). Wilbur (1987) stated

[[Page 29889]]

that the only other records of spotted owls in Baja California were 
from the La Grulla area, also in northern Baja California, in 1925 and 
1972.

Numbers and Connectivity

    There are no reliable total population estimates for the California 
spotted owl. The number of California spotted owl territories has been 
used as an index to illustrate the range of the species and 
jurisdictions in which it occurs. This number is actually a cumulative 
total of all territories known to be historically or currently occupied 
by at least one spotted owl. This total increases over time as spotted 
owls move to new territories and as researchers survey new areas, even 
though many territories with sufficient suitable habitat may not be 
occupied in years following their initial discovery and some 
territories may no longer have sufficient suitable habitat to support 
spotted owls due to logging or fires. Thus, the number of territories 
should not be viewed as a population estimate for the taxon.
    A total of 2,306 California spotted owl territories has been 
documented, 1,865 (81 percent) of which are in the Sierras (Service 
2002). National forests in the Sierras contain a total of 1,399 
territories: Modoc (3), Lassen (138), Plumas (254), Tahoe (173), Lake 
Tahoe Basin Management Unit (14), El Dorado (202), Stanislaus (234), 
Humboldt-Toiyabe (2), Inyo (5), Sierra (226), and Sequoia (148). 
National parks in the Sierras have 129 territories: Lassen Volcanic 
(6), Sequoia/Kings Canyon (69), and Yosemite (54). Fourteen territories 
in the Sierras are on Bureau of Land Management (BLM) land in the 
Sierra Nevada, four are on California State Lands Commission Land, 
three are in State Parks, one is on California Department of Forestry 
(CDF) land, one is on Native American land, and 314 are on private 
lands (Service 2002).
    Estimates for total number of spotted owl territories in southern 
California include 440 (Service 2002), 547 (Verner et al. 1994a), and 
578 (Beck and Gould 1992). In southern California, spotted owls occupy 
``islands'' of high-elevation forests separated by lowlands of 
chaparral, desert scrub, and, increasingly, human development (Noon and 
McKelvey 1992, LaHaye et al. 1994). The islands comprise 15-20 
populations with 3-270 individuals per population. Islands are 
separated from each other by 10-72 kilometers (km) (6 to 45 miles (mi)) 
(Verner et al. 1992a, Guti[eacute]rrez 1994, LaHaye et al. 1994). These 
populations appear to be isolated from one another; no inter-mountain 
movements were documented for any of the 478 juvenile California 
spotted owls banded in the San Bernardino Mountains (LaHaye et al. 
2001). Using our most-recent estimate of 440 total territories for 
southern California, the known territories on national forests are as 
follows: 109 on the Los Padres, 64 on the Angeles, 138 on the San 
Bernardino, and 18 on the Cleveland (Service 2002). There are two 
territories known on BLM land, eight on State park lands, six on Native 
American lands, and 95 on private lands. In addition, there is one 
known territory in Mexico (Service 2002). These 441 territories in 
southern California and Mexico comprise 19 percent of the total 2,306 
California spotted owl territories.
    Since publication of the 2003 12-month finding (68 FR 7580), we 
obtained additional information regarding spotted owl numbers on 
private lands in the Sierras. Six timber companies (W.M. Beaty and 
Associates, Inc.; Collins Pine Company; Fruit Growers Supply Co.; 
Roseburg Resources Co.; Sierra Pacific Industries (SPI); Soper-Wheeler 
Co.) own or manage the vast majority of California spotted owl habitat 
in private lands in the Sierra Nevada. SPI lands include more than 200 
California spotted owl territories (Steve Self, SPI, in litt. 2005). 
There are 36 records of nest sites within 4.8 km (3 mi) of W.M. Beaty-
managed lands, and three nest sites either on or immediately adjacent 
to W.M. Beaty-managed lands (Bob Carey, W.M. Beaty, in litt. 2005). 
There are no known spotted owl territory-centers or nests on lands 
owned by Fruit Growers (John Eaker, Fruit Growers, in litt. 2006). 
(spotted owl territory-centers are typically the locations of nest 
trees, but if that information is unavailable, they can be the 
locations where fledgling owls were found, locations where a pair was 
detected, or locations where a single owl was detected) There are 40 
spotted owl territory-centers situated either on or within 1.6 km (1 
mi) of the land owned by Soper-Wheeler (Paul Violett, Soper-Wheeler, in 
litt. 2006). There are no known California spotted owl territory-
centers or nests on lands owned by Collins Pine, and there are fewer 
than 10 territory-centers or nests immediately adjacent to their lands 
on national forest land (Jay Francis, Collins Pine, in litt. 2006). 
There are no known California spotted owl territory-centers or nests on 
Roseburg Resources lands, but there are four territory-centers or nests 
within 0.8 km (0.5 mi) of their boundaries (Rich Klug, Roseburg, in 
litt. 2006).

Habitat Use

    Suitable habitat for spotted owls includes nesting, roosting, and 
foraging habitats. Nesting and roosting habitat of spotted owls 
typically includes many large trees (e.g., Call 1990; Zabel et al. 
1992a, b; Moen and Guti[eacute]rrez 1997; North et al. 2000; USFS 
2001a). For example, mean ( standard deviation) diameter at 
breast height (dbh) of the nest trees in Guti[eacute]rrez et al. (1992) 
were: 115.6  37.3 cm (45.5  14.7 in) (sample 
size = 81) in northern Sierran conifer forests; 118.6  49.8 
cm (46.7  19.6 in.) (sample size = 41) in southern Sierran 
conifer forests; 94.0  35.3 cm (37.0  13.9 in.) 
(sample size = 139) in southern California conifer forests; and 74.9 
 42.2 cm (29.5  16.6 in.) (sample size = 13) in 
riparian/hardwood forests. They found that the ``dbh of nest trees in 
our current sample was significantly greater than that of conifers in 
the Sierra Nevada even in 1900'' (Guti[eacute]rrez et al. 1992:92; 
emphasis in text). Mean diameters of nest trees in Blakesley (2003) 
were 117  0.29 cm (46.1  0.1 in.) (sample size 
= 132). Basal areas of nesting and roosting sites have been shown to be 
greater than those in random sites in the Sierras and in southern 
California (Bias 1989 in Guti[eacute]rrez et al. 1992; Laymon 1988 in 
Guti[eacute]rrez et al. 1992; LaHaye et al. 1997). Spotted owls nest in 
a variety of species of live trees and snags in pre-existing structures 
including cavities, broken top trees, and platforms such as mistletoe 
brooms, debris platforms and old raptor or squirrel nests; therefore 
nesting habitat includes more large live, decadent, and dead trees than 
do forests not used for nesting (Laymon 1988; Call 1990; Bias and 
Guti[eacute]rrez 1992; Guti[eacute]rrez et al. 1992, 1995; LaHaye et 
al. 1997).
    High amounts of canopy closure and structural diversity (multi-
layered canopy) are typical of nesting and roosting stands used by 
spotted owls in the Sierras and in southern California (e.g., Laymon 
1988; Call et al. 1992; LaHaye et al. 1992, 1997; Zabel et al. 1992a; 
Moen and Guti[eacute]rrez 1997; North et al. 2000; Seamans 2005). 
Nesting and roosting stands often have mean canopy closures of greater 
than 75 percent (Bias and Guti[eacute]rrez 1992; Guti[eacute]rrez et 
al. 1992). Verner et al. (1992b:60; emphasis in text) summarized: 
``Habitats used for nesting typically have greater than 70 percent 
total canopy cover (all canopy above 7 feet [2.1 m]), except at very 
high elevations where canopy cover as low as 30-40 percent may occur 
(as in some red fir stands of the Sierra Nevada). Nest stands typically 
exhibit a mixture of tree sizes and usually at least two canopy layers, 
with some very large, old trees usually present. * * * Stands used for 
roosting are similar to those used for nesting, with relatively high 
canopy

[[Page 29890]]

cover, dominated by older trees with large diameters, and with at least 
two canopy layers * * *''
    Spotted owls forage in forests with ample open flying space within 
and beneath the canopy, so extremely dense stands typically are not 
used for foraging (Verner et al. 1992b; Gutierrez et al. 1995). Verner 
et al. (1992b:60) summarized: ``Foraging habitats include suitable 
nesting and roosting sites as well as more open stands, regularly down 
to 40-50 percent canopy cover, that are generally similar in structure 
and composition to nesting and roosting habitat.'' Foraging habitat in 
conifer forests is enhanced by the presence of hardwoods, and foraging 
habitat at lower elevations in the Sierras and in southern California 
tend to have less downed woody debris and be less multi-layered (Verner 
et al. 1992b).
    In the study area with largest sample sizes in Zabel et al. 
(1992a), 24 spotted owls during the breeding season spent 69 percent of 
their time in forests with 40-69 percent canopy closure and 22 percent 
of their time in forests with greater than 70 percent canopy closure. 
During the non-breeding season, 18 spotted owls spent 64 percent of 
their time in suitable-habitat forests with 40-69 percent canopy 
closure and 22 percent of their time in forests with greater than 70 
percent canopy closure (Zabel et al. 1992a). California spotted owls 
avoid open areas (0-30 percent canopy cover; Gutierrez et al. 1992) and 
recently logged forests (Call 1990; Zabel et al. 1992b; Gutierrez and 
Pritchard 1990). As previously mentioned, suitable habitat includes 
nesting, roosting, and foraging habitat. In light of the typical canopy 
cover in these habitats (>70 percent for nesting/roosting and >40 
percent for foraging), 40 percent canopy cover is a minimum threshold 
for suitable habitat. Other studies also support this 40-percent 
canopy-cover threshold for suitable habitat (e.g., Call et al. 1992; 
Verner et al. 1992b; Zabel et al. 1992; Moen and Gutierrez 1997).
    The Forest Service defines spotted owl habitat by using California 
Wildlife Habitat Relationship (CWHR) classes. In the CWHR system, tree-
dominated habitats are classified relative to six tree size classes and 
four canopy-closure classes. Size class 1 (seedling tree) areas are 
comprised of trees less than 2.5 cm (1 in.) dbh, size class 2 (sapling 
tree) areas are of trees 2.5-15 cm (1-6 in.) dbh, size class 3 (pole 
tree) stands are of trees 15-28 cm (6-11 in.) dbh, size class 4 (small 
tree) stands are of trees 28-61 cm (11-24 in.) dbh, sizes class 5 
(medium/large tree) stands are of trees greater than 61 cm (24 in.) 
dbh, and size class 6 (multi-layered tree) stands have class 5 trees 
over a distinct layer of class 4 or 3 trees and have more than 60 
percent canopy closure (Mayer and Laudenslayer 1988). Canopy-closure 
classes are: S (sparse; 10-24 percent closure), P (open; 25-39 percent 
closure), M (moderate; 40-59 percent closure), and D (dense; 60-100 
percent closure) (Mayer and Laudenslayer 1988). The Forest Service 
considers suitable California spotted owl habitat as forest stands 
represented by CWHR classes 4M, 4D, 5M, 5D, and 6 (Mayer and 
Laudenslayer 1988) in mixed conifer, red fir, ponderosa pine/hardwood, 
foothill riparian/hardwood, and east-side pine forests, and considers 
nesting habitat as forest stands represented by CWHR classes 5M (with 
at least 50 percent canopy closure), 5D, and 6 (USFS 2004a). The 
Service agrees with this classification depending on the structural 
condition of 4M and 4D stands. For a complete description of habitat 
use and home range of California spotted owls, see our 2003 12-month 
finding (70 FR 35607) and Service (2006), both of which are hereby 
incorporated by reference. We supplement information in that finding 
with the following discussion of habitat use by spotted owls.
    Habitat modeling of northern spotted owls in California (Franklin 
et al. 2000) and Oregon (Olson et al. 2004) showed that survival was 
maximized when northern spotted owl territories included large blocks 
of mid- and late-seral forests with some edge, but that fecundity was 
maximized with small blocks of northern spotted owl habitat and large 
amounts of edge between spotted owl habitat and other habitats. This 
difference was due, presumably, to the presence of woodrat prey in 
brushy clearcuts and forest edges (Franklin et al. 2000; Olson et al. 
2004). Conversely, population analysis of California spotted owls in 
the central Sierra Nevada with habitat covariates at the territory 
scale indicated there was no relationship between fecundity and habitat 
heterogeneity (Seamans 2005). However, survival rate and territory 
occupancy in that study were positively related to the amount of mid- 
and late-seral forests (Seamans 2005). Further, it was estimated that 
reproductive output was strongly influenced by weather, and it was 
hypothesized that reproductive output by California spotted owls at an 
individual territory was conditional on the territory being occupied 
during years when weather conditions were conducive to successful 
reproduction (Seamans 2005). Reproduction of spotted owls in the 
southern Sierra Nevada increased with canopy closure because more pairs 
successfully nested, not due to the production of more young per pair 
(Lee and Irwin 2005; Lee in litt. 2005). This increase in canopy 
closure appeared to be more of a minimum threshold requirement than a 
trend, with only marginal increases in spotted owl reproduction as 
canopy closure increased past the minimum. The minimum appeared to 
require that at least 44 percent of the 430-ha (1,063-ac) immediately 
surrounding the territory-center was forest with greater than 40 
percent canopy cover. Once this minimum was met, the relative amount of 
forests with intermediate (40-70 percent) and dense (greater than 70 
percent) canopy cover had little measurable effect on reproduction of 
spotted owls. These findings were conditional on having a suitable nest 
tree in the stand and are, therefore, not applicable to fire-suppressed 
stands with heavy ladder fuels in which such trees would be lost in a 
fire (Lee and Irwin 2005; Lee in litt. 2005).
    Additional information concerning habitat use and home range of 
California spotted owls can be found in our 2005 90-day finding (70 FR 
35607) which is incorporated by reference.

