[Federal Register Volume 75, Number 73 (Friday, April 16, 2010)]
[Proposed Rules]
[Pages 19925-19935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8795]



[[Page 19925]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2010-0017]
[MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List a Distinct Population Segment of the Fisher in Its 
United States Northern Rocky Mountain Range as Endangered or Threatened 
with Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list a distinct population segment 
(DPS) of the fisher (Martes pennanti) in its Northern Rocky Mountain 
(NRM) range, including portions of Montana, Idaho, and Wyoming, as 
endangered or threatened and designate critical habitat under the 
Endangered Species Act of 1973, as amended (Act). Based on our review, 
we find that the petition presents substantial scientific or commercial 
information indicating that listing a DPS of fisher in the NRMs of the 
United States may be warranted. Therefore, with the publication of this 
notice, we are initiating a review of the status of the species to 
determine if listing the fisher in the NRMs of the United States is 
warranted. To ensure that this status review is complete, we are 
requesting scientific and commercial data and other information 
regarding this species or DPS. Based on the status review, we will 
issue a 12-month finding on the petition, which will address whether 
the petitioned action is warranted, as provided in section 4(b)(3)(B) 
of the Act. We will make a determination on critical habitat for this 
species if and when we initiate a listing action.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before June 15, 2010. After this 
date, you must submit information directly to the Montana Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section 
below). Please note that we may not be able to address or incorporate 
information that we receive after the above requested date.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket number FWS-R6-ES-2010-0017 and then follow the 
instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R6-ES-2010-0017; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Requested 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana 
Ecological Services Field Office, 585 Shepard Way, Helena, MT; 
telephone (406) 449-5225. If you use a telecommunications device for 
the deaf (TDD), call the Federal Information Relay Service (FIRS) at 
(800) 877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on the 
fisher from governmental agencies, Native American Tribes, the 
scientific community, industry, and any other interested parties. We 
seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends;
    (e) Past and ongoing conservation measures and programs for the 
species, its habitat, or both;
    (f) Information on the fisher species rangewide for the purpose of 
determining if the fisher in its NRM range constitutes a DPS or a 
significant portion of the range of the species; and
     (g) Differences between Canada and the United States in control of 
exploitation, management, conservation status, or regulatory mechanisms 
pertaining to the fisher and its habitat that would support the use of 
the international boundary to delimit a DPS in the NRMs.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of the species' habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
     (e) Other natural or manmade factors affecting its continued 
existence.
    Please include sufficient information with your submission (such as 
full references and page numbers) to allow us to verify any scientific 
or commercial information you include.
    If, after the status review, we determine that listing the fisher 
in the NRMs as a DPS is warranted, we will propose critical habitat 
(see definition in section 3(5)(A) of the Act), in accordance with 
section 4 of the Act, to the maximum extent prudent and determinable at 
the time we propose to list the species. Therefore, within the 
geographical range currently occupied by the fisher, we request data 
and information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species'';
    (2) Where these features are currently found; and
     (3) Whether any of these features may require special management 
considerations or protection, including managing for the potential 
effects of climate change.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' We also are seeking 
information documenting the historic range and distribution within that 
range of the fisher in Montana, Wyoming, Idaho, and other areas 
adjacent to these States, and the contiguous land areas in Canada 
including the provinces of British Columbia and Alberta. The Service 
does not designate critical habitat in areas where a species is not 
listed; however, identifying the historic distribution of fisher in 
areas contiguous with the NRMs may inform the extent and type of 
habitat that may be required for recovery. Please provide specific 
comments and information as to what, if any, critical habitat you think 
we should propose for designation if the species is proposed for 
listing, and why such habitat meets the definition of critical habitat 
in section 3 of the Act

[[Page 19926]]

and the requirements of section 4 of the Act.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
website. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding, will be available for public inspection at 
http://www.regulations.gov, or by appointment during normal business 
hours, at the U.S. Fish and Wildlife Service, Montana Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly commence a review of the status of the species, which is 
subsequently summarized in our 12-month finding.

