[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Proposed Rules]
[Pages 12067-12068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4318]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2008-0033; 92210-1117-0000-B4]
RIN 1018-AU91


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Marbled Murrelet (Brachyramphus marmoratus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; finding that the revision of critical habitat 
should not be made.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), find that 
the proposed revision of critical habitat for the marbled murrelet 
(Brachyramphus marmoratus) pursuant to the Endangered Species Act of 
1973, as amended, (Act), should not be made. On September 12, 2006, (71 
FR 53840), we proposed to revise the May 24, 1996, designation of 
critical habitat for the marbled murrelet in Washington, Oregon, and 
California (61 FR 26256). Under the proposed revision, 3,590,642 acres 
(ac) (1,363,300 hectares (ha)) were proposed as critical habitat, with 
3,368,950 ac (1,363,300 ha) of these lands proposed for exclusion under 
section 4(b)(2) of the Act. Due to uncertainties regarding Bureau of 
Land Management (BLM) revisions to its District Resource Management 
Plans in western Oregon, we have determined that it is not appropriate 
to revise the designation of critical habitat for the marbled murrelet 
at this time, as discussed below. Therefore, in accordance with the 
provisions of section 4(b)(6)(A)(i)(II) of the Act, we find that the 
proposed revision of critical habitat for the marbled murrelet should 
not be made. Accordingly, the May 24, 1996, final rule designating 
critical habitat for the marbled murrelet remains in effect (61 FR 
26256).

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, Western 
Washington Field Office, 510 Desmond Drive, SE., Suite 101, Lacey, WA 
98503-1273, telephone (360) 753-9440.

SUPPLEMENTARY INFORMATION: The marbled murrelet is a small seabird of 
the Alcidae family. The marbled murrelet's breeding range extends from 
Bristol Bay, Alaska, south to the Aleutian Archipelago, northeast to 
Cook Inlet, Kodiak Island, Kenai Peninsula and Prince William Sound, 
south along the coast through the Alexander

[[Page 12068]]

Archipelago of Alaska, British Columbia, Washington, and Oregon to 
northern Monterey Bay in central California. Birds winter throughout 
the breeding range and also occur in small numbers off southern 
California. Marbled murrelets spend most of their lives in the marine 
environment where they forage in near-shore areas and consume a 
diversity of prey species including small fish and invertebrates. In 
their terrestrial environment, the presence of platforms used for 
nesting is the most important characteristic of the species nesting 
habitat. Marbled murrelet habitat use is positively associated with the 
presence and abundance of mature and old-growth forests, large core 
areas of old-growth, low amounts of edge and fragmentation, proximity 
to the marine environment, and increasing forest age and height.
    The marbled murrelet was listed as threatened under the Act on 
October 1, 1992, (57 FR 45328), and critical habitat was designated on 
May 24, 1996 (61 FR 26256). On September 12, 2006, we proposed to 
revise the currently designated critical habitat for the marbled 
murrelet in Washington, Oregon, and California. In that proposed 
revision, we proposed to designate 3,590,642 acres (ac) (1,363,300 
hectares (ha)) as critical habitat, and to exclude 3,368,950 ac 
(1,363,300 ha) of these lands under section 4(b)(2) of the Act from the 
final designation (71 FR 53838). On June 26, 2007, we published a 
notice in the Federal Register reopening the comment period and 
announcing the availability of a draft economic analysis on the 
proposed revision (72 FR 35025). The comment period was once again 
reopened with the publication of a notice in the Federal Register on 
September 5, 2007, (72 FR 50929).

Finding

    This notice presents our finding pursuant to section 
4(b)(6)(A)(i)(II) of the Act that a final regulation to implement the 
proposed revision to murrelet critical habitat should not be made at 
this time. The basis for this finding is described below.

Background

    The Bureau of Land Management (BLM) is currently completing its 
Western Oregon Plan Revision (WOPR), which will result in revised 
Resource Management Plans for the Salem, Eugene, Coos Bay, Roseburg, 
and Medford Districts, and the Klamath Falls Resource Area of the 
Lakeview District Office. We are continuing to work cooperatively with 
the BLM as they develop their final management plan revisions. We 
recognize that the revised management plans will have significant 
effects on future conservation of the species. Due to uncertainties 
regarding these plan revisions in western Oregon, we have determined 
that it is not appropriate to revise the designation of critical 
habitat for the marbled murrelet at this time. We will continue to 
consider whether revisions of critical habitat for the marbled murrelet 
may be appropriate at some future point. Accordingly, the May 24, 1996, 
final rule designating critical habitat for the marbled murrelet 
remains in effect (61 FR 26256).
    On April 8, 2002, the American Forest Resource Council (AFRC) filed 
a lawsuit in the case of AFRC et al. v. Secretary of the Interior, Civ. 
No. 02-06087 AA (D. OR) challenging the marbled murrelet critical 
habitat designation that was made on May 24, 1996 (61 FR 26256). The 
Service entered into a settlement agreement to review the critical 
habitat designation and make any revisions it deemed appropriate, after 
a revised consideration of economic and any other relevant impacts of 
designation. Pursuant to the settlement agreement, the Service 
published a proposed revision to critical habitat for the marbled 
murrelet on September 12, 2006 (71 FR 53838), which included minor 
adjustments to the original designation and proposed several exclusions 
under section 4(b)(2) of the Act. The Service also developed an 
economic analysis that was consistent with New Mexico Cattle Growers 
Association v. USFWS, 248 F.3d 1277 (10th Cir. 2001), but because of 
the reasons discussed above, the Service will not be relying on this 
analysis to finalize critical habitat at this time. The above actions 
and the publication of this Federal Register notice complete the 
Service's obligations under the settlement agreement.
    In summary, due to the uncertainty regarding the effects of current 
BLM Resource Management Plan revisions, we find that it is not 
appropriate to revise critical habitat at this time, and therefore that 
the proposed revision of critical habitat for the marbled murrelet 
should not be made. Accordingly, the May 24, 1996, final rule 
designating critical habitat for the marbled murrelet remains in effect 
(61 FR 26256).

Author(s)

    The authors of this document are the staff of the Pacific Regional 
Office, U.S. Fish and Wildlife Service.

Authority

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

    Dated: February 27, 2008.
 Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-4318 Filed 3-5-08; 8:45 am]
BILLING CODE 4310-55-P