Habitat Condition

Changes to Habitat
    Our 2003 12-month finding (70 FR 35607) included a lengthy 
discussion of historic changes to California spotted owl habitat which 
is hereby incorporated by reference. Below, we supplement that 
discussion with additional information related to wildfires and timber 
harvest.
    The petition states that historic and recent wildfires, as well as 
more than 100 years of logging in the Sierras, resulted in habitat loss 
and fragmentation, which negatively affected spotted owl numbers, 
distribution, and dispersal (Center for Biological Diversity 2004). 
Suppression of wildland fires, established in California as State and 
Federal policy by the early 20th century, virtually eliminated forest 
fires. Up to the 1990s, it was estimated that only 269 ha (664 ac) 
burned annually in the 237,146-ha (586,000-ac) Eldorado National 
Forest, whereas approximately 11,736 ha (29,000 ac) burned annually 
before European arrival (Weatherspoon et al. 1992). Due to the lack of 
frequent fires, many forested areas have grown dense layers of 
understory trees and have accumulated large amounts of woody debris on 
the forest floor, thereby increasing the chances of high-intensity, 
stand-replacing crown fires in the

[[Page 29891]]

Sierras and in the mountains of southern California (Kilgore and Taylor 
1979; McKelvey and Weatherspoon 1992; Weatherspoon et al. 1992; 
Stephenson and Calcarone 1999). The species composition of these 
forests has shifted from fire-hardy species to more shade-tolerant, 
fire-sensitive species such as white fir and incense-cedar (Verner et 
al. 1992; Weatherspoon et al. 1992). Additionally, in areas throughout 
the range of the California spotted owl, trees that are dead or dying 
due to disease add to the already dense accumulations of woody debris. 
One of the challenges in assessing the effects of fire management in 
the habitat of California spotted owls is the need to weigh the long-
term benefits of reducing the risk of catastrophic fires against any 
potential short-term effects on the quality or quantity of spotted owl 
habitat. In southern California, fire history records since 1910 
indicate that the average patch-size of large fires has varied little 
over the years, but the occurrence of small fires has increased every 
year (Keeley et al. 1999 in USFS 2005a). The total acres burned in the 
four national forests of southern California have increased during each 
of the last three decades (USFS 2005a).
    Selective harvest of merchantable trees in the Sierras--often old-
growth trees--was the norm during the late 1800s through the 1970s, 
resulting in the loss of much suitable habitat and the production of 
forests with younger average tree ages. From the 1970s onward, clearcut 
harvests became increasingly more common, which resulted in patchworks 
of spatially heterogeneous forests (McKelvey and Johnston 1992). ``The 
mixed-conifer zone of the Sierra Nevada, therefore, has few or no 
stands remaining that can be described as natural or pristine'' 
(McKelvey and Johnston 1992:241). These activities ``undoubtedly 
impacted spotted owl habitat, though we cannot determine the extent of 
that impact. In general, the proportion of the area supporting conifer 
forests appears to have been reasonably static over the last 90 years'' 
(McKelvey and Johnston 1992:246). From the late 1980s onward, cutting 
was increasingly based on salvaging timber damaged or killed by fires 
or disease (salvage harvests) (McKelvey and Johnston 1992). Annual 
total volume of timber cut in the Sierras decreased from approximately 
1.6 to 1.9 billion board feet during the late 1940s to early 1950s to 
approximately 1.3 to 1.5 billion board feet from the mid 1950s to the 
late 1970s (McKelvey and Johnston 1992:Fig. 11U). Levels of timber 
harvest on national forest lands declined sharply after implementation 
of the California Spotted Owl Sierran Province Interim Guidelines in 
1993 (USFS 2001). From 1993 through 2004, annual harvest in national 
forests dropped over 80 percent from 450 to 86 million board feet 
(mmbf); similarly, annual timber harvest from 1993 to 2004 on private 
lands in the Sierras declined 37 percent from about 1 billion board 
feet to 632 mmbf (California Board of Equalization 2006). The average 
annual harvest from 1993 to 2004 was 188.5 mmbf (California Board of 
Equalization 2006). Currently, all cutting of timber in the national 
forests in the Sierra Nevada is conducted as part of the implementation 
of the Herger Feinstein Quincy Library Group Forest Recovery Act Pilot 
Project (Pilot Project) and fire-fuel reductions via the SNFPA (USFS 
2004a); the amounts and placements of these harvests, and how they are 
anticipated to affect spotted owls, are presented in other sections 
below.
    The petition states that historical logging, drought, diseases, 
insects, and other factors have contributed to the loss of habitat for 
the isolated populations of spotted owls in southern California (Center 
for Biological Diversity 2004). Timber harvest in southern California 
was never as extensive as that in the Sierra Nevada. Harvest volume in 
Los Angeles and San Bernardino Counties was about 10 to 20 times higher 
in the 1960s than in the early 1980s, and the decline has continued 
since the 1980s (McKelvey and Johnston 1992). Timber harvest in the 
four national forests of southern California only occurred during 2 
years from 1993 to 2004. In 2001, harvest volume was 1 mmbf, and in 
2003, harvest volume was 390,000 board feet (California Board of 
Equalization 2006). Harvests in national forests of southern California 
in recent years have primarily been salvage and hazard trees along 
roads and near administrative sites (Mike Gertsch, USFS, in litt. 
2002). In 2005, sales of saw timber in the national forests of southern 
California increased to approximately 10 mmbf due to salvage-harvesting 
of trees that had died from drought, insects, and fires (Loe in litt. 
2006). Similarly, private-land harvests in southern California from 
1993 to 2002 averaged only 130,000 bf annually, but increased to 7 mmbf 
in 2003 and 1.4 mmbf in 2004 (California Board of Equalization 2006) 
due to an increase in salvage-harvesting. Tree mortality and salvage 
harvesting likely had some adverse effects on spotted owls in southern 
California. The extent of this effect is unknown, but the quantity 
harvested is a small fraction of that removed decades earlier (27.4 
mmbf was cut in 1963 in southern California alone; McKelvey and 
Johnston 1992).
    Forest types important to spotted owls in southern California 
include lower montane forests and bigcone-Douglas fir stands, which are 
patchy in nature and often located within expanses of chaparral. The 
Forest Service indicates that stand-replacing fires in southern 
California forests are still relatively uncommon; the few fires that 
have occurred have either been wind-driven fires in steep terrain or 
have spread into forests from lower elevations, most often from 
chaparral. However, in the San Bernardino Mountains, stand-replacing 
fires resulted in a net loss of 18 percent of the bigcone-Douglas fir 
stands between 1938 and 1978. Furthermore, recent history in other 
areas suggests that such fires will become more common (USFS 2005a).
    Large-scale fires have occurred in spotted owl habitat in recent 
years in southern California. For example, in the Los Padres National 
Forest, wildfires burned to some extent 42,986 ha (106,220 ac) or 18 
percent of California spotted owl habitat since 1989. In the Monterey 
Ranger District, where most of the California spotted owl habitat in 
Los Padres National Forest is located, 34 percent of 61,625 ha (152,280 
ac) of California spotted owl habitat burned to some extent since 1989. 
The intensities and effects of these fires on spotted owl habitat are 
unknown, but many of these areas probably burned only lightly (Kevin 
Cooper, USFS, in litt. 2005). In San Bernardino National Forest, five 
spotted owl territories in the San Diego Ranges were completely burned 
in 2003, and nine territories in the San Gabriel Mountains were burned 
so heavily in 2002 and 2003 that it is doubtful that they can support 
spotted owls at this time (USFS 2004b, Steve Loe, USFS, in litt. 2005). 
In Cuyamaca State Park, which is located in the Laguna Mountains 
adjacent to the Descanso Ranger District of Cleveland National Forest, 
the 2003 Cedar Fire completely burned approximately six spotted owl 
territories (Kirsten Winter, USFS, in litt. 2005). These 20 territories 
that were completely burned during recent years comprise 4.5 percent of 
the 440 total territories known for southern California. These fires 
had a negative impact on spotted owls, but we anticipate that fuels-
reduction activities in southern California will decrease the frequency 
of fires in the future.
Present Habitat in the Sierra Nevada
    Approximately 2,024,000 ha (5 million ac) of suitable habitat for

[[Page 29892]]

California spotted owls (defined as CWHR classes 4M, 4D, 5M, 5D, 6) are 
located within national forests in the Sierra Nevada, which is about 43 
percent of the area managed under the SNFPA (Tom Efird, USFS, in litt. 
2006). Additionally, Sequoia and Kings Canyon national parks, Yosemite 
National Park, and Lassen Volcanic National Park collectively include 
approximately 186,676 ha (461,286 ac) of suitable habitat for spotted 
owls (Beck and Gould 1992).
    National forests in the Sierra Nevada include approximately 560,000 
ha (1.4 million ac) of private land within their administrative 
boundaries. Private land inholdings are much greater in extent in the 
northern national forests (especially the Lassen, Plumas, and Tahoe) 
than in the southern Sierra Nevada forests. Much of the private land 
within the boundary of the Lassen and Plumas national forests is in 
contiguous blocks, leaving national forest lands also fairly 
contiguous. Most private land on the Tahoe National Forest is in 
checkerboard ownership, and the Eldorado National Forest has a 
combination of checkerboard ownership and large contiguous blocks of 
inholdings.
    SPI is the largest private landowner in the range of the California 
spotted owl. SPI characterizes its timberland based upon an intensive 
set of measured inventory plots (1 plot every 1.6 ha (4 ac)) and does 
not categorize its inventory directly in terms of CWHR types. SPI owns 
433,000 ha (1,070,000 ac) of land within the range of the California 
spotted owl, of which 370,000 ha (913,000 ac) are classified by SPI to 
be nesting, roosting, or foraging habitat (CWHR 3D, 4M, 4D, 5M, 5D, and 
6), and the remainder is classified as prey-producing, non-forest, or 
plantation (Ed Murphy, SPI, in litt. 2006). (The SPI suitable-habitat 
class includes the smaller tree-size class CWHR class 3D, unlike the 
USFS and the Service.) Data provided by SPI indicate that many areas 
considered suitable habitat are of high quality. Of the nesting, 
roosting, or foraging habitat, 108,000 ha (267,000 ac) contain ``nest-
site characteristics'' (with approximately 50 trees at least 56 cm dbh 
per ha (20 trees at least 22 in. dbh per ac) and a canopy closure at 
least 60 percent), and 260,000 ha (642,000 ac) are considered nesting/
roosting habitat (CWHR 4D, 5M, 5D, and 6) (Murphy in litt. 2006). SPI's 
``nest-site characteristics'' type is derived from measurements at 38 
reproductive northern spotted owl (sample size = 22) and California 
spotted owl (sample size = 16) nest sites. During the next 100 years, 
SPI estimates that, as their forests mature, habitat with nest-site 
characteristics will more than double from 25 to 53 percent of all 
California spotted owl habitat on SPI land. Other habitat types will 
also change proportionally through time: From 29 to 15 percent for 
nesting/roosting habitat (excluding nest-site habitat); from 29 to 13 
percent for foraging habitat; and from 12 to 16 percent for prey-
producing habitat (SPI 1999a, b; Murphy in litt. 2006).
    W.M. Beaty manages approximately 69,565 ha (171,900 ac) within the 
range of the California spotted owl. Of this total, 6,235 ha (15,408 
ac) are considered suitable habitat for California spotted owls using 
the criteria used in CDF (2005) (quadratic mean diameter (QMD) at least 
27.9 cm (11 in) and overstory canopy closure at least 40 percent) and 
1,384 ha (3,420 ac) are considered suitable habitat using more-
conservative criteria for northern spotted owls developed by W.M. Beaty 
and the Service (QMD at least 30.5 cm (12 in) and overstory canopy 
closure at least 50 percent) (Carey in litt. 2005). Fruit Growers owns 
approximately 44,515 ha (110,000 ac) acres of forest in the range of 
the California spotted owl (Eaker in litt. 2006). Soper-Wheeler owns 
approximately 25,900 ha (64,000 ac) of land within the range of the 
California spotted owl, of which approximately 15 percent is in what 
they define as nesting/roosting habitat (CWHR 4M, 4D, 5M, 5D, 6), 65 
percent is what they define as foraging habitat (CWHR 3S, 3P, 3M, 3D, 
4S, 4P, 5S, 5P) and 20 percent is non-habitat (CWHR 2S, 2P, 2M, 2D) 
(Ryan McKillop, Soper-Wheeler, in litt. 2006). Within the western 
Sierras, approximately 93 percent of the 16,997 ha (42,000 ac) owned by 
Soper-Wheeler is timbered (Violett in litt. 2006). Collins Pine owns 
approximately 38,040 ha (94,000 ac) in the range of the California 
spotted owl, approximately 95 percent of which is timbered (Francis in 
litt. 2006). Roseburg Resources has 50,000 to 70,000 timbered acres in 
the range of the California spotted owl, but they have not classified 
their lands relative to spotted owl habitat (Klug in litt. 2006).
Present Habitat in Southern California
    There are approximately 473,473 ha (1,170,000 ac) of general 
habitat types where spotted owls were known to reproduce within the 
range of spotted owl in southern California and the central Coast 
Ranges (Stephenson and Calcarone 1999). However, the total amount of 
suitable habitat in southern California is likely lower than that 
amount because habitat types are a broad generalization of what 
California spotted owls actually require for habitat to be suitable 
(for example, a minimum canopy cover is a requisite for suitable 
habitat, but is not captured in characterization of habitat types). A 
discussion of spotted owl habitat in southern California can be found 
in the 2003 12-month finding for the California spotted owl (68 FR 
7580) and is hereby incorporated by reference.

Population Trends

    The petition cites results from the meta-analysis of population 
dynamics of California spotted owls up through 2000 (Franklin et al. 
2004) as evidence that spotted owl populations are declining and that 
management of forests may be a cause of these declines (Center for 
Biological Diversity 2004). This meta-analysis analyzed demographic 
data of spotted owls on the Lassen (1990 to 2000), Eldorado (1986 to 
2000), Sierra (1990 to 2000), and San Bernardino (1987 to 1998) 
national forests and in Sequoia and Kings Canyon national parks (1990 
to 2000). The petition claims that we did not adequately address 
reported declines in our 2003 12-month finding (68 FR 7580) due to our 
heavy reliance on the finite rate of population change (lambda), 95-
percent confidence intervals, and scientific uncertainty (Center for 
Biological Diversity 2004). Our analysis of more-recent data up through 
2005 (Blakesley et al. 2006) indicates more-positive trends for spotted 
owls in the Sierras and is discussed at length below.
    Spotted owls in the Sierra Nevada may have undergone at least three 
periods of decline due to: Elimination of prey species by intensive 
livestock grazing and burning in the 1800s; logging beginning in the 
late 1800s, which removed basic structural elements of spotted owl 
habitat; and logging of stands in recent decades that regenerated 
following initial entry (Gutierrez 1994). However, causal mechanisms of 
negative effects to spotted owls ascribed to the high levels of timber 
harvest circa 1990 have been substantially reduced as timber harvest 
levels dropped and increased protection measures were instituted in the 
mid- and late-1990s.
    A discussion of studies concerning population trends of California 
spotted owls can be found in the 2003 12-month finding for the 
California spotted owl, and that information is incorporated by 
reference (68 FR 7580). Early population studies used an analysis 
called a ``projection matrix'' to estimate population trend, and many 
of these early studies showed declining California spotted owl 
populations.

[[Page 29893]]