Petition History

    On March 6, 2009, we received a petition dated February 24, 2009, 
from the Defenders of Wildlife, Center for Biological Diversity, 
Friends of the Bitterroot, and Friends of the Clearwater (petitioners) 
requesting that the fisher in the United States NRMs be considered a 
DPS and listed as endangered or threatened, and critical habitat be 
designated under the Act. The petition clearly identified itself as 
such and included the requisite identification information for the 
petitioners, as required by 50 CFR 424.14(a). In an April 9, 2009, 
letter to the petitioners, we responded that we had reviewed the 
information presented in the petition and determined that issuing an 
emergency regulation temporarily listing the species under section 
4(b)(7) of the Act was not warranted. We also stated that we could not 
address the petition further at that time because of staff and budget 
limitations. This finding addresses the petition.

Previous Federal Actions

    On June 5, 1990, we received a petition dated May 29, 1990, from 
Mr. Eric Beckwitt, Forest Issues Task Force, Sierra Biodiversity 
Project, and others requesting that the Pacific fisher (Martes pennanti 
pacifica) be listed as an endangered species in California, Oregon, and 
Washington under the Act. On January 11, 1991, we published a 90-day 
finding (56 FR 1159) indicating that the fisher in the Pacific States 
is a distinct population that is geographically isolated from 
populations in the Rocky Mountains and British Columbia and represents 
a listable entity under the Act. The finding also indicated that the 
petition had not presented substantial information indicating that a 
listing may be warranted because of a lack of information on fisher 
habitat needs, population size and trends, and demographic parameters 
(56 FR 1159).
    On December 29, 1994, we received a petition dated December 22, 
1994, from the Biodiversity Legal Foundation requesting that two fisher 
populations in the western United States, including the States of 
Washington, Oregon, California, Idaho, Montana, and Wyoming, be listed 
as threatened under the Act. Based on our review, we found that the 
petition did not present substantial information indicating that 
listing the two western United States fisher populations as a DPS was 
warranted (61 FR 8016, March 1, 1996). The best scientific evidence at 
that time indicated that the range of the fisher was contiguous across 
Canada with some areas having abundant populations, and through 
southward peninsular extensions, was contiguous with the United States 
Rocky Mountain and Pacific populations (61 FR 8016). No evidence was 
presented in the petition to support physical, physiological, 
ecological, or behavioral separations (61 FR 8016).
    On December 5, 2000, we received a petition dated November 28, 
2000, from 12 organizations, with the lead organizations identified as 
the Center for Biological Diversity and the Sierra Nevada Forest 
Protection Campaign, requesting that the West Coast DPS of the fisher, 
including portions of California, Oregon and Washington, be listed as 
endangered and critical habitat be designated under the Act. A court 
order was issued on April 4, 2003, by the U.S. District Court, Northern 
District of California, that required the Service to submit for 
publication in the Federal Register a 90-day finding on the 2000 
petition (Center for Biological Diversity, et al. v. Norton et al., No. 
C 01--2950 SC). On July 10, 2003, we published a 90-day petition 
finding that the petition provided substantial information that listing 
may be warranted and initiated a 12-month status review (68 FR 41169). 
On April 8, 2004, we published a warranted 12-month finding for listing 
of the fisher's West Coast DPS (69 FR 18770). A listing action was 
precluded by higher priorities and the West Coast DPS was added to our 
candidate species list.
    The West Coast fisher was included in the Service's candidate 
notices of review in 2005, 2006, 2007, 2008, and 2009 (70 FR 24870, May 
11, 2005; 71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 
2007; 73 FR 75176, December 10, 2008; 74 FR 57804, November 9, 2009).