However, projection matrices were determined to bias results of spotted 
owl population trends because they do not account for movement of 
spotted owls in and out of the population (Franklin et al. 2004). With 
the exception of the San Bernardino study area, California spotted owl 
study areas were considered ``open,'' (owls moved in and out of the 
study areas) and, as stated by Franklin et al. (2004:53), ``we do not 
expect [traditional projection matrices] to yield useful inferences for 
geographically open systems.'' Thus, we place greater weight on results 
of more recent meta-analyses (Franklin et al. 2004; Blakesley et al. 
2006), which estimated growth rates for each study area using the 
``Pradel'' method, than on methods that employed the projection matrix. 
The Pradel method avoids potential biases that cause uncertainty in 
estimating population trend using the projection matrix because it 
incorporates emigration and immigration rates (Franklin et al. 2004). 
In our 2003 finding, we included a discussion of the results of a meta-
analysis using the Pradel method for five California spotted owls 
demographic study areas--Lassen (LAS), Eldorado (ELD), Sierra (SIE), 
Sequoia/Kings Canyon (SKC), and San Bernardino (SAB)--using a draft 
manuscript of data that was collected from 1990 to 2000 for the ELD, 
SIE, and SKC study areas, and from 1990-1998 for the SAB study area 
(later published in Franklin et al. 2004).
    A more-recent draft meta-analysis report was submitted to the 
Service on February 21, 2006 (Blakesley et al. 2006) for data collected 
from 1990 to 2005 in four study areas in the Sierras. The San 
Bernardino study area was not included in this report because there 
were no survey data after 1998. This new meta-analysis used methods 
that were very similar to those used in Franklin et al. (2004), but 
incorporated many improvements; methods used in this new meta-analysis 
are described in Blakesley et al. (2006). At the request of the 
Service, this new analysis also included population viability analyses 
(PVAs). Overall, results of the new meta-analysis (Blakesley et al. 
2006) reported more positive indications of population trends for the 
spotted owls of the Sierra than did the older analysis, as summarized 
below.
    In the meta-analysis of all four study areas, survival rates of 
adult spotted owls (territorial owls at least 3 years old) were 
estimated to have increased through time (Blakesley et al. 2006). This 
result is important because ``spotted owl population growth is most 
sensitive to changes in adult survival'' (Blakesley et al. 2006:27). 
Analysis of reproductive output on individual study areas showed 
varying degrees of an even-odd year effect (with good reproduction in 
even years, poor reproduction in odd years) for the four study areas. 
As with the earlier meta-analysis, lambda, or the finite rate of 
population change, was calculated as an annual estimate to determine if 
the population increased, decreased, or remained stationary. In the 
earlier meta-analysis (Franklin et al. 2004), lambda for LAS showed no 
trend (was stationary), lambda for SKC decreased and then increased 
over time, and lambdas for ELD and SIE decreased through time, with 
that of the ELD being especially steep. With the additional years' data 
included in the new meta-analysis, no strong evidence was found for 
decreasing linear trends in lambda on any of the study areas. Lambda 
for SKC decreased then increased over time, lambdas for LAS and SIE 
were relatively stationary, and lambda for the ELD showed decreases 
through the 1999 time period, and then subsequent increases (Blakesley 
et al. 2006).
    Mean lambdas estimated for the ELD (1.007) and SKC (1.006) were 
greater than 1.0, indicating possible increasing populations, the mean 
lambda estimated for the SIE (0.992) was nearly 1.0, indicating a 
possible stationary population, and the mean lambda estimated for LAS 
(0.973) was less than 1.0, indicating a possible declining population. 
Because these values for lambdas were estimates (it is not possible to 
calculate the exact value), confidence intervals were calculated to 
provide an understanding of how close the estimated mean was to the 
true mean. For example, if a 95-percent confidence interval for an 
estimated mean lambda of 0.98 was between 0.96 and 1.02, this would 
tell us that even though our estimated mean lambda was 0.98, we are 95 
percent confident that the true lambda is between 0.96 and 1.02. In 
this example, the confidence interval included 1.0, which means we are 
95 percent confident that the true lambda is not statistically 
different from a stationary population. In the meta-analysis results, 
the 95-percent confidence intervals for estimates of mean lambda for 
all four study areas in the Sierras included 1.0, indicating that 
statistically the populations were not different from stationary 
populations. The confidence interval for LAS barely included 1.0, 
however, suggesting that the spotted owls in that study area may have 
been declining (Blakesley et al. 2006).
    Using annual lambda estimates calculated in the meta-analysis, 
Blakesley et al. (2006) evaluated the trajectory of each study 
population through time. This exercise used a hypothetical starting 
population of 100 owls on each study area, and calculated the number of 
owls that would remain over the study period (start and end years 
differed for some study areas depending on survey effort (Blakesley et 
al. 2006)). As presented in the report, if there were 100 spotted owls 
in SKC in 1993, hypothetical trajectory estimated that there would be 
113 spotted owls in 2003. Similarly, for a 1992-2004 study period for 
the other study areas, if there were 100 spotted owls in each of these 
areas in 1992, there would be 69 in LAS, 127 in ELD, and 95 in SIE in 
2004. To better understand this exercise as it related to the entire 
population of spotted owls in the Sierra Nevada, we noted that there 
were 400 spotted owls to start (100 owls per study area), and a 
projected end population of 404 spotted owls (by summing 113, 69, 127, 
and 95).
    Finally, for each population, a PVA was produced on predictions of 
declines in the population greater than 10, 20, and 30 percent for 2-20 
years into the future (Blakesley et al. 2006). In a PVA, the 
probability of a certain decline happening in a certain timeframe can 
range from 0.0 to 1.0 (i.e., 0 percent to 100 percent). Ninety-five-
percent confidence intervals on probabilities of declines greater than 
10 percent were 0.0 to 1.0 within 5-10 years for all four study areas. 
Because these probabilities were so imprecise (i.e., the confidence 
interval covered from 0-100 percent probabilities of decline), 
inferences were restricted to 7 years into the future. Even after this 
restriction, predictions had very imprecise confidence intervals. PVAs 
indicated that the probabilities of observing declines of greater than 
10 percent in 7 years were 0.64 (95 percent confidence interval = 0.27 
to 0.94) for LAS, 0.23 (95 percent confidence interval = 0.00 to 0.92) 
for ELD, 0.41 (95 percent confidence interval = 0.09 to 0.78) for SIE, 
and 0.25 (95 percent confidence interval = 0.00 to 0.89) for SKC. The 
large confidence intervals indicate that these probabilities still were 
inexact, making inference from these estimates difficult. In addition, 
the study modeled the probability of observing declines and increases 
of greater than 10, 20, and 30 percent at 7 years in the future for a 
hypothetical population with lambda = 1.0 and temporal process standard 
deviation (estimated from these spotted owl studies) = 0.082. This 
hypothetical population exhibited 0.31, 0.15, and 0.05 probability of 
declining by greater

[[Page 29894]]

than 10, 20, and 30 percent, respectively, and 0.33, 0.20, and 0.11 
probability of increasing by greater than 10, 20, and 30 percent, 
respectively (Blakesley et al. 2006).
    To summarize the recent meta-analysis results for spotted owl 
populations in the Sierras: Adult survival increased through time; most 
populations demonstrated an increasing or stationary trend; there was 
no strong evidence for decreasing linear trends in lambda on any of the 
study areas; modeling of four study areas demonstrated that total 
hypothetical spotted owl numbers did not decrease over time; and the 
PVA results appeared to be somewhat equivocal because of the 
imprecision of the estimates in the real populations and because the 
modeled probabilities of increase and decrease in the hypothetical 
populations were very similar. We find that with the exception of the 
LAS study area, California spotted owl populations in the Sierras show 
little evidence of a decline, and attempts to model future population 
trends are too imprecise to provide an accurate projection.
    In southern California, approximately 71 percent of past or current 
territories of spotted owls are located on public lands, virtually all 
of which are within four national forests (Los Padres, Angeles, San 
Bernardino, and Cleveland). Other than a few project-specific surveys, 
there have been no surveys for spotted owls in the Los Padres National 
Forest since 1991 (Cooper in litt. 2005) or in the Cleveland National 
Forest since 1995 (Winter in litt. 2005), and results from surveys in 
the Angeles National Forest since 1994 have not been compiled (Ann 
Berkley and Leslie Welch, USFS, in litt. 2005). We have the most 
information for spotted owls in the San Bernardino National Forest, 
which contains the largest population of spotted owls in southern 
California. Early modeling conducted for spotted owls in the San 
Bernardino and San Jacinto mountains area indicated possible 
substantial declines (LaHaye et al. 1994). Using different methods and 
analyzing more years of data than those in LaHaye et al. (1994), the 
2004 meta-analysis reported that the mean lambda for the San Bernardino 
study area up through 1998 was less than 1.0 (0.978), but was not 
statistically different from that of a stationary population (Franklin 
et al. 2004). Surveys in the San Bernardino were not conducted from 
1999 to 2002. Surveys of many of the territories in the San Bernardino 
Mountains and San Jacinto Mountains were resumed in 2003 and 2004 
(LaHaye et al. 2003, 2004), but these surveys were not included in the 
recent meta-analysis (Blakesley et al. 2006) due to the lack of surveys 
from 1999 to 2002. Identifying trends from southern California data is 
confounded by factors including: Surveying of additional territories 
through time (from 42 territories in 1987 to 148 territories in 1998); 
surveying only approximately one-half of the San Bernardino territories 
in 2003 (63 territories) and 2004 (77 territories) that were surveyed 
in 1998; lack of separate analysis of occupancy of the same individual 
territories from 1987 to 1998; and high number of occupied territories 
near the end of the survey period (i.e., 100-109 occupied territories 
in 1989, 1990, 1991, and 1995) (LaHaye et al. 2001).

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and our 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. In this evaluation, we confine the scope of our judgment of the 
future actions and programs to reasonably foreseeable outcomes of 
established management direction, rather than a more speculative 
assessment of possible future management scenarios.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of the Species' Habitat or Range

Stand-replacing Fires
    Existing habitat used by California spotted owls appears to be 
vulnerable to stand-replacing catastrophic fire. As described in the 
2003 12-month finding (70 FR 35607) (which we hereby incorporate by 
reference) and above in ``Changes to Habitat,'' removal of large 
overstory trees by logging in conjunction with decades of fire 
suppression has produced forests that are denser, composed of more 
small and medium-sized trees that are more fire-prone than those 
historically in the Sierras and in southern California. The petition 
discusses how changes in forest structure and fuels build-up have put 
some stands at increased risk of stand-replacing fire, and that 
increased risk is considered a threat to existing owl pairs across the 
range of the California spotted owl (Center for Biological Diversity 
2004). Dense stand conditions in California forests have increased tree 
mortality due to drought, and insect and disease outbreaks (University 
of California 1996). Cumulatively, these conditions have increased the 
magnitude of the threat of catastrophic stand-replacing fires to 
nesting and roosting habitats used by spotted owls.
    According to the Forest Service, the greatest continuing threat to 
spotted owls is loss of habitat and subsequent population losses of 
spotted owls due to stand-replacing fire in unnaturally dense forest 
stands (USFS 2004a; 2005a). During the past 30 years, an average of 
17,400 ha (43,000 ac) of wildfire burned annually in the Sierras; in 
the past 10 years, this average has increased to about 25,500 ha 
(63,000 ac) annually (USFS 2004a). The Forest Service believes that it 
will take at least 20 years of fuels treatments before significant 
changes in fire behavior are achieved (USFS 2004a). They estimate that 
about 24,281 ha (60,000 ac) of forests in the Sierras will be burned 
annually in wildfires over the next 20 years (USFS 2004a), which totals 
485,622 ha (1,200,000 ac) or 10.9 percent of the 4.5 million ha (11 
million ac) within these national forests. They estimate that about 25 
percent of these fires will be high-intensity fires, which would affect 
2.7 percent of all of their lands. They also estimate that 
approximately 90 spotted owl Protected Activity Centers (PACs) (6.8 
percent of 1,321 total PACs) would be ``lost to wildfire'' during that 
time (USFS 2004a:278) (This 6.8 percent of total PACs lost is less than 
the 10.9 percent of total forest lost above because many acres 
anticipated to be burned would be outside of PACs in non-suitable 
habitat.) They further estimate that 50 years from now, after 
implementation of the SNFPA, the area burned in the Sierras would drop 
to about 19,830 ha (49,000 ac) annually (USFS 2004a). Recent fires in 
southern California, as presented above in ``Changes to Habitat,'' are 
indicative of anticipated fire-frequencies and fire-intensities 
anticipated for the near future.
Fuels-Reduction Activities
    The petition (Center for Biological Diversity 2004) contends that 
the SNFPA (USFS 2004a) does not adequately protect large trees, high 
canopy closure, multiple-canopy layers, snags, and downed wood, that it 
does not provide limits on the proportion of areas that can be degraded 
through logging, and that it allows for treatment in more PACs than 
does the 2001 Sierra Nevada Forest Plan (USFS 2001). The petition 
further states that logging under the SNFPA both within and outside of 
the Pilot Project area threatens to further degrade and destroy 
California spotted

[[Page 29895]]

owl habitat. Below, we discuss how guidelines in the SNFPA strive to 
maintain spotted owl habitat while reducing the threat of wildfire, and 
we provide details regarding the many restrictions and guidelines that 
limit the proportion of areas that can be logged in spotted owl 
habitat.
    Concern over potential disastrous wildfire effects on human 
communities has strongly influenced management direction toward 
reducing fuels in proximity to human communities in the forested 
interface between wildlands and urban areas. Response to this concern 
is manifested in nationwide activities under the National Fire Plan of 
2000 which established general guidance and funding for land-management 
agencies and communities involved in fire suppression and fuels 
reduction. To reduce the risk of wildfire to communities while 
modifying fire behavior over the broader landscape, the Forest Service 
is conducting a fuels-reduction treatment program (the SNFPA) 
throughout National Forest System lands in the Sierras (USFS 2004a; 
guidelines and regulations most pertinent to this finding are presented 
in Factor D).
    The SNFPA addresses fuels treatments in two areas: The Pilot 
Project area within the Lassen and Plumas national forests and the 
Sierraville Ranger District of the Tahoe National Forest; and all other 
national forest lands in the Sierras. In Factor D, we discuss the 
regulations, standards, and guidelines that govern fuels reductions and 
timber harvests in the Pilot Project area. In brief, within the Pilot 
Project area, all fuels-reduction and timber-harvest activities are 
prohibited within the 411 PACs and spotted owl habitat areas (404.7 ha, 
1,000ac) surrounding all known territory-centers; suitable nesting 
habitat (CWHR 5M, 5D, 6) is managed in Defensible Fuel Profile Zones to 
provide for at least 40 percent canopy cover, retain all trees greater 
than 76.2 cm (30 in) dbh, and to retain at least 40 percent of the 
basal area (generally in the largest trees); and there are specific 
retention requirements in Defensible Fuel Profile Zones and areas 
thinned using individual-tree selection.
    In areas outside of the Pilot Project, priority treatments are 
focused on lands within designated land allocations named wildland 
urban interface (WUI) lands, but treatments will occur both in WUIs and 
in non-WUIs. WUIs are comprised of Defense Zones, which are generally a 
0.4-km (0.25-mi) buffer around developed sites, and Threat Zones, which 
extend approximately 2 km (1.25 mi) out from the Defense Zone boundary. 
In the national forests in the Sierras, there are 129,177 ha (319,204 
ac) in Defense Zones, and 850,433 ha (2,101,470 ac) in Threat Zones; 
approximately 13 percent of WUI acres are in Defense Zones and 87 
percent are in Threat Zones (USFS 2004a). During the 20 years of the 
SNFPA, the Forest Service plans to treat 340,097 ha (840,400 ac) using 
prescribed fire as the initial treatment and 584,365 ha (1,444,000 ac) 
using mechanical treatments, for a total of 970,686 ha (2,398,620 ac) 
(USFS 2004a:FSEIS 98) or 22 percent of the 4.5 million total ha (11 
million ac) in these national forests. Approximately 36 percent of 
these treatments are expected to be in WUIs and 64 percent are 
anticipated in non-WUI lands (USFS 2004a; Don Yasuda, USFS, in litt. 
2006).
    Fuels treatments implemented in PACs, each of which contains 121 ha 
(300 ac), may be important to the persistence of spotted owls if the 
treatments negatively affect the suitability of these areas for 
nesting, roosting, and foraging spotted owls. PACs are delineated 
around all spotted owl territory-centers that have been detected on 
national forest lands since 1986. Pre-project surveys are conducted in 
areas of suitable habitat when occupancy of spotted owls is unknown and 
when projects are expected by the Forest Service to reduce habitat 
quality. New PACs are delineated when appropriate (USFS 2004a). The 
Forest Service employs a 0.4-km (0.25-mi) buffer centered on all PACs 
in which they do not conduct any treatments during the spotted owl 
nesting season (March 1-August 31) unless the spotted owls in question 
are found to not be breeding that year. However, they can prescribe-
burn in PACs during the early nesting season if dry conditions and 
heavy fuel loadings after the nesting season would create conditions in 
which there would be an unacceptable risk of the fires escaping the 
burn unit or fires would reach the canopy and adversely damage nesting 
or roosting habitat (USFS 2004a).
    Treatment of forest fuels has substantial implications for the 
California spotted owl, and raises complex questions about the 
potential benefits and risks to the species that may result from 
reduction of forest fuels. The Forest Service plans to treat 
approximately 265,194 ha (655,310 ac) of suitable habitat, which is 13 
percent of the 2,024,000 ha (5 million ac) of suitable habitat in these 
national forests. The primary technique of fuels reduction, which is 
thinning understory trees with mechanical equipment and/or prescribed 
fire, may have detrimental effects on spotted owl habitat in the short 
term, but may favor development of habitat in the longer term, and may 
reduce the likelihood of catastrophic fire that could substantially 
degrade or eliminate habitat.
    The potential reduction in amount of downed wood is another aspect 
of fuels treatments that can affect spotted owls. SNFPA direction 
states that specific retention-levels for downed woody materials within 
treatments are to be made on an individual-project basis, based on 
desired conditions for specific land allocations and the effects of 
future management actions that may create or remove downed logs. In 
general, the Forest Service will emphasize retention of downed woody 
material in the largest size classes. General guidelines for large-snag 
retention provide for retention of 3 to 6 of the largest snags per 
acre, depending on the forest habitat-type of the treatment (USFS 
2004a).
    Changes in forest structure due to treatments within PACs outside 
of the Pilot Project area may degrade the capability of PACs to supply 
suitable nesting and roosting habitat for spotted owls. Such changes 
include cutting of larger trees, decrease in canopy closure, increased 
fragmentation, removal of snags, and reduction in amount of downed 
wood. SNFPA projects throughout these national forests are to retain 
all trees 76 cm (30 in) dbh or greater, with exceptions for operability 
(e.g., road construction, road reconstruction, temporary landing 
construction). Due to the need to more-aggressively reduce fire threat 
in Defense Zones, the only limitation to the level of treatment in 
Defense Zones is this 76-cm (30-in) retention rule. In Threat Zones, 
the focus of treatments is to remove surface and ladder fuels; there, 
projects are to retain at least 5 percent of the total treatment area 
in trees of 15 to 61 cm (6 to 24 in) dbh. We anticipate that few if any 
nest trees of spotted owls will be lost during these treatments because 
few spotted owls use nest trees smaller than 76 cm (30 in) dbh (see 70 
FR 35607 and Service 2006) and all known nest trees will be protected.
    The Forest Service avoids conducting fuels treatments within PACs 
unless doing so would compromise the overall effectiveness of the 
landscape fire and fuels strategy. If the Forest Service determines 
that fuels treatments within PACs are necessary, activities are 
constrained to remove only surface and ladder fuels unless it is 
necessary to remove larger trees (except nest trees) to meet fuels-
reduction requirements (such as in Defense Zones). Outside of PACs,

[[Page 29896]]

the Forest Service allows more flexibility to remove larger trees that 
contribute to canopy closure in order to meet fuels-reduction needs.
    Reduction in canopy cover may have adverse effects on site 
occupancy, survival, and reproduction of spotted owls due to exposure 
to weather and modification of preferred forest structure. The Forest 
Service anticipates that three types of fuels-reduction treatments 
would change suitable habitat (nesting, roosting, or foraging habitat) 
into non-suitable habitat, using the threshold of 40 percent canopy 
closure as the criterion for suitable/non-suitable habitat as described 
above. The three types of treatments are described as follows. (1) 
Outside of the Pilot Project area, the Forest Service plans to treat 
3,490 ha (8,624 ac) within PACs in WUI Defense Zones (USFS 2004a), and 
they anticipate that canopy-cover reductions to less than 40 percent 
would occur in no more than 5 percent of these acres (Yasuda, in litt. 
2006), or 175 ha (431 ac). This is only 0.1 percent of the total area 
of the 1,321 PACs, and these treatments are expected to decrease the 
chances that these PACs will be lost due to fires. This is the only 
case in which the Forest Service anticipates changing suitable habitat 
to non-suitable habitat in PACs in the Sierras. (2) Within the area 
managed under the Pilot Project, all of the 8,650 ha (21,375 ac) of 
suitable habitat to be group-selection harvested probably will be 
reduced to less than 40 percent canopy closure. Group-selection 
harvests are 0.2-0.8 ha (0.5-2 ac) in size, so these small patches may 
not be large-enough gaps in the canopy to adversely affect spotted 
owls. To the contrary, such small breaks in the forest could provide 
good habitat for woodrats (Williams et al. 1992), the preferred prey 
for spotted owls in much of the Sierras (Thrailkill and Bias 1989). (3) 
Also within the area managed under the Pilot Project, approximately 
8,827 ha (21,812 ac) to be treated as Defensible Fuel Profile Zones in 
CWHR-classed 4M and 4D stands are expected to go below 40 percent 
canopy closure (Yasuda in litt. 2006). We anticipate that the majority 
of the 8,827 ha (21,812 ac) of suitable habitat to be cut to below 40 
percent canopy cover for Defensible Fuel Profile Zones would then be 
unsuitable for use by spotted owls, but that the edges of some of these 
areas would serve as foraging habitat. The most-important areas for 
spotted owls will not be affected by these two types of treatments in 
the Pilot Project area, because no PACs will be treated in the Pilot 
Project area. Overall, a total of 17,652 ha (43,618 ac) is anticipated 
to be downgraded from suitable to non-suitable habitat due to 
treatments via the SNFPA, which is 0.9 percent of the 2,024,000 ha (5 
million ac) of present suitable habitat. Only 1 percent of these areas 
that would be reduced to less than 40 percent canopy cover would be in 
PACs; 99 percent would be outside of PACs within the Pilot Project 
area.
    In the Sierras, there are 1,321 PACs totaling 170,688 ha (421,780 
ac). In the 2001 Framework, no more than 10 percent of the individual 
PACs were to be treated per decade, whereas in the 2004 Framework no 
more than 10 percent of the PAC acres are to be treated per decade. 
This difference results in increasing the percentage of treated PACs 
during the 20-year life of the SNFPA from 20 percent (263 PACs) to 26 
percent (343 PACs) of the 1,321 total PACs, and increasing the areal 
extent of treatments from 6,145 ha (15,184 ac) to 6,931 ha (17,126 ac), 
which is an increase of 786 ha (1,942 ac) (USFS 2004a). But only 
portions of selected PACs would be treated, and the total treated area 
(6,931 ha or 17,126 ac) comprises 16.6 percent of the area within the 
343 PACs to be treated, or 4.3 percent of the area within all of the 
1,321 PACs. The Forest Service anticipates that fuels treatments will 
lessen the total number of PACs that may be lost to wildfire (estimated 
to be 90; see above) due to lessening the severity and extent of 
wildfires and, conversely, that some of the 343 PACs scheduled for 
treatment may burn in wildfires before treatment. Consequently, the 
total number of PACs affected by wildfires or treatments is expected to 
be fewer than 433 (Yasuda in litt. 2006). During 2004 and 2005, the 
Forest Service used prescribed-fire or mechanical means to treat all or 
portions of 97 PACs (7 percent of 1,321 PACs), which was an area of 
15,055 ha (37, 201 ac) (Efird in litt. 2006).
    As presented above in ``Habitat Use,'' canopy cover in nesting and 
roosting habitat typically is at least 70 percent, so fuels reductions 
within PACs that lower canopy cover to less than 70 percent are 
anticipated to adversely affect the suitability of those stands as 
nesting and roosting habitat. Reductions of canopy cover to 40-50 
percent would alter nesting or roosting habitat so that it would 
function chiefly as foraging habitat.
    As mentioned above, these reductions in canopy cover within PACs 
will occur in no more than 4.3 percent of the area within all PACs. In 
many cases, the renewed growth of tree-crowns after thinning is 
expected to fill-in the canopy cover to some degree within one to two 
decades, so effects of reduction in canopy closure due to thinning of 
understory trees would be temporary; however, we do anticipate adverse, 
short-term effects from this reduction of canopy cover within PACs. We 
consider the risk of extinction for the spotted owl from catastrophic 
fire to be a far greater concern than any other evaluated threat, and 
we anticipate that implementation of the SNFPA will reduce the threat 
of wildfire, thus benefitting the spotted owl in the long-term.
    As presented in Factor D, mechanical treatments in ``strategically 
placed landscape area treatments'' (SPLATs) in late-seral forest stands 
outside of PACs include safeguards for spotted owl habitat including 
retention of at least 50 percent canopy cover averaged within the 
treatment unit (with exceptions that allow retention of as low as 40 
percent canopy cover), and retention of live trees 76 cm (30 in) dbh or 
greater. It appears that areas modified in such a manner would remain 
as suitable foraging habitat, or be converted from nesting/roosting 
habitat to foraging habitat. Reproduction in California spotted owls in 
an area where woodrats were a main food source was maximized with small 
blocks of spotted owl habitat and large amounts of edge between spotted 
owl habitat and other habitats (Franklin et al. 2000). Other studies 
also support this 40-percent canopy-cover threshold for suitable 
habitat (e.g., Call et al. 1992; Verner et al. 1992b; Zabel et al. 
1992; Moen and Gutierrez 1997). With information currently available to 
us, it is difficult to estimate the effects of converting nesting/
roosting habitat to foraging habitat. If nesting/roosting habitat is 
limited, then treatments that reduce nesting/roosting to foraging could 
have an adverse effect on spotted owls. If nesting/roosting habitat is 
not limited, then the effect could simply be an increase in foraging 
habitat. Locations scheduled for treatments will be identified on a 
project-specific basis in future years, at which time site-specific 
data on whether nesting/roosting habitat is limited in those areas may 
become available.
    The petition (Center for Biological Diversity 2004) states that the 
above-mentioned threats have more substantial effects to spotted owls 
within the areas in the Sierra Nevada described in Beck and Gould 
(1992) as areas of concern, due to bottlenecks or gaps in spotted owl 
distribution, locally isolated populations, highly fragmented habitat, 
and areas of low spotted owl density. However, ``[r]ather than 
reflecting current negative effects on spotted owls, areas of concern * 
* * simply indicate potential areas where future problems

[[Page 29897]]

may be greatest if the owl's status in the Sierra Nevada were to 
deteriorate'' (Beck and Gould 1992:45). Even though these areas of 
concern do not necessarily indicate areas in which spotted owls are at 
risk at this time, we agree with Beck and Gould (1992), Verner et al. 
(1992a), USFS (2001), and USFS (2004a) that the risk associated with 
management within the areas of concern in the Sierra Nevada is higher 
than that in other areas due to bottlenecks or gaps in spotted owl 
distribution, locally isolated populations, highly fragmented habitat, 
and areas of low spotted owl density. Beck and Gould (1992:45) state 
that areas of concern may experience a greater impact if spotted owl 
populations were deteriorating in the Sierras. However, the California 
spotted owl's status in the Sierra Nevada is not deteriorating as is 
evidenced by the increasing adult survival and stationary trends of the 
populations. Thus, we conclude that owls in the areas of concern in the 
Sierra Nevada are not experiencing heightened effects from threats 
discussed in this section.
    To summarize the discussion of fuels-reduction treatments for the 
Sierra Nevada, we anticipate short-term adverse effects from certain 
logging activities, but expect long-term benefits from the reduced 
wildfire risk. Catastrophic wildfire appears to be the greatest 
potential threat to the California spotted owl, and fuels-reduction 
treatments are a necessary measure to reduce that threat. We have 
looked at the cumulative effects of wildfire and fuels treatments and 
concluded that, although fuels treatments will have some short-term 
effects to owls, those treatments will offset much of the impact of 
wildfire in future years by reducing the extent of wildfire damage. Our 
analysis shows that fuels-reduction treatments will not threaten the 
continued existence of the spotted owl, as only 0.9 percent of the 
2,024,000 ha (5 million ac) of present suitable habitat will be 
downgraded from suitable to unsuitable habitat via the SNFPA, and 
reductions in canopy cover in PACs to the 40 or 50 percent level will 
occur in only 4.3 percent of the area within all PACs.
    In southern California, the four national forests began operating 
under new Land Management Plans (LMPs) in September, 2005. The new LMPs 
continue thinning and salvage-related timber sales, with a focus on 
removal of small-diameter, high-density understory trees and on dead 
and diseased overstory trees (USFS 2005a). (The new management 
direction is discussed further in Factor D.) There are 2,736 km (1,700 
mi) of linear WUI land allocations on the four national forests. Fuels-
related vegetation treatments and thinning projects will be located 
within these WUIs. The type and intensity of fuels treatments is 
expected to vary by vegetation type and proximity to human 
developments. The most-intensive treatments will occur within the WUI 
Defense Zones, which are buffer zones around developed sites that may 
be up to 457 m (1,500 ft) wide; there, trees will be mechanically 
thinned to 40 percent canopy cover or less with no ladder fuels (USFS 
2005b; Loe in litt. 2006). Within Threat Zones, treatments will 
maintain at least 40 percent canopy cover (USFS 2005b; Loe in litt. 
2006). The Forest Service projected the maximum area to be treated in 
forest types used by spotted owls in southern California (mixed 
conifer, bigcone Douglas-fir (Pseudotsuga macrocarpa), and hardwood 
forests and woodlands) to be 8,168 ha (20,183 ac) in Defense Zones and 
98,777 ha (244,083 ac) in Threat Zones (USFS 2005a), which sums to 22.6 
percent of the 473,473 ha (1,170,000 ac) of forest types used by 
spotted owls in southern California. Consequently, using the 40-percent 
canopy cover criterion, up to 1.7 percent of suitable habitat in 
Defense Zones may be changed from suitable to unsuitable habitat, and 
up to 20.9 percent of the nesting, roosting, or foraging habitat would 
only be suitable for foraging habitat in Threat Zones. With information 
currently available to us, it is difficult to estimate the effects of 
converting nesting/roosting habitat to foraging habitat. If nesting/
roosting habitat is limited, then treatments that reduce nesting/
roosting to foraging could have an adverse effect on spotted owls. If 
nesting/roosting habitat is not limited, then the effect could simply 
be an increase in foraging habitat. Locations scheduled for treatments 
will be identified on a project-specific basis in future years, at 
which time site-specific data may become available on whether nesting/
roosting habitat is limited in those areas.
    In Factor D, we discuss the regulations, standards, and guidelines 
that govern fuels reductions and timber harvests in southern 
California. In brief, the LMPs: Provide limited operating periods 
within 0.4 km (0.25 mi) of occupied territory-centers and nest sites 
during the breeding period; prohibit treatments within 12-24 ha (30-60 
ac) of forest immediately surrounding nest stands in the Threat Zone; 
and include other protections for habitat in the Defense Zone, PACs, 
and larger core areas (USFS 2004b).
Timber Harvest on Federal Lands
    The petition contends that logging activities on federal lands in 
the Sierras under the SNFPA and in southern California threaten to 
further degrade and destroy spotted owl habitat, resulting in continued 
declines in numbers of spotted owls (Center for Biological Diversity 
2004). As presented below, the best-available data indicate that Forest 
Service management documents include adequate safeguards to protect 
spotted owls and their habitat, and fuels-reduction activities are 
anticipated to decrease the threat of stand-replacing wildfires. 
Therefore, we are not anticipating declines in spotted owl numbers due 
to these activities.
    Recent history of timber harvest on Federal lands in the Sierra 
Nevada and in southern California was presented above in ``Changes to 
Habitat.'' During the next 20 years, all timber harvests on Federal 
lands in the Sierras will be carried out as fuels treatments via the 
SNFPA as presented above in this discussion and below (Factor D). These 
fuels treatments are anticipated to result in an average harvest of 330 
mmbf of green saw timber per year for the first decade, and 132 mmbf 
per year for the second decade. An additional annual 90 mmbf of salvage 
timber sales is projected during the 20-year period (USFS 2004a). In 
southern California, the four national forests expect to sell in 2006 
approximately the same amount of saw timber that they sold in 2005 (10 
mmbf) from salvage sales and fuels-reduction projects, and they 
anticipate that this annual total will drop substantially in subsequent 
years as salvage-sale material is harvested (Loe in litt. 2006). All 
harvests on Federal lands are conducted under the regulations described 
in Factor D.
Timber Harvest on State and Private Lands
    The petition states that timber harvest on private lands threatens 
to further degrade and destroy spotted owl habitat, resulting in 
continued declines in numbers of spotted owls (Center for Biological 
Diversity 2004). Below, we summarize information we collected regarding 
timber harvest on private lands, including various safeguards that are 
intended to protect the California spotted owl.
    Recent history of timber harvests on private lands was presented 
above in ``Changes to Habitat.'' In Factor D, we present the regulatory 
mechanisms that direct forest management relative to spotted owl 
habitat in State and private lands. Here in Factor A, we describe, to 
the best of our knowledge, how private