Species Information

Description
    The fisher, as described by Powell (1981, p. 1), is light brown to 
dark blackish-brown, with the face, neck, and shoulders sometimes being 
slightly gray. The chest and underside often have irregular white 
patches. The fisher has a long body with short legs and a long bushy 
tail. At 3 to 6 kilograms (kg) (6.6 to 13.2 pounds (lbs)), male fishers 
weigh about twice as much as females (1.5 to 2.5 kg (3.3 to 5.5 lbs)). 
Males range in length from 90 to 120 centimeters (cm) (35 to 47 inches 
(in)), and females range from 75 to 95 cm (29 to 37 in) in length. 
Fishers may show regional variation in typical body weight. For 
example,

[[Page 19927]]

fishers in the Pacific States may weigh less than fishers in the 
eastern United States (Seglund 1995, p. 21; Dark 1997, p. 61; Aubry and 
Lewis 2003, p. 87).
Taxonomy
    We accept the characterization of the fisher as a species, Martes 
pennanti, based on the review of the systematics of the genus Martes by 
Anderson (1994, pp. 21-25). The fisher is classified in the order 
Carnivora, family Mustelidae, a family that also includes weasels, 
mink, martens, and otters (Anderson 1994, p. 14). It is a member of the 
genus Martes, subgenus Pekania, and occurs only in North America 
(Anderson 1994, pp. 22-23). Goldman (1935, p. 177) recognized three 
subspecies of fisher, although he stated they were difficult to 
distinguish: (1) Martes pennanti pennanti in the east and central 
regions; (2) M. p. columbiana in the central and northwestern regions 
that include the NRMs; and (3) M. p. pacifica in the western region. A 
subsequent analysis questioned whether there is a sufficient basis to 
support recognition of different subspecies (Hagmeier 1959, entire). 
Although subspecies taxonomy as described by Goldman (1935, p. 177) is 
often used in literature to describe or reference fisher populations in 
different regions of its range, and recent consideration of genetic 
variation indicates patterns of population subdivision similar to the 
earlier described subspecies, it is not clear whether Goldman's 
designations of subspecies are taxonomically valid (Kyle et al. 2001, 
p. 2345; Drew et al. 2003, p. 59). For the purposes of this finding, we 
are evaluating whether the petition presents substantial information 
that the fisher in the NRM qualifies as a DPS of the full species 
(i.e., M. pennanti), because that is the action requested by the 
petition.
Biology and Habitat
    Fishers are opportunistic predators primarily of snowshoe hares, 
squirrels, mice, and birds (Powell 1993, p. 18). Carrion and plant 
material (e.g., berries) also are consumed (Powell 1993, p. 18). The 
fisher is one of the few predators that kills porcupines, and porcupine 
remains have been found more often in the gastrointestinal tract and 
scat of fisher than any other predator (Powell 1993, p. 135). As 
dietary generalists, fishers tend to forage in areas where prey is both 
abundant and vulnerable to capture (Powell 1993, p. 100).
    Fishers are estimated to live up to 10 years (Arthur et al. 1992, 
p. 404; Powell et al. 2003, p. 644). Both sexes reach maturity their 
first year but may not be effective breeders until 2 years of age 
(Powell et al. 2003, p. 638). Fishers are solitary except during the 
breeding season, which is generally from late February to the middle of 
May (Wright and Coulter 1967, p. 77; Frost et al. 1997, p. 607). 
Uterine implantation of embryos occurs 10 months after copulation; 
active gestation is estimated to be between 30 and 60 days; and birth 
occurs nearly 1 year after copulation (Wright and Coulter 1967, pp. 74, 
76; Frost et al. 1997, p. 609; Powell et al. 2003, p. 639). Litter 
sizes for fishers range from one to six with a mean of two to three 
kits (Powell et al. 2003, pp. 639-640). Newborn kits are entirely 
dependent and may nurse for 10 weeks or more after birth (Powell 1993, 
p. 67). Kits develop their own home ranges by one year of age (Powell 
et al. 2003, p. 640). Populations of fisher fluctuate in size, and 
reproductive rates may vary widely from year to year in response to the 
availability of prey (Powell and Zielinski 1994, p. 43).