[[Page 29898]]

timber companies manage their forests relative to spotted owls and 
their habitat. As stated above in ``Numbers and Connectivity,'' SPI 
lands include more than 200 spotted owl territories, there are 40 
territory-centers either on or within 1.6 km (1 mi) of the land owned 
by Soper-Wheeler, there are three nest sites either on or immediately 
adjacent to W.M. Beaty-managed lands, and there are no known 
territories on lands owned by Fruit Growers, Collins Pine, or Roseburg 
Resources. Most of the following information, therefore, concerns SPI.
    SPI maintains a geographic information system-based database with 
all of the approximately 200 known California spotted owl territories 
within its boundaries (Self in litt. 2005). SPI checks its database and 
other databases (e.g., Natural Diversity Database, Forest Service, 
CDFG, CDF) for locations of known spotted owl territory-centers within 
1.6 km (1 mi) of proposed activities (Self in litt. 2005). To estimate 
whether timber harvests were negatively affecting site occupancy of 
California spotted owls, SPI began conducting an occupancy study in 
2004 in an area that had recently been subjected to many intensive, 
even-aged timber harvests. The area had been surveyed by spotted owl 
biologists of the Kern River Research Center from 1991 to 1994. All 
five of the territories surveyed in 1991-1994 were occupied by spotted 
owls during 2004-2005 (Murphy in litt. 2006). Through site-occupancy 
checks, one site was incidentally determined to be reproductive in 2005 
(Murphy in litt. 2006). Reproductive monitoring will be conducted on 
all territories in 2006 (Murphy in litt. 2006).
    When SPI lays-out a Timber Harvest Plan (THP), it typically 
delineates a 6.5-11 ha (16-28 ac) no-cut unit around each territory-
center (Murphy in litt. 2006). Prior to all harvests, SPI surveys all 
known spotted owl territories within 0.4 km (0.25 mi) of proposed 
harvests to determine site-occupancy. Units with nesting spotted owls 
are not harvested for the foreseeable future, and harvests in units 
with nesting spotted owls within 0.4 km (0.25 mi) are postponed until 
after the breeding season (Murphy in litt. 2006). SPI does not remove 
any California spotted owl territories from the database even if 
occupancy checks indicate apparent non-occupancy, and therefore SPI 
will continue to provide protection for all known territories for the 
foreseeable future (Murphy in litt. 2006). When marking trees in 
selection harvests, indications of nesting by raptors are detected by 
inspection on an individual-tree basis by trained foresters or marking 
crews (Murphy in litt. 2006). In addition, prior to even-aged 
regeneration harvests, SPI wildlife biologists, foresters, botanists or 
contractors (who are trained to do so) conduct ``walk-through'' surveys 
to locate and protect spotted owls and other raptors that might have 
re-located into a planned harvest unit (SPI 2002). Both occupancy 
surveys and walk-through surveys include attempts to detect spotted 
owls by vocal imitations of their calls (Self in litt. 2006). SPI 
produces annual reports concerning the implementation and results of 
its occupancy surveys and walk-through surveys (e.g., SPI 2004, 2005). 
For example, of the 801 harvest units throughout California that were 
candidates for walk-through surveys in 2004, 92 percent were surveyed 
(SPI 2005). Of the 61 units that did not receive surveys: 15 were not 
harvested in 2004, 14 were harvested no later than February 1 (before 
the breeding season), 28 were harvested no earlier than September 1 
(after the breeding season), three were in brush fields being cleared 
for restocking, and one was harvested on August 15 (late in the 
breeding season) (SPI 2005). Thus, in approximately 5 percent (43 of 
801) of the units, spotted owl habitat may have been negatively 
affected to some unknown degree due to SPI harvest operations in 2004. 
In 2004, no new California spotted owl territories were found during 
occupancy surveys adjacent to units or during walk-through surveys of 
740 units (SPI 2005). In 2003, reproductive status of three known pairs 
of spotted owls adjacent to units was documented; for the two pairs 
that were nesting, 8-ha (20-ac) no-harvest zones were designated around 
these nests, and the harvests proceeded as planned, and for the pair 
that was not nesting, the adjacent unit was harvested as planned in 
October (after the nesting season) (SPI 2004). During walk-through 
surveys of 713 units in 2003, one new pair of spotted owls was 
discovered, and SPI set an 8-ha (20-ac) no-harvest zone and delayed 
adjacent harvest units until after fledging in August. In addition, two 
known pairs of spotted owls had moved into planned harvest units and 
were nesting, so those two units were dropped from harvest (SPI 2004). 
Under California Forest Practice Rules (FPRs) (CDF 2005) and the known 
nest-site protection conducted by SPI, these units will not be 
harvested for the foreseeable future. Virtually all surveys in 2003 (92 
percent) and 2004 (97 percent) were done during the nesting season 
(March to August), and approximately three-quarters (73 and 76 percent) 
were done within 4 weeks of harvest (SPI 2004, 2005).
    SPI manages retention of snags to support at least 40 percent of 
the maximum habitat capability for cavity-nesting species based on 
published guidelines and models (SPI 2001); similarly, the Northwest 
Forest Plan (USDA and USDI 1994) requires minimum retention of snags 
sufficient to support species of cavity-nesting birds at 40 percent of 
potential population levels. SPI general guidelines recommend that they 
avoid downed logs that are at least 61 cm (24 in.) dbh and 3 m (10 ft.) 
long (Murphy in litt. 2006). Soper-Wheeler protects 2 to 4 ha (5 to 10 
ac) surrounding known spotted owl nests (McKillop in litt. 2005).
    To summarize, the best-available data indicate that timber harvest 
as conducted on private lands includes adequate safeguards to protect 
spotted owls and their habitat. Such safeguards include pre-harvest 
surveys to detect owls that may be present in the area, a no-cut unit 
around spotted owl territory-centers, retention of snags and downed 
wood, and a policy that protects forest units with nesting owls in the 
foreseeable future. Therefore, we do not anticipate that private lands 
practices will threaten the continued existence of the California 
spotted owl in the foreseeable future.
Tree Mortality
    Tree mortality in the Sierras and southern California related to 
insects or pathogens can have many consequences including: A continuing 
need to enter stands to conduct salvage operations; increased fuel-
loading levels; fewer large, older trees and fewer mid-diameter trees; 
reduction in crown closure; a short-term increase in nutrient cycling; 
a possible increase in snags and hazard trees; fewer trees/area; and 
changes in species composition (USFS 2004a). Insects and disease always 
have been a source of tree mortality in the forests occupied by the 
California spotted owl. Long-term stand densification and recent 
extreme drought have greatly increased tree mortality related to forest 
pests, particularly in the San Bernardino, San Jacinto, and San Diego 
ranges. This effect could cause a substantial reduction in the extent 
of suitable spotted owl habitat and negatively affect the numbers of 
spotted owls regionally (LaHaye 2004). In addition, droughts may 
negatively affect spotted owl prey populations, which would be expected 
to result in reduced productivity of spotted owls (USFS 2004b). The San 
Bernardino National Forest is

[[Page 29899]]

experiencing the worst drought period in over 150 years; consequently, 
for example, huge areas of live oak are dying, and in many areas 
greater than 60 percent tree mortality has occurred in the conifer zone 
(USFS 2004b).
    Sudden oak death, caused by the fungus Phytophthora ramorum, has 
the potential to sharply reduce tree canopy in oak woodlands that 
provide productive habitat for California spotted owls. At present, the 
disease occurs in the wild only in coastal counties in northern and 
central California, south through Monterey County almost to the San 
Luis Obispo County border (COMTF 2004 in USFS 2004b). Tanoak and 
several oak species are most susceptible to the pathogen and may be 
killed by it. However, a growing number of other species have been 
found to harbor the disease without dying, including many native shrubs 
and trees as well as non-native horticultural plants (COMTF 2004 in 
USFS 2004b). Patches of dead oaks and tanoaks totaling 3,399 ha (8,400 
ac) occur on the Los Padres National Forest in Monterey County. In 
April, 2004, nursery stock infected with this fungus was found in 
Monrovia, near Los Angeles, creating potential for the disease to 
spread to wildland plants far south of its current range. The 
seriousness and eventual extent of the threat posed by sudden oak death 
to spotted owl habitat in southern California cannot be predicted at 
this time. In general, tree mortality from drought, insects, and 
disease could contribute to declines in spotted owl habitat, especially 
in southern California.
Development and Other Factors
    The petition states that development on private lands in the Sierra 
and southern California presents a significant threat to the California 
spotted owl, particularly in low elevation riparian hardwood habitats 
(Center for Biological Diversity 2004). Suitable habitat scattered 
among houses and housing developments was not found to be occupied by 
spotted owls in southern California, although areas adjacent to these 
developments contained dense and productive populations of the 
subspecies (Gutierrez 1994). There is a potential for increased 
disturbance to a segment of the San Bernardino Mountains spotted owl 
population as a result of the burgeoning population in southern 
California (LaHaye et al. 1997). Urbanization has similar negative 
implications for Sierra Nevada spotted owls that migrate to lower 
elevations in the winter (Laymon 1988; Verner et al. 1992a).
    Where development occurs, there is a decrease in crown cover and 
tree density and an increase in impervious surface (McBride et al. 
1996). The amount of private vs. public lands in the Sierra Nevada and 
southern California portions of the spotted owl range varies widely by 
county. Estimates from the Sierra Business Council (1997) indicate 
that, for the nine Sierra Nevada counties in the range of the spotted 
owl they analyzed, an average of 46 percent is private land. These nine 
counties are experiencing varying degrees of urban expansion, and have 
projected population growth rates from 0.7 percent in Sierra County to 
6.2 percent in Calaveras County (Sierra Business Council 1997). The 
human population in the Sierra Nevada is projected to triple between 
1990 and 2040, primarily in the lower elevation grasslands and oak 
woodlands (SNCWG 2002). Because spotted owls have been observed in the 
Sierra Nevada to migrate downslope into the lower-elevation pine/
oakwoods during the winter (Laymon 1988), we anticipate this could have 
a negative impact on their seasonal migration patterns. However, 
breeding spotted owls mostly occupy higher-elevation mixed conifer 
forests--not lower-elevation pine/oak woodland habitats. In fact, 
Verner et al. (1992a) stated that mixed-conifer forests were by far the 
most significant habitat for the spotted owl, as most known spotted owl 
territories (82 percent) on Federal lands in the Sierra Nevada are in 
higher-elevation, mixed-conifer forests. Additionally, although the 
petition presents concerns with anticipated development in low-
elevation riparian hardwood habitat, only 1.2 percent of all habitat 
containing spotted owl territories were considered riparian hardwood 
habitat in the Sierra Nevada (Verner et al. 1992a). Thus, we anticipate 
that, although development may impact spotted owl habitat in localized 
areas, the impact will not be throughout the Sierra Nevada populations 
because development will occur primarily in the foothills.
    Southern California's human population has grown substantially over 
the last two decades to over 20 million people and is anticipated to 
grow by another 35 percent over the next two decades (USFS 2005a). A 
substantial amount of private forest land has been, and yet may be, 
developed in the mountains of southern California (USFS 2005a). The 
petitioners and Verner et al. (1992a) expressed concern that 
development in southern California could prevent dispersal between 
spotted owl populations in southern California, as mountain ranges 
occupied by spotted owls probably act as habitat islands with limited 
dispersal between them. We agree that the best-available data indicate 
that the spotted owl populations in the mountains of southern 
California are isolated from one another (Verner et al. 1992a, 
Gutierrez 1994, LaHaye et al. 1994); further, it is probable that this 
isolation could increase in the future.
    The petition states that recreation potentially affects spotted 
owls in several ways, including noise disturbance, construction of 
roads and trails, and expansion of ski resorts (Center for Biological 
Diversity 2004). Recreation is the fastest-growing use of the national 
forests (USFS 2001a). Construction of facilities used for recreation, 
including campgrounds, trails, roads, ski resorts, and cabins likely 
has contributed to the destruction and fragmentation of spotted owl 
habitat. The effect of recreation on spotted owls is poorly understood 
and may be an increasing threat to California spotted owls, especially 
in southern California (Noon and McKelvey 1992).
    Visitor use of southern California forests is estimated to increase 
by 15-20 percent over the next 15 years. It is expected that short-term 
recreation activities such as pleasure driving, hiking, and picnicking 
will increase more than traditional backcountry extended duration 
activities (USFS 2005a). However, light recreation, such as hiking on 
established trails or birdwatching, probably has little impact on 
spotted owls (Swarthout and Steidl 2001, 2003). Most recreation-related 
development such as roads, developed recreation sites, and 
administrative structures that might be expected to occur on southern 
California national forests has already taken place. The Forest Service 
does not anticipate much expansion of its permanent road system beyond 
what is currently in place (USFS 2005a). We thus expect that most major 
impacts related to recreational development will not be a primary 
threat to spotted owls in southern California. Adverse effects on 
forest environments have occurred in the past, however. For example, 
development of ski areas eliminated spotted owl habitat in the past, 
and expansion of existing areas would further reduce it, because ski 
areas in the San Bernardino and San Gabriel Mountains are all located 
on north-facing slopes preferred by spotted owls (USFS 2004b).
    In southern California, the Forest Service will be actively 
managing recreation to offset impacts to spotted owls. Effects to 
wildlife will be reduced through the use of seasonal closures,

[[Page 29900]]

designation of OHV trails, location of developed recreation sites, 
back-country and wilderness restrictions, area restrictions on fuelwood 
collection, and other strategies (USFS 2005a). Limited operating 
periods prohibit vegetation management activities within approximately 
0.4 km (0.25 mi) of the nest site (or territory-center where nest site 
is unknown) during the breeding season (February 1 through August 15) 
unless surveys confirm that spotted owls are not nesting. Although the 
limited operating period does not apply to all existing road use, trail 
use, maintenance, or continuing recreation use, if the environmental 
analysis of proposed projects or activities suggests that either 
existing or proposed activities are likely to result in nest 
disturbance, limited operating periods could be adopted as deemed 
necessary at the project level (USFS 2004a, 2005a).
    As in southern California, recreation is an important forest use in 
the Sierra Nevada. Specific recreation projects are not identified in 
the SNFPA. However, the Forest Service's preferred alternative favors a 
trend toward more dispersed, non-motorized recreation, such as hiking 
and backcountry camping, and would not result in increased levels of 
recreational visitor days (USFS 2004a). Moreover, the SNFPA specifies 
standards and guidelines for mitigation of impacts to the California 
spotted owl where there is documented evidence of disturbance to the 
nest site from existing recreation, off-highway vehicle route, trail, 
and road uses (including road maintenance). The Forest Service operates 
under a further guideline to evaluate proposals for new roads, trails, 
off-highway vehicle routes, and developments for their potential to 
disturb nest sites. The guidelines thus direct that California spotted 
owls are to be given consideration during planning of recreational 
activities.
    The petition states that grazing is likely to indirectly affect the 
owl by reducing or eliminating riparian vegetation, altering forest 
structure and fire regimes, and reducing prey density (Center for 
Biological Diversity 2004). During the late 1800s, heavy grazing of 
surface fuels by livestock may have reduced the influence or extent of 
wildfires (University of California 1996), and subsequent in-growth of 
vegetation on denuded soils may have contributed to the heavy fuel-
loading and tendency towards catastrophic fire now found in much of the 
California spotted owl's range. Over the past 15 to 20 years, livestock 
grazing has declined by over 50 percent in the national forests of the 
Sierras and by approximately 26 percent in the national forests of 
southern California; in addition, grazing is expected to decline 
further (USFS 2004a, 2005a). Grazing in the Sierras occurs on wet and 
moist montane and subalpine meadows, annual grasslands, and in oak 
woodlands. A small amount of literature exists on the effects of 
grazing to the Mexican spotted owl (S. o. lucida), and because the 
best-available information is limited to the Mexican subspecies, we 
apply that information to the California spotted owl. Effects of 
grazing have been placed in four categories: (1) Altered prey 
availability; (2) altered susceptibility to fire; (3) degradation of 
riparian plant communities; and (4) impaired ability of plant 
communities to develop into owl habitat (USFWS 1995, 2004). Impacts can 
vary according to the numbers of grazers, grazing intensity, grazing 
frequency, and timing of grazing as well as habitat type and structure 
and plant composition (Ward and Block 1995). Permitting requirements on 
national forest grazing allotments limit these impacts (USFS 2004a).
    Although the effects of grazing by domestic livestock and wild 
ungulates on the habitats of prey used by spotted owls is a complex 
issue, there exists some knowledge regarding the effects of grazing on 
small mammals frequently consumed by Mexican spotted owls (Ward and 
Block 1995; Ward 2001). Grazing may influence prey availability in 
different ways. Grazing that reduces the density of grasses can create 
favorable habitat conditions for deer mice while creating unfavorable 
conditions for voles (Microtus spp.), meadow jumping mice (Zapus 
hudsonius), and shrews (Sorex spp.) (Medlin and Clary 1990; Schultz and 
Leininger 1991). This change may decrease prey diversity (Medlin and 
Clary 1990; Hobbs and Huenneke 1992). Since populations of small 
mammals fluctuate seasonally and/or year to year, a diverse prey base 
can provide a more predictable food resource for spotted owls over 
time. Conversely, short-term removal of grass and shrub cover may 
improve conditions for spotted owls to detect and capture prey (USFWS 
1995). Current predictions of grazing effects on plant communities as 
they relate to spotted owls are inexact. For the Mexican spotted owl, 
the Service concluded that grazing impacts to nesting, roosting, and 
other mixed conifer habitat will likely be insignificant and 
discountable because grazing usually does not occur within mixed 
conifer habitat; instead, livestock generally remain within meadows or 
riparian areas (USFWS 2004). The same conclusion logically applies to 
the California spotted owl.
    In summary, increased urbanization, which leads to increased 
recreational use, and grazing activities, may result in some lost 
spotted owl habitat, but urbanization in the Sierra Nevada is occurring 
in the low to mid elevations rather than the higher elevation mixed 
conifer spotted owl habitat. However, grazing in the Sierra Nevada is 
declining, and generally occurs outside of the spotted owls primarily 
mixed-conifer habitat. The majority of spotted owl territories in the 
Sierra Nevada (82 percent) and in southern California (86 percent) are 
located on federal land, and are thus protected from development; and 
recreational use is being actively managed, particularly in the higher-
impacted forests of southern California. Therefore, these factors do 
not pose a significant threat now or in the foreseeable future to the 
continued existence of the California spotted owl such that it warrants 
listing.
Summary of Factor A
    Spotted owl habitat is being adversely affected by wildfire, fuels-
reduction activities, timber harvest, tree mortality, and development. 
However, risks due to wildfire and fuels reductions are not additive; 
that is, fuels-reduction activities can have short-term adverse 
effects, but they can also reduce the greater risk of catastrophic 
wildfire in the long term which effectively ameliorates the short-term 
effects. In addition, the standards directing fuels treatments through 
the SNFPA in the Sierras and LMPs in southern California are protective 
of spotted owls themselves and their nest sites. In the Sierras, fuels 
treatments will be conducted over a small percentage (4.3 percent) of 
the area within all 1,321 PACs. In terms of timber harvest, during the 
next 20 years, all timber harvests on Federal lands in the Sierras will 
be carried out as fuels treatments via the SNFPA. Timber harvests on 
private lands are protective of spotted owls and of their nest sites.
    Assessing spotted owl population demographics in the Sierras is 
meaningful to understanding the status of California spotted owls 
throughout the State of California because the Sierra Nevada contains 
approximately 81 percent of known California spotted owl territories. 
Even with losses of habitat from the above causes, spotted owls in the 
Sierra Nevada have shown increased survival during the past 16 years, 
and with the exception of one study area which showed a decline that 
was not statistically significant, spotted owl populations in the 
Sierras are not