    Fisher home ranges vary in size across North America from 16 to 122 
square kilometers (km\2\) (4.7 to 36 square miles (mi\2\)) for males 
and from 4 to 53 km\2\ (1.2 to 15.5 mi\2\) for females (Powell and 
Zielinski 1994, p. 58; Lewis and Stinson 1998, pp. 7-8; Zielinski et 
al. 2004, p. 652). In the NRM, home ranges for males range from 
approximately 30 to 120 km\2\ (8.7 to 35 mi\2\) during winter and 
summer (Jones 1991, p. 83). Females range from 6 to 75 km\2\ (1.7 to 22 
mi\2\) during winter, with a reduction in summer from 6 to 60 km\2\ 
(1.7 to 17.5 mi\2\) (Jones 1991, p. 83). The abundance of vulnerable 
prey may play a role in home range selection (Powell and Zielinski 
1994, p. 57). Fishers exhibit territoriality with little overlap 
between members of the same sex; however, overlap between opposite 
sexes is extensive and possibly related to the density of prey (Powell 
and Zielinski 1994, p. 59).
    Fishers live in coniferous and mixed conifer and hardwood forests 
and avoid areas with little or no cover (Powell and Zielinski 1994, p. 
39). They are found commonly in mature forest cover and prefer late-
seral forests over other habitats (Powell and Zielinski 1994, p. 52). 
Riparian forests and habitat close to open water such as streams are 
important to fishers in northern California and the Rocky Mountains of 
Idaho (Buskirk and Powell 1994, p. 285). In Idaho, old-growth forests 
of grand and subalpine fir are used extensively (Jones 1991, p. 113). 
The physical structure of the forest and prey associated with forest 
structures are thought to be the critical features that explain fisher 
habitat use, rather than specific forest types (Buskirk and Powell 
1994, p. 286), and habitat use can vary by season and by activity 
(Jones 1991, p. 88). In the Rocky Mountains, fishers avoid areas of 
deep, fluffy snow and select riparian areas with relatively gentle 
slopes and dense canopy cover that may provide protection from snow 
during winter (Powell and Zielinski 1994, p. 54). Cavities and branches 
in trees, snags, stumps, rock piles, and down timber are used as 
resting sites, and large diameter live or dead trees are selected for 
natal and maternal dens (Powell and Zielinski 1994, pp. 47, 56). Powell 
and Zielinski (1994, p. 54) suggest that habitat suitable for resting 
and denning sites may be more limiting for fishers than foraging 
habitat.
    A more extensive review of fisher biology can be found in the 
Service's 12-month finding on a petition to list the West Coast DPS of 
the fisher (69 FR 18770, April 8, 2004).
Distribution
    At the time of European settlement, fishers were found in the 
forests across North America in Canada from approximately 60[deg] north 
latitude, extending south into the United States along the Appalachian, 
Pacific Coast, and NRMs (Gibilisco 1994, p. 60). In the late 1800s and 
early 1900s, fishers experienced reductions in range, decreases in 
population numbers, and local extirpations attributed to over-trapping, 
predator control, and habitat destruction in the United States, and to 
a lesser extent in Canada (Brander and Books 1973, p. 53; Douglas and 
Strickland 1987, p. 512; Powell and Zielinski 1994, p. 39). Since the 
1950s, fishers have recovered in some of the central (Minnesota, 
Wisconsin) and eastern (New England) portions of their historic range 
in the United States as a result of trapping closures, habitat 
regrowth, and reintroductions (Brander and Books 1973, pp. 53-54; 
Powell 1993, p. 80; Gibilisco 1994, p. 61; Lewis and Stinson 1998, p. 
3; Proulx et al. 2004, pp. 55-57). Fishers have not returned to the 
areas south of the Great Lakes to Appalachia. In the western range, 
fisher distribution occurs in a few disjunct and relatively small areas 
of their former range in Oregon and California, and recently 
reintroduced individuals represent the species on the Olympic Peninsula 
of Washington State (Proulx et al. 2004, p. 58; National Park Service 
2009).
    It was believed that fishers were extirpated from the NRMs of the 
United States by the 1930s (Powell and Zielinski 1994, p. 41). In five 
separate reintroduction efforts, fishers were translocated from the 
Midwest and

[[Page 19928]]

British Columbia to the NRMs between 1959 and 1991 (Vinkey et al. 2006, 
p. 268; Jones 1991, p. 1). The recent discovery of a native lineage of 
fisher coexisting with descendents of translocated individuals 
indicates that fishers in Idaho and Montana were not extirpated as 
previously thought (Drew et al. 2003, p. 57; Vinkey 2003, pp. 9, 30; 
Schwartz 2007, p. 924). Fishers are distributed in northwest and west-
central Montana and northern and north-central Idaho with rare 
detection in southwestern Idaho (Idaho Department of Fish and Game 
(IDFG) 2006, pp. 7-24; Vinkey 2003, p. 54). Snowtrack surveys have 
documented fisher in Glacier National Park in the 1980s and the Greater 
Yellowstone area in the late 1990s, but more verified records are 
needed to confirm the presence of fisher in these areas (Vinkey 2003, 
pp. 52, 60).
Population Status
    Accurate information on fisher densities and abundance outside the 
northeastern United States is limited. Estimates of fisher abundance 
and vital rates are difficult to obtain and often based on harvest 
records, trapper questionnaires, and tracking information (Douglas and 
Strickland 1987, p. 522). Populations may vary widely based on habitat 
composition and prey availability (York 1996, p. 4). In Maine, the 
density of female fishers ranged from 0.09 to 0.36 per km\2\ (0.39 
mi\2\) in summer to 0.05 to 0.12 per km\2\ (0.39 mi\2\) in winter 
(Arthur et al. 1989, pp. 674, 678). In high-quality habitats in British 
Columbia, fisher densities were between 0.01 and 0.0154 per km\2\ (0.39 
mi\2\), and the total late-winter population in the province was 
between 1,113 and 2,759 individuals (Weir 2003, p. iv). The Service's 
(2008, p. 9) review of population data from California shows recent 
densities of 0.16 fisher per km\2\ (0.39 mi\2\) in the 65-km\2\ (25.1 
mi\2\) Hoopa Valley Indian Reservation study site, and between 113 to 
147 adult female individuals in the southern Sierra Nevada Mountains. 
Little is known of the status of fishers in the Rocky Mountains. Vinkey 
(2003, p. 33) evaluated a translocation effort in the Cabinet Mountains 
of Montana in the 1990s and concluded that the population is small and 
limited in distribution, based on a small number of captures or 
detections coupled with a high proportion of recaptures. Vinkey (2003, 
p. 61) also reviewed historical records and carnivore research in 
Montana and concluded that the fisher is one of the lowest-density 
carnivores in the State. One population estimate for the Clearwater 
region of northern Idaho is possibly 0.04 fishers per km\2\ (0.39 
mi\2\) in an 80 km by 16 km (50 mi by 10 mi) corridor in the Lochsa 
study area (Lucas 2006, p. 85).

Evaluation of Listable Entities

    Under section 3(16) of the Act, we may consider for listing any 
species, including subspecies, of fish, wildlife, or plants, or any DPS 
of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 
1532(16)). Such entities are considered eligible for listing under the 
Act (and, therefore, are referred to as listable entities) should we 
determine that they meet the definition of an endangered or threatened 
species. In this case, the petitioners have requested that the fisher 
in the United States NRMs be considered a DPS and listed as endangered 
or threatened under the Act.

Distinct Vertebrate Population Segment

    The Service and the National Marine Fisheries Service (National 
Oceanic and Atmospheric Administration--Fisheries) developed a joint 
policy that addresses the recognition of DPSes of vertebrate species 
for potential listing actions (61 FR 4722, February 7, 1996). Under the 
DPS policy, two basic elements are considered in the decision regarding 
the establishment of a population of a vertebrate species as a possible 
DPS. We must first determine whether the population qualifies as a DPS; 
this requires a finding that the population is both: (1) Discrete in 
relation to the remainder of the species to which it belongs; and (2) 
biologically and ecologically significant to the species to which it 
belongs. If the population meets the first two criteria under the DPS 
policy, we then proceed to the third element in the process, which is 
to evaluate the population segment's conservation status in relation to 
the Act's standards for listing as an endangered or threatened species. 
These three elements are applied similarly for additions to or removals 
from the Federal Lists of Endangered and Threatened Wildlife and 
Plants.
    Our evaluation of significance is made in light of congressional 
guidance (see Senate Report 151, 96th Congress, 1st Session) that the 
authority to list DPSes be used ``sparingly'' while encouraging the 
conservation of genetic diversity. If we determine that a population 
segment meets the discreteness and significance standards, then the 
level of threat to that population segment is evaluated based on the 
five listing factors established by the Act to determine whether 
listing the DPS as either endangered or threatened is warranted.
Discreteness
    Under our DPS policy, a population segment of a vertebrate species 
may be considered discrete if it satisfies either one of the following 
two conditions: (1) It is markedly separated from other populations of 
the same taxon as a consequence of physical, physiological, ecological, 
or behavioral factors (quantitative measures of genetic or 
morphological discontinuity may provide evidence of this separation); 
or (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act (61 FR 4722).
    Substantial information is presented in the petition and other 
documents in our files indicating that the fishers in the NRMs may be 
geographically separate from other fisher populations. The range of the 
fisher in the West Coast Range of Washington, Oregon, and California is 
considered separated from the NRMs by natural physical barriers, 
including the nonforested high desert areas of the Great Basin in 
Nevada and eastern Oregon and the Okanogan Valley in eastern 
Washington, major highways, urban and rural open-canopied areas, and 
agricultural development (69 FR 18770). Historic and recent range maps 
show no connection in the contiguous United States between occurrences 
in the NRMs and the fisher populations in the Midwest and Great Lakes 
area (Hagmeier 1956, p. 151; Douglas and Strickland 1987, p. 313; 
Gibilisco 1994, p. 64; Proulx et al. 2004, p. 57).
    Prior to 2003, fisher range maps depicted the NRM region 
interconnected with British Columbia (Gibilisco 1994, p. 64; Lewis and 
Stinson 1998, p. 3). An analysis of fisher habitat suitability and 
harvest and survey information indicates that the southernmost 
extension of fishers in British Columbia likely occurs in the central 
part of the province over 200 km (124 mi) north of the international 
border, and that fisher populations in Canada are no longer contiguous 
with fisher populations in the western United States (Weir 2003, pp. 
17-19). Although the fisher distribution has been adjusted to reflect 
the more recent understanding of fisher habitat ecology, highly 
fragmented and low suitability fisher habitat does exist in the 
Kootenay region of southeastern British Columbia between the NRMs of 
the United States and central British Columbia (Weir 2003, p. 18). 
Fishers were considered rare or extirpated from the Kootenay