[[Page 29901]]

declining. This indicates that, in general, spotted owls in the Sierras 
have not been greatly impacted by the above threats, and there is 
sufficient quality and quantity of habitat to allow for essential life 
history functions. Spotted owls in southern California are at a higher 
risk from threats because of their isolation, but the best-available 
data do not show statistically significant declines. Also, we do not 
anticipate that development, grazing, or recreation will greatly impact 
spotted owls in the Sierras or southern California. Finally, the 
standards directing future fuels treatments through the SNFPA in the 
Sierras and LMPs in southern California, as well as forest practices on 
private lands, protect spotted owls and their nest sites.
    The Service concludes that no available data indicate that the 
removal of trees and the reduction in canopy cover as prescribed by the 
SNFPA and described herein would affect California spotted owl 
reproduction or occupancy such that the California spotted owl is in 
danger of extinction now or within the foreseeable future. This 
conclusion does not mean that other negative, short-term effects would 
not occur. We recognize adverse effects in the areas described above in 
which canopy cover will be reduced to less than 40 percent and in PACs 
where canopy cover is reduced significantly. Researchers have suggested 
that subtle effects could be important if they occur on a wide scale 
(Noon et al. 1992).
    Substantial scientific uncertainty remains regarding the effects of 
fuel treatments in PACs and in all suitable habitat. In the absence of 
demonstrated effects, and considering the small amount of area to be 
treated in relation to the total area within all 1,321 PACs and that 
the potential negative impacts are also accompanied by the positive 
effects of reduction of fire risk and faster development of high-
quality habitat, we find that the fuel treatments proposed under the 
SNFPA do not constitute a significant threat to the California spotted 
owl at this time. There is uncertainty whether the efforts will be 
sufficient to significantly lessen the threat to spotted owl habitat 
due to the enormity of the task over such a large area, the unproven 
nature of some of the area treatments outside of PACs, and questionable 
funding for this 20-year project. While many aspects of the protection 
afforded to the spotted owls on private lands are voluntary, protection 
is nonetheless being afforded by private landowners, and the Service 
has no indication that this will change in the foreseeable future.
    There are concerns about the future of the spotted owls in southern 
California, which exist in mountaintop-groups isolated from one another 
and isolated from spotted owls in the Sierras. However the best-
available data show that trends in southern California owl populations 
are not statistically different than stationary populations. Further, 
despite fires, tree mortality, development and other factors, the best-
available data indicate that survival of spotted owl populations in the 
balance of the State of California (the Sierras) has been improving at 
the population level, and those spotted owls constitute 81 percent of 
the known territories of California spotted owls. We expect this trend 
to continue as the Forest Service in the Sierras implements its fuels-
reduction strategy that includes protections for the spotted owl and 
its habitat. Tree mortality and development continue to degrade and 
eliminate some spotted owl habitat in the Sierras and in southern 
California. In summary, threats affecting California spotted owls and 
their habitat, or in combination with other factors, are causes of 
concern but do not pose now or in the foreseeable future a significant 
threat to the continued existence of the California spotted owl such 
that it warrants listing.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    We found no evidence that overutilization for commercial, 
recreation, scientific, or educational purposes is a threat to the 
California spotted owl, and the petition does not present any threats 
relative to this factor.

Factor C. Disease or Predation

    The petition expresses concern that West Nile Virus (WNV) presents 
a serious potential threat to California spotted owls, and recommends 
that its effects on spotted owls be monitored closely (Center for 
Biological Diversity 2004).
    A discussion of known diseases and parasites can be found in the 
2003 12-month finding for the California spotted owl (68 FR 7580) and 
that information is incorporated by reference. We supplement that 
information with the following best-available data regarding WNV 
research and describe the results of recent research regarding the 
presence of WNV in spotted owls.
    West Nile Virus was first detected in the United States in 1999 in 
New York, and has quickly spread to the western United States. WNV has 
not yet been detected in spotted owls in California; 187 northern and 
California spotted owls were tested for the presence of WNV and WNV 
antibodies (Franklin in litt. 2004, 2005; Rocky Gutierrez, Univ. of 
Minnesota, in litt. 2005, Keane 2005). In addition, none of the 251 
small mammals (e.g., mice, northern flying squirrels, dusky-footed 
woodrats) sampled tested positive for WNV (Franklin in litt. 2005). A 
more-complete description of these results can be found in our 2005 90-
day finding (70 FR 35607) which is incorporated by reference. In 
summary, the best-available data show that WNV does not presently 
threaten California spotted owls and we have no indication that it will 
become a substantive threat in the foreseeable future.
    The petition cites a personal communication (Zach Peery, Univ. of 
California, in litt. 1999) in support of its claims that, because great 
horned owls (Bubo virginianus) and red-tailed hawks (Buteo jamaicensis) 
tend to forage in open areas and because great horned owls are known 
predators of spotted owls (Forsman et al. 1984), the reduction of 
canopy cover and creation of breaks in the canopy due to logging may 
increase predation of spotted owls (Center for Biological Diversity 
2004). The petition does not present any scientific information that 
supports the idea that logging increases predation of spotted owls by 
great horned owls or red-tailed hawks, and we are unaware of any such 
information. As noted in the 2003 12-month finding (68 FR 7580), 
spotted owls are preyed upon by other raptors and mammals. Natural 
predation probably has little effect on healthy populations. However, 
as populations become smaller and more fragmented, the impacts of 
natural predation may also become significant. Effects to California 
spotted owls from their new competitor and possible predator, the 
barred owl, are discussed in Factor E.
    In summary, disease or predation factors by themselves, or in 
combination with other factors, do not pose now or in the foreseeable 
future a significant threat to the continued existence of the 
California spotted owl such that it warrants listing.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

Federal Regulations
    Existing Federal regulatory mechanisms that provide some protection 
for the California spotted owl and its habitat include the following: 
Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712), Wilderness Act of 
1964 (16 U.S.C. 1131-1136), National Environmental Policy Act (NEPA) 
(42 U.S.C. 4321 et seq), Multiple-Use

[[Page 29902]]

Sustained-Yield Act of 1960 (16 U.S.C. 528-531), Forest and Rangeland 
Renewable Resources Planning Act of 1974 (16 U.S.C 1601-1614, 
Sec. Sec.  1641-1647), SNFPA (USFS 2004a), and various LMPs in national 
forests. The California spotted owl, as a member of the Order 
Strigiformes, is included in Appendix II of the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES). CITES is an international treaty established to prevent 
international trade that may be detrimental to the survival of plants 
and animals. We have no indication that the international trade of 
spotted owls is a concern, so protections from CITES are not relevant 
to this finding.
    NEPA. 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. NEPA documentation is provided in an environmental 
impact statement, an environmental assessment, or a categorical 
exemption, and may be subject to administrative or judicial appeal. 
These documents are primarily disclosure documents, and NEPA does not 
require or guide mitigation for impacts.
    Under NEPA, Forest Service analysis of each proposed project may 
include a biological evaluation that discloses the potential impacts to 
plant and animal species, including the California spotted owl. 
Projects that are covered by certain ``categorical exclusions'' are 
exempt from NEPA biological evaluation. In 2003, the Forest Service and 
the Department of Interior revised their internal implementing 
procedures describing categorical exclusions under NEPA (68 FR 33814) 
to add two categories of actions to the agency lists of categorical 
exclusions: Activities to reduce hazardous fuels, and rehabilitation 
activities for lands and infrastructure impacted by fires or fire 
suppression. These exclusions apply only to activities meeting certain 
criteria including mechanical hazardous-fuels-reduction projects up to 
400 ha (1,000 ac) in size and hazardous-fuels-reduction projects using 
fire of less than 1,820 ha (4,500 ac) (See 68 FR 33814 for other 
applicable criteria.). Exempt post-fire rehabilitation activities may 
affect up to 1,700 ha (4,200 ac). As stated above in Factor A, fuels-
reduction activities can reduce key habitat elements for spotted owls 
such as canopy cover, large downed logs, woody debris, and large snags, 
but they have the important counter-balancing benefit of reducing the 
probability of catastrophic, stand-replacing fires.
    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 28 ha (70 ac) of live 
trees with no more than 0.8 km (0.5 mi) of temporary road construction; 
(2) the salvage of dead and/or dying trees not to exceed 101 ha (250 
ac) with no more than 0.8 km (0.5 mi) 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 101 ha (250 ac) with no 
more than 0.8 km (0.5 mi) of temporary road construction.
    A presentation of information regarding the MBTA, the Wilderness 
Act of 1964, and the Multiple-Use Sustained-Yield Act of 1960 can be 
found in the 2003 12-month finding (68 FR 7580) which is incorporated 
by reference. The Forest Service manages national forests under the 
Forest and Rangeland Renewable Resources Planning Act of 1974 as 
amended by the National Forest Management Act of 1976 (NFMA). 
Implementing regulations for NFMA (36 CFR 219.20(b)(i)) require all 
units of the National Forest System to have a land and resource 
management plan (LRMP). The purpose of LRMPs is to guide and set 
standards for all natural resource management activities over time. 
NFMA has required the Forest Service to incorporate standards and 
guidelines into LRMPs, including provisions to support and manage plant 
and animal communities for diversity, and the long-term range-wide 
viability of native and desired non-native species. On January 5, 2005, 
the Forest Service issued a new planning rule under NFMA (70 FR 1023) 
that changed the nature of Land Management Plans so that plans 
generally are strategic in nature and may be categorically excluded 
from NEPA analysis. Rather than providing management direction and 
mandated standards, plans will provide guidance through five 
components: Desired conditions, objectives, guidelines, suitability of 
areas, and special areas.
    Under the new rule, the primary means of sustaining ecological 
systems, including species, will be through guidance for ecosystem 
diversity, whereas the old rule specifically directed that viable 
populations of existing native (and non-native) species be maintained 
within each planning unit. The new rule directs the Responsible 
Official to provide additional provisions, if needed, for threatened 
and endangered species, species-of-concern, and species-of-interest 
within overall multiple-use objectives. Because the California spotted 
owl is currently identified as a sensitive species by the Regional 
Forester, it will likely be categorized as a species-of-concern in the 
future, but we cannot predict specific protections that will be 
provided for the owl.
    The new rule will take effect as forests, except the southern 
California forests, complete previously-scheduled revisions to LRMPs. 
The national forests in southern California (Los Padres, Angeles, San 
Bernardino, and Cleveland) were in the plan-revision process when the 
new rule was promulgated, so completed their plan revisions in 
September of 2005 under the 1982 planning rule. The national forests of 
the Sierra Nevada are scheduled to initiate plan revisions over the 
next 3 years (Efird in litt. 2005). The extent to which the new 
planning rule will change forest management is not known. However, the 
discretion of the Responsible Official in making land-management 
decisions continues to be constrained by a requirement that any 
decision must demonstrate it contributes to meeting the desired 
condition. Responsible Official discretion is also guided by a body of 
law, regulation, policy, and public oversight that transcends LMP 
direction (Efird in litt. 2005). See below for more information on 
forest management planning.
    Regulations specific to national forests in the Sierras. The 
petition contends that the SNFPA (USFS 2004a): Replaced explicit 
standards and guidelines in USFS (2001) with vague descriptions of 
desired future conditions; does not adequately protect large trees, 
high canopy closure, multiple-canopy layers, snags, and downed wood; 
and does not provide limits on the proportion of the landscape that can 
be degraded through logging. We agree that the SNFPA replaced some 
standards and guidelines with more general desired future conditions. 
However, as presented below, the best-available data indicate the SNFPA 
does adequately protect spotted owl habitat while lessening the threat 
of wildfire, and that it includes many restrictions and guidelines that 
limit the proportion of areas that can be logged.
    In 1991, the Forest Service initiated the first of several planning 
efforts focused on maintaining the viability of California spotted owls 
on 11 national forests and approximately 4.5 million ha (11 million ac) 
in the Sierra Nevada and Modoc Plateau of California. These

[[Page 29903]]

efforts included a technical assessment of the status of the California 
spotted owl and issuance of interim guidelines (Verner et al. 1992a). 
The primary objectives of the interim guidelines were to protect known 
nest stands, protect large old trees in timber strata that provide 
suitable spotted owl habitat, and reduce the threat of stand-destroying 
fires. They allowed treatment of suitable nesting and roosting habitat 
that reduced canopy cover to 40 percent in timber types selected by 
spotted owls and below 40 percent in other types used by spotted owls 
according to their availability (except in PACs). Under the interim 
guidelines, no mechanism existed to evaluate cumulative impacts of 
timber harvest on California spotted owls in national forests. After 
1993, when baseline surveys for the species were completed within lands 
managed by the Forest Service, forest management continued without 
further requirements to survey for the spotted owl (68 FR 7580).
    In 1995, the Forest Service released a draft environmental impact 
statement for a long-term management plan for California spotted owl 
habitat (68 FR 7580). Final direction was not issued due to new 
scientific information provided by the Sierra Nevada Ecosystem Project 
(SNEP) report released in 1996. In 1998, the Forest Service initiated a 
collaborative effort to incorporate new information from the SNEP 
report into management of Sierra Nevada national forests. This effort 
became known as the Sierra Nevada Framework for Conservation and 
Collaboration (Framework). As part of the Framework, the Forest Service 
developed the SNFPA Environmental Impact Statement (EIS), for which a 
Record of Decision (ROD) was issued on January 12, 2001 (USFS 2001). 
The SNFPA addresses five problem areas: Old forest ecosystems and 
associated species; aquatic, riparian, and meadow ecosystems and 
associated species; fire and fuels; noxious weeds; and lower westside 
hardwood ecosystems. Subsequent to the establishment of management 
direction by the SNFPA ROD, 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 (USFS 2003a), and in June 2003, the Forest 
Service issued a Draft Supplemental EIS for proposed changes to the 
SNFPA (USFS 2003b). The Final Supplemental EIS was issued in January 
2004, and the new ROD was issued on January 21, 2004 (USFS 2004a). 
Forest Plans were amended to be consistent with the new ROD, and all 
subsequent project decisions fall under the 2004 direction. Within the 
range of the California spotted owl, the Modoc, Lassen, Plumas, Tahoe, 
Eldorado, Stanislaus, Sierra, Inyo, and Sequoia national forests, a 
small part of the Humboldt-Toiyabe National Forest, and the Lake Tahoe 
Basin Management Unit are within the area covered by the SNFPA.
    USFS (2004a) provides a system of land allocations to protect 
spotted owl habitat including PACs and Home Range Core Areas. 
Currently, there are a total of 1,321 PACs and Home Range Core Areas 
which result in the protection of 424,052 ha (1,047,858 ac). Each Home 
Range Core Area contains 243, 405, or 971 ha (600, 1000, or 2400 ac, 
respectively) depending on latitude, and Home Range Core Areas (like 
PACs) were delineated around all spotted owl territory-centers that 
have been detected on National Forest lands since 1986. The LMP sets 
Management Intents, Management Objectives, and Desired Conditions for 
each land allocation. Desired conditions provide goals that PACs 
contain at least two tree-canopy layers, dominant and co-dominant trees 
with average diameters of at least 61 cm (24 in) dbh, at least 60 to 70 
percent canopy cover, and provisions for snag and downed woody 
materials (USFS 2004a). Desired conditions for Home Range Core Areas 
include large habitat blocks that have at least two tree-canopy layers, 
have dominant and co-dominant trees with at least 61 cm (24 in) dbh, a 
number of very large old trees greater than 114 cm (45 in) dbh, at 
least 50 to 70 percent canopy cover, and higher-than-average levels of 
snags and downed woody material (USFS 2004a). The Service agrees that 
this management direction provides necessary protections for the 
spotted owl during fuels-reduction activities.
    The primary objective of the 2004 ROD is to reduce the likelihood 
of catastrophic fire throughout national forests, especially near 
developed areas. Forest-wide Standards and Guidelines for fuels 
reduction and thinning stipulate that fuels treatments of 20 ha (50 ac) 
to over 405 ha (1,000 ac) in size (averaging 40 to 121 ha (100 to 300 
ac) be strategically placed (in SPLATs) to interrupt fire spread, 
reduce fire severity, and provide for drought-resistant forests, while 
avoiding PACs to the greatest extent possible. The Forest Service 
anticipates implementing SPLATs on 25-30 percent of National Forest 
lands in the Sierras over 20 years (USFS 2004a). Direction provides 
that fuels treatments may include the use of mechanical thinning and 
prescribed fire. Standards that guide thinning activities stipulate 
that projects be designed to retain live trees 76 cm (30 in) dbh or 
greater, retain at least 40 percent of the existing basal area (outside 
of Defense Zones), and avoid reducing the pre-existing canopy cover by 
more than 30 percent. Projects are to retain at least 50 percent canopy 
cover averaged within the treatment unit, with exceptions that allow 
retention of as low as 40 percent canopy cover. Exceptions within Home 
Range Core Areas are allowed to reduce ladder fuels, provide for 
equipment operability, and minimize re-entry; several additional 
exceptions apply outside of PACs and Home Range Core Areas (USFS 
2004a). In PACs located in Defense Zones, mechanical-thinning 
treatments may be used to reduce fuels build-ups. In PACs located in 
Threat Zones, mechanical treatments are allowed where prescribed fire 
is not feasible and where avoiding PACs would significantly compromise 
the fire-fuels strategy (see USDA 2004:60). Outside of the WUIs, only 
prescribed fire may be used in PACs. The 2004 ROD mandates that PACs be 
avoided to the maximum extent possible when designing fuels treatments, 
and stipulates that, on a region-wide basis, forests will treat no more 
than 5 percent of the total PAC area per year and 10 percent of the PAC 
acres per decade. Pre-project surveys are conducted in areas of 
suitable habitat when occupancy of spotted owls is unknown and projects 
are expected by the Forest Service to reduce habitat quality, and new 
PACs are delineated when appropriate (USFS 2004a). Standards concerning 
retention of large woody debris and snags are presented above in Factor 
A.
    The 2004 SNFPA ROD provides for full implementation of the Pilot 
Project on the Lassen and Plumas national forests and the Sierraville 
District of the Tahoe National Forest. The Pilot Project was initiated 
under the Herger Feinstein Quincy Library Group Forest Recovery Act of 
1998, which required the Forest Service to conduct a pilot project to 
test and demonstrate the effectiveness of resource management 
activities on the Lassen, Plumas, and Sierraville Ranger District of 
the Tahoe National Forest. It specifically required resource management 
activities that include fuelbreak construction consisting of a 
strategic system of defensible fuel profile zones, group-selection 
harvests, and individual tree selection harvest, and a program of 
riparian management and riparian restoration projects. One of

[[Page 29904]]

the key requirements of the HFQLG Act is to convene an independent 
scientific panel to prepare a final report evaluating whether, and to 
what extent, implementation of the pilot project achieved its goals, in 
particular improving ecological health and community stability. The 
Forest Service completed a ROD on the FSEIS of the Pilot Project in 
August, 1999 (USFS 1999). In February, 2003, the Pilot Project was 
extended until the end of fiscal year 2009 (USFS 2004c), and upon 
conclusion of the Pilot Project, management activities will be guided 
by the SNFPA. Within the Pilot Project area, all fuels-reduction and 
timber-harvest activities are prohibited within the 411 spotted owl 
habitat areas (that are 405 ha (1,000 ac) in size) and PACs (that are 
121 ha (300 ac) in size) contained within those habitat areas (USFS 
2004a). Individual-tree selection and group-selection harvests are not 
permitted in late-successional old-growth forests (CWHR classes 5M, 5D, 
and 6), and fuels-reduction activities are designed to avoid such 
forests; however, construction of Defensible Fuel Profile Zones is 
allowed when needed. The national forest lands outside of PACs and 
spotted owl habitat areas are available to vegetation- and fuels-
management activities, including group-selection and individual-tree 
selection harvests. Standards and guidelines for all treatment areas 
direct that trees greater than 76.2 cm (30 in) dbh be retained, with 
exceptions for operability. Suitable nesting habitat (CWHR 5M, 5D, 6) 
is managed in Defensible Fuel Profile Zones to provide for at least 40 
percent canopy cover, retain all trees greater than 76.2 cm (30 in) dbh 
and at least 40 percent of the basal area (generally in the largest 
trees). Within Defensible Fuel Profile Zones, direction also provides 
for retention of at least 40 percent canopy cover and at least 40 
percent of the pre-existing basal area (in CWHR 5M, 5D, and 6 stands), 
or retention of at least 30 percent existing basal area (in CWHR 4M and 
4D stands). Within areas thinned using individual-tree selection, 
direction provides for retention of at least 50 percent canopy cover 
with exceptions to a minimum of 40 percent canopy cover (averaged 
within the treatment), and avoidance of greater than a 30 percent 
reduction in canopy cover, along with retention of at least 40 percent 
of the existing basal area (in CWHR 4D, 4M, 5D, 5M, and 6 stands). In 
eastside-pine forest types, direction specifies that projects be 
designed to retain at least 30 percent of the existing basal area. In 
addition, there are retention requirements for downed woody material 
within the project area.
    Regulations specific to national forests in southern California. 
The national forests in southern California (Los Padres, Angeles, San 
Bernardino, and Cleveland) have LMPs that are united by a common 
vision, common design criteria, and a common Final EIS (USFS 2005a; 
2005b). The LMPs for the four forests are programmatic documents that 
leave all specific design decisions and analyses to project-level plans 
(USFS 2005a-f). Part Three (Design Criteria) of the LMP (USFS 2005b) 
also refers to auxiliary documents and agreements, such as conservation 
strategies, that provide additional guidance for management actions. In 
this LMP (USFS 2005b), design criteria that could provide some 
protection for spotted owls include the following standards that apply 
to all four forests. Currently no land is identified as suitable for 
timber sale production; therefore, timber harvest may only occur to 
meet wildlife, fuels, fire, watershed, or other needs. In the mixed 
conifer-yellow pine, closed-cone conifer, big-cone Douglas-fir and 
canyon oak, and coast redwood habitat types that are used by spotted 
owls, the maximum size-openings allowed for silvicultural systems and 
fuels treatments are 0.1 to 1.2 ha (0.25 to 3 ac). Even-aged management 
is not allowed, except in closed-cone forests when justified. Uneven-
aged group selection, uneven-aged single-tree selection, mechanical 
thinning, and prescribed-fire thinning are all acceptable in mixed-
conifer-yellow-pine forests, while both mechanical and prescribed-fire 
thinning are acceptable in closed-cone forests. All the vegetation-
management practices listed (except even-aged management) are 
permissible, when justified, in the above habitat types.
    The new LMPs provide for designation of WUIs, as described above 
for the Sierra Nevada national forests, except that criteria specify 
that WUI Threat Zone boundaries may extend well beyond 2 km (1.25 mi) 
where fire history, local fuel conditions, etc., warrant extensions. 
The LMPs provide specific direction to consider ``species guidance 
documents'' when occupied or suitable habitat of threatened, 
endangered, candidate, or sensitive species is present on project sites 
(USFS 2005b). Direction specifies that short-term adverse impacts to 
species, including threatened, endangered, and proposed species will be 
accepted if such impacts will be compensated by accrual of long-term 
habitat benefits to such species (USFS 2005b). This LMP provides 
retention standards of a minimum of six downed logs and 10 to 15 hard 
snags per 2 ha (5 ac) where available (USFS 2005b). Specific protection 
for the spotted owl is provided to protect all spotted owl territories 
identified in the Statewide CDFG database (numbered owl territories) 
and new territories that meet state criteria by maintaining or 
enhancing habitat conditions over the long term to the greatest extent 
practicable, while protecting life and property (USFS 2005b). Other 
protective standards for the spotted owl include limited operating 
periods within 0.4 km (0.25 mi) of occupied territory-centers and nest 
sites during the breeding period (with exceptions for existing uses). 
The LMP allows the loss of spotted owl habitat to development (e.g., 
new campgrounds, buildings) that is needed for compelling reasons, but 
provides for mitigation measures of up to two-to-one for spotted owl 
habitat that is lost. Preferred areas for mitigation are within the 
forest where the impacts occurred (USFS 2005b). Where fuels and 
vegetation management are taking place, spotted owl occupancy and 
productivity are to be monitored during planning, implementation, and 
for at least 2 years after treatment in order to assess effects to owls 
(USFS 2004b).
    In southern California, the Conservation Strategy for the 
California Spotted Owl (USFS 2004b) and the LMP (USFS 2005b) outline 
the management of spotted owl habitat in the Los Padres, Angeles, San 
Bernardino, and Cleveland national forests. Guidelines recommend 
identifying 121-ha (300-ac) PACs containing the best habitat within 2.4 
km (1.5 mi) of nests or territory centers, and then identifying home 
range cores by adding to the PAC 121 ha (300 ac) of the best habitat 
within the same radius. Recommended restrictions include: Treatments 
within 0.4 km (0.25 mi) of a nest site or territory-center may not be 
conducted during the nesting season; treatments in PACs and home range 
cores are to be designed with the primary goal of improving spotted owl 
habitat, and are to retain existing overstory and midstory canopy cover 
when possible; fuels treatments are to leave all live trees greater 
than 61 cm (24 in) dbh; and fuels treatments in PACs are to be limited 
to no more than 5 percent of the PAC acreage in a given mountain range 
per year and 25 percent of the mountain range PAC acreage per decade 
(USFS 2004b). In addition, in the 12-24 ha (30-60 ac) of forest 
immediately surrounding nest stands, no treatments are permitted in the

[[Page 29905]]

Threat Zone, and treatments are avoided when possible in the Defense 
Zone (USFS 2004b). The 2005 San Bernardino National Forest LMP directs 
the forest to harvest wood products including saw timber, house logs, 
and utility poles as a by-product of ecosystem management, healthy 
forest restoration, fuels management, and/or community protection 
projects (USFS 2005c). The other southern California plans provide no 
direction for saw timber products (USFS 2005d, e, f).
State Regulations
    The petition states that the California State Forest Practices Code 
provides almost no specific protections for the spotted owl or its 
habitat. Below, we describe that, although there are no State 
Regulations providing specific protections to the spotted owl, there 
are some protections afforded to the spotted owl and its habitat 
through State laws and regulations.
    State regulatory mechanisms that provide some protection for the 
California spotted owl and its habitat include the California Fish and 
Game Code (14 C.C.R Sec.  1 et seq.), the California Environmental 
Quality Act (CEQA) (Pub. Resources Code Sec.  21000 et seq.), and the 
California Forest Practice Rules (14 C.C.R. Sec.  895 et seq.). The 
State of California, in Section 3503.5 of the California Fish and Game 
Code (CDFG 2002), provides that it is unlawful to take, possess, or 
destroy any birds in the order Strigiformes (owls) or to take, possess, 
or destroy their nests or eggs. This restriction applies only to 
individual owls, their nests and eggs, and does not place restrictions 
on inactive nests or habitats used by spotted owls. While the 
California spotted owl is not listed under the California Endangered 
Species Act and thus does not receive protections available under that 
statutory provision, the prohibitions against take of owls in the 
California Fish and Game Code (see above) are similar to the section 9 
protections provided by a listing under the ESA.
    CDFG identified the California spotted owl as a ``species of 
special concern'' (CDFG 1978). This status applies to animals that are 
not listed under the Federal Endangered Species Act or the California 
Endangered Species Act but are judged to be vulnerable to extinction. 
The intent of the designation is to obtain special consideration for 
the species in the project-planning process and to focus attention on 
the species to avert the need for listing under either State or Federal 
laws.
    Local land-use processes and ordinances are subject to CEQA, which 
requires disclosure of potential environmental impacts of public or 
private projects carried out or authorized by all non-Federal agencies 
in California. CEQA regulations were described in the 2003 finding (68 
FR 7580) and are incorporated by reference. According to a 
representative from CDFG, the California spotted owl likely meets the 
criteria for being a rare species under CEQA (Esther Burkett, CDFG in 
litt. 2006). And CEQA gives additional protections to rare species, 
CDFG could recommend to CDFG that certain mitigation actions be 
incorporated into a THP that impacts the spotted owl. Because FPRs are 
a substitute for CEQA, this process technically takes place through the 
FPRs, which are discussed below.
    As previously mentioned, logging activities on private and State 
forestlands in California are regulated through a process that is a 
substitute for 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 FPRs (CDF 2005). CDF has 
discretionary authority to interpret, implement, and enforce the FPRs.
    Forest management is conducted through development of THPs and Non-
industrial Timber Management Plans that are approved by the State. The 
FPRs require the registered professional forester preparing a THP to 
select silvicultural systems that achieve a maximum sustained 
production (MSP) of high-quality timber products while giving 
consideration to values relating to recreation, watershed, wildlife, 
range, forage, fisheries, regional economic vitality, employment, and 
aesthetic enjoyment (CDF 2005 Sec.  933.11). Foresters may achieve MSP 
of high-quality timber products in a THP by several means, including 
the development of a Sustained Yield Plan (SYP) (``Option B'') or by 
using an alternative plan (``Option A'') (CDF 2005 Sec. Sec. 933.11, 
953.11). SYPs must include projections of timber growth and harvesting 
over a period of at least 100 years, assessment of watershed and 
wildlife resources, and analysis of other resource values. To the 
extent that sustained timber production, watershed impacts, and fish 
and wildlife issues are addressed in the approved SYP, these issues are 
considered to be addressed in the THP. Following approval, an SYP is in 
force for a period of no more than 10 years (CDF 2005 Sec.  Sec.  
913.11, 933.11, 953.11, 1091.1, 1091.4.5, 1091.5). SPI (1999a, b), 
Soper-Wheeler, Fruit Growers, and Collins Pine timber companies are 
achieving MSP through CDF-approved ``Option A'' Maximum Sustainable 
Production Plans, whereas W.M. Beaty and Roseburg Resources operate 
under CDF-approved ``Option B'' SYPs. The Option A Demonstration of MSP 
is a part of each THP submitted within a given assessment area. CDF 
reviews THPs and SYPs to ensure those plans, submitted by the 
Registered Professional Forester, demonstrate achievement of MSP. CDF 
invites written comments of these plans from reviewing agencies and the 
public, and considers those comments. CDF must approve each individual 
THP (William Snyder, CDF, in litt. 2006).
    The FPRs provide no specific, enforceable protections for the 
California spotted owl, because it is not listed as threatened or 
endangered under CESA or the ESA, nor is it identified by the 
California Board of Forestry as a ``sensitive species'' (CDF 2005). 
However, FPRs do protect some habitat or habitat elements used by the 
owls (Chris Browder, CDF, in litt. 2005a). Implementation of the FPRs 
focuses primarily on sustainable timber harvest with an emphasis on 
conserving fish and wildlife and their habitats. The FPRs require 
production of a THP for certain logging operations in California, as 
described above. All THPs require an assessment of cumulative impacts 
to evaluate on-site and off-site effects of proposed activities from 
the past and the reasonably foreseeable future (CDF 2005 sections 898, 
1034). This cumulative impact assessment pertains to all wildlife 
resources, including the California spotted owl. If cumulative impacts 
to the spotted owl or its habitat occur, and if CDF considers those 
impacts to be significant, then the plan proponent will have to 
mitigate such impacts to the level of insignificance or provide a 
feasible alternative, or the benefits of the unmitigated project need 
to outweigh the environmental risks of the project. THPs are to 
indicate where timber operations would have any significant adverse 
impact on the environment and, if they do have adverse impacts, they 
are to explain why alternatives or additional mitigation measures that 
would significantly reduce the impact are not feasible (CDF 2005 Sec.  
898). THPs are not approved if CDF considers the impact too great.
    FPRs include general language about reducing significant impacts to 
non-listed species (CDF 2005 Sec. Sec.  919.4, 939.4, 959.4), retention 
of snags (CDF 2005 Sec. Sec.  919.1, 939.1, 959.1), and management of 
late-succession forest stands (CDF