[[Page 19929]]

region in the mid-1990s, prompting a reintroduction effort to expand 
the presence of the species in British Columbia and ``to connect 
isolated US populations with healthy and increasing populations in 
central B.C.'' (Fontana et al. 1999, p. 1). Fishers released in Canada 
as part of the relocation program were using habitats in Montana 
(Fontana et al. 1999, p. 18). Weir et al. (2003, pp. 19-20) considered 
the possibility, though unlikely, that the Cabinet Mountains in Montana 
were the source of two fishers detected in the Kootenay area in 
southeast British Columbia. A reintroduced fisher population was 
thought to persist in southeast British Columbia, but the observed 
survival rate of translocated adults and the few cases of confirmed 
reproduction in the assessment area were not likely sufficient for the 
population to expand and become self-sustaining (Weir et al. 2003, pp. 
24-25).
    We have no information indicating that an active connection was 
established between central British Columbia and the United States as a 
result of the translocation efforts, or that fishers in the NRMs of 
Montana and Idaho are functionally connected to larger population areas 
in Canada. We seek additional information for our status review to 
clarify the geographic separation of the fisher in the NRMs of the 
United States from other areas of fisher occupation including Canada, 
and to clarify a geographical delineation of a NRM DPS.
    Substantial information presented in the petition and documents in 
our files may support discreteness of fishers in the NRMs based on the 
presence of a unique genetic signature consistent with isolation and a 
relic native population (Drew et al. 2003, p. 59; Vinkey et al. 2006, 
p. 267; Schwartz 2007, p. 924). Descendants of native fisher found in 
Idaho and west-central Montana have unique haplotypes of the 
mitochondrial genome that are found nowhere else in fisher populations 
(Drew et al. 2003, p. 59; Vinkey et al. 2006, p. 269; Schwartz 2007, p. 
922). Populations in the NRMs also demonstrate a genetic legacy 
consistent with previous translocations from the mid-western United 
States and British Columbia (Drew et al. 2003, p. 59; Vinkey et al. 
2006, pp. 268-269).
    The petition states that the international boundary between the 
United States and Canada contributes to the discreteness of the NRM 
fisher population based on significant differences in management of 
fishers and habitat. However, the petition offers no example of a 
specific law, regulation, policy, population status, or management 
prescription that would support the assertion of significant 
differences. For us to determine that the international boundary serves 
as a basis for discreteness, we need some evidence that differences in 
control of exploitation, management of habitat, conservation status, or 
regulatory mechanisms exist between the two countries that are 
significant in light of section 4(a)(1)(D) of the Act. The petition did 
not provide any information that such differences exist.
    Information in our files indicates that Canada does not have a 
national law governing management of national lands like the United 
States has in the National Forest Management Act (NFMA) of 1976, as 
amended (16 U.S.C. 1600-1614). A substantial portion of the occupied 
fisher range in Montana and Idaho is managed under the NFMA. However, 
we do not have any information indicating that the differences in 
management between the United States and Canada are significant in 
light of section 4(a)(1)(D) of the Act. If anything, fishers would have 
more protection in the United States due to the NFMA. We have no 
information that fishers are impacted by either the lack of an 
overarching forest management regulatory mechanism in Canada, or the 
application of the NFMA in the United States NRMs.
    Information in the petition and our files indicates that legal 
trapping for fishers occurs in both British Columbia and the NRM. In 
the United States, legal trapping occurs only in Montana; however, we 
are analyzing the NRMs as a DPS, not as individual States. The petition 
did not present any information, nor do we have any in our files, that 
distinguishes differences in trapping regulations or harvest between 
the United States and Canada, and the application to discreteness. The 
applicability of the international boundary to the discreteness of a 
NRM DPS will be investigated further during the species status review.
    In summary, the petition and other documents in our files present 
substantial information indicating that the NRM population of fisher in 
the United States may meet at least one of the criteria for 
discreteness under the DPS policy based on marked physical separateness 
and genetic distinctness.
Significance
    If a population segment is considered discrete under one or more of 
the conditions described in the Service's DPS policy, its biological 
and ecological significance will be considered in light of 
congressional guidance that the authority to list DPSes be used 
``sparingly'' while encouraging the conservation of genetic diversity 
(see Senate Report 151, 96th Congress, 1st Session). In making this 
determination, we consider available scientific evidence of the 
discrete population segment's importance to the taxon to which it 
belongs. Since precise circumstances are