[[Page 29906]]

2005 Sec. Sec.  919.16, 939.16, 959.16). FPRs provide that all snags 
within the logging area be retained to provide wildlife habitat. Some 
exceptions are allowed, such as felling of snags where there is 
justification that there will not be a significant impact to wildlife, 
but snags removed under such exceptions must still be part of an 
approved THP.
    California's FPRs provide for disclosure of impacts to late-
succession forest stands in some cases. The rules require that 
information about late-succession stands be included in a THP when 
late-succession stands over 8 ha (20 ac) are proposed for harvesting 
and such harvest will ``significantly reduce the amount and 
distribution of late succession forest stands'' (CDF 2005 Sec. 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. 
The California FPRs require retention of trees within riparian buffers 
to maintain a minimum canopy cover, dependent on stream classification 
and slope. Several restrictions of even-aged regeneration harvest 
practices limit the extent and rate of even-aged regeneration harvest 
and help provide protection against fragmentation (CDF 2005 Sec. Sec.  
913.1, 933.1, 953.1) and include acreage limitations and buffers 
between logging units.
    Two changes to the California State Forest Practices Code took 
place since our February, 2003 12-month finding that may influence 
spotted owl habitat; these changes were not mentioned in the petition. 
The Fuel Hazard Reduction Emergency Rule allows emergency fuels-
reduction treatments of dead or dying trees within 0.4 km (0.25 mi) of 
``communities at risk'' as listed by the California Fire Alliance, as 
well as within 153 m (500 ft) from certain roads, permitted structures 
outside of the community areas, infrastructure facilities, and approved 
fire-suppression ridges. These treatments will target understory trees, 
and trees only less than 76 cm (30 in) dbh can be removed. We 
anticipate that few spotted owl territories will be negatively affected 
by these treatments because only dead or dying trees will be cut, most 
of the harvest will be of understory trees, and large-tree habitat 
values will be maintained in most cases. We also anticipate that 
frequencies of catastrophic wildfires in California spotted owl habitat 
will be decreased due to these treatments. As of September 26, 2005, 
the 35 notices submitted to implement the Fuel Hazard Reduction 
Emergency Rule affected a total of only 494 ha (1,220 ac) (range: 0.4 
ha (1 ac) to 75 ha (185 ac), mean 14 ha (35 ac)) (Browder in litt. 
2005). The second change, the Variable Retention Rule, provides a 
silvicultural prescription that promotes the retention of valuable 
biological structural elements and helps achieve ecological, social, 
and sustainable timber-production objectives. This Rule includes 
retention of individual trees or groups of trees to maintain structural 
diversity over the harvest unit, and of structural elements such as 
snags, down logs, and other biological legacies. We anticipate that use 
of this Rule will increase the quality and quantity of suitable spotted 
owl habitat. As of September 26, 2005, the 35 notices submitted to 
implement the Variable Retention Rule affected a total of 1,062 ha 
(2,625 ac) (range: 8 ha (20 ac) to 115 ha (284 ac), mean 30 ha (75 ac)) 
(Browder in litt. 2005b).
Summary of Factor D
    Some federal regulations afford some protection to California 
spotted owls and their habitat. Although there are many uncertainties 
concerning the effectiveness of fuels-reduction activities and their 
effects on spotted owl habitat, we anticipate that the long-term 
benefits of implementing the SNFPA and LMPs in southern California will 
benefit the spotted owl by returning areas to pre-suppression tree-
density conditions, reducing loss of suitable habitat to catastrophic 
fire and, in some areas, improving prey habitat and the ability for 
spotted owls to capture their prey in more-open stands. We anticipate 
that pre-project surveys will identify unknown spotted owl territories, 
and that delineation of new PACs, when appropriate, will protect these 
territories. Subsequent designation of new PACs based on survey 
findings (USFS 2004a) will protect spotted owls. Although prescribed 
fires and mechanical thinning will degrade or temporarily reduce the 
amount of suitable habitat in some areas, it is expected that these 
negative effects will be offset in protection of other areas from 
stand-destroying wildfires, and that spotted owls will still have 
sufficient quality and quantity of nesting, roosting, and foraging 
habitat, as well as forested areas through which they can disperse 
throughout the Sierra Nevada, for the foreseeable future.
    No State regulations specific to California spotted owls currently 
exist. However, the California Fish and Game Code regulations 
pertaining to owls provide protection similar to that provided by 
section 9 of the ESA in regard to killing of spotted owls or 
destruction of their nests or eggs. FPRs pertaining to cumulative 
impacts, watercourse protection, late-succession forest stands, and 
snag retention will provide protection to spotted owl habitats in the 
form of canopy cover, forest continuity, and some structural elements. 
As stated in Factor A, while many aspects of the protection afforded to 
the spotted owls on private lands are voluntary, companies including 
SPI are providing protections, and the Service has no indication that 
this will change in the foreseeable future. The Fuel Hazard Reduction 
Emergency Rule should benefit spotted owls by reducing fire frequency 
and intensity, and implementation of the Variable Retention Rule should 
increase the quality and quantity of suitable spotted owl habitat. 
Therefore, we believe that the best-available scientific information 
indicates that no significant or immediate threats to California 
spotted owl viability are due to the inadequacy of existing regulatory 
mechanisms.

Factor E. Other Natural or Manmade Factors Affecting the Continued 
Existence of the Species

    The petition states concern that weather poses a threat to 
California spotted owls. The best-available data are summarized below. 
Variation in survival of California spotted owls has been shown to be 
based on habitat variation, whereas variation in reproductive output 
was based equally on variations in habitat and climate (Franklin et al. 
2000). Weather conditions explain all or most of the temporal 
variations in fecundity observed in California spotted owls (North et 
al. 2000; Franklin et al. 2004; LaHaye et al. 2004) and northern 
spotted owls in northwestern California (Franklin et al. 2000). Spotted 
owls compensate for this highly variable annual reproduction with high 
annual adult survival (Franklin et al. 2000). The long-term effects of 
variations in reproductive success of spotted owls in California due to 
climate are unknown, and will require decades of study (Franklin et al. 
2000, 2004; North et al. 2000; LaHaye et al. 2004).
    We are aware of three other possible threats to the California 
spotted owl. These include climate change, water diversions, and air 
pollution. Support for these possible threats was not provided in the 
petition. We are aware of no scientific information that indicates that 
these factors constitute a threat to the continued existence of this 
species at this time.
    The petition presents concern that threats from hybridization and 
site competition with the barred owl have increased in recent years due 
to the barred owl's recent expansion farther

[[Page 29907]]

into the range of the California spotted owl. The best-available data 
are summarized below.
    During the past century, barred owls expanded their distribution 
from eastern to western North America (Mazur and James 2000), and are 
now found throughout the forests of the northern Rocky Mountains, 
southern Canada to British Columbia, and from Alaska to central 
California. Barred owls occasionally hybridize with spotted owls (Hamer 
et al. 1994; Kelly and Forsman 2004), but this behavior is considered 
to be an ``inconsequential'' phenomenon that takes place mostly when 
barred owls move into new areas, and declines as barred owls become 
more numerous and have more access to other barred owls (Kelly and 
Forsman 2004:808). Kelly and Forsman (2004) documented only 47 hybrids 
out of more than 9,000 banded northern spotted owls and barred owls in 
Oregon and Washington from 1970 to 1999. However, barred owls have 
physically attacked (Pearson and Livezey 2003) and possibly killed 
(Leskiw and Gutierrez 1998) northern spotted owls as well as negatively 
affected northern spotted owl detectability (Olson et al. 2005), site 
occupancy (Kelly et al. 2003; Pearson and Livezey 2003; Gremel 2005), 
reproduction (Olson et al. 2004), and survival (Anthony et al. 2004).
    Since our 2003 finding, the known range of barred owls has expanded 
200 miles southward in the Sierra Nevada. Two hybrid spotted/barred 
owls were documented in the Eldorado National Forest (Seamans et al. 
2005; Seamans in litt. 2005) and a male barred owl was documented in 
Kings Canyon National Park (Steger et al. in review). Barred owls have 
not been detected in the mountains of southern California. Barred owls 
moved into and increased their densities in the Sierras at much slower 
rates than they did in other parts of western North America. For 
example, in 1988, 23 years after Barred Owls were detected in 
Washington in 1965 (Rogers 1966), they were at least twice as numerous 
as northern spotted owls in the western Washington Cascades (Hamer et 
al. 1989). Similarly, in 2005, 24 years after they were first detected 
in California in 1981 (Evens and LeValley 1982), they were 
approximately four times as numerous than northern spotted owls in the 
Redwood National and State Parks (Schmidt 2005, Schmidt in litt. 2006). 
However, in 2005, numbers of barred owls were only about 2 percent of 
California spotted owl numbers in the Sierra Nevada (Service 2005). We 
have no indication that barred owls are significantly affecting spotted 
owls in the Sierras due to their low relative densities and to the 
uncertainty that they will reach high densities. Barred owls are having 
no effect on the spotted owls of southern California, and it is unknown 
whether they will expand their range to include some or all of the 
mountains of there.
    In summary, we know of no substantial information that indicates 
that climate is a threat to the continued existence of the California 
spotted owl at this time. Although barred owls may pose a substantive 
threat to California spotted owls at some point in time, they do not 
appear to pose a significant threat now or in the foreseeable future, 
to the continued existence of the California spotted owl such that it 
warrants listing.

Finding

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the California spotted owl. We reviewed the petition, 
available published and unpublished scientific and commercial 
information, and information submitted to us during the public comment 
periods 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 spotted owl experts and Federal and State resource agencies. 
On the basis of this review, we find that the listing of the California 
spotted owl is not warranted at this time because:
    (1) The best-available data indicate that California spotted owl 
populations are stationary throughout the Sierras, which contain 81% of 
known California spotted owl territories. In fact, there was no strong 
evidence for decreasing linear trends in the finite rate of population 
growth (lambda) on any of the four Sierra Nevada study areas, adult 
survival showed an increasing trend throughout the Sierras, and 
modeling of realized population change for the four Sierra Nevada study 
areas combined indicated that total spotted owl numbers did not 
decrease over time. Additionally, the best available data for southern 
California owls (the San Bernardino study area) showed that the 
population was statistically stationary.
    (2) We anticipate that planned and currently implemented fuels-
reduction activities in the Sierras and in southern California will 
have a long-term benefit to California spotted owls by reducing the 
risk of catastrophic wildfire. As stated above, a primary threat to 
spotted owls is loss of habitat and subsequent population losses of 
spotted owls due to stand-replacing fire in unnaturally dense forest 
stands (USFS 2004a; 2005a).
    (3) Although survey data for spotted owls in southern California 
are incomplete, the best-available data do not show statistically 
significant declines. Barred owls have not been detected in the 
mountains of southern California, and they have moved into the Sierras 
at much slower rates than they did in other parts of western North 
America. Moreover, numbers of barred owls are only about 2 percent of 
California spotted owl numbers in the Sierras.
    (4) The largest private landholder, SPI, offers protection of 
spotted owls on their lands (Murphy in litt. 2006). SPI conducts 
surveys for spotted owls prior to harvest, establishes 6.5-11 ha (16-28 
ac) no-cut unit buffers around each territory-center, and protects 
forest units with nesting spotted owls from harvest altogether. 
Moreover, during the next 100 years, SPI estimates that, as their 
forests mature, habitat with nest-site characteristics will more than 
double from 25 to 53 percent of all California spotted owl habitat on 
SPI land.
    In making this finding, we recognize that while statistical 
analysis show that most California spotted owl populations are 
stationary in the Sierras, there is a possibility of decline for some 
populations (e.g., Lassen Study Area and San Bernardino Study Area), 
and that the species faces threats from catastrophic fire and habitat 
modification related to reduction of the risk of catastrophic fire. We 
recognize the difficult trade-offs involving short-term risk of fuel 
treatments versus long-term benefits of those treatments in reducing 
risks and improving habitat. We recognize other current threats to the 
species, including effects of isolation of spotted owls in southern 
California and the potential spread of barred owls. We conclude that 
impacts from fires, fuels treatments, timber harvest, and other 
activities are not at a scale, magnitude, or intensity that warrants 
listing, and that the overall magnitude of threats to the California 
spotted owl does not rise to the level that requires the protections of 
the Act. We will continue to monitor the status and management of the 
species and to accept additional information and comments from all 
concerned governmental agencies, the scientific community, industry, or 
any other interested party concerning the status of this species.

References Cited

    A complete list of all references cited is available on request 
from the

[[Page 29908]]

Sacramento Fish and Wildlife Office (see ADDRESSES section, above).

Author

    The primary author of this notice is Kent Livezey, Western 
Washington Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
510 Desmond Drive SE, Lacey, Washington 98503.

Authority

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

    Dated: May 15, 2006.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 06-4695 Filed 5-23-06; 8:45 am]
BILLING CODE 4310-55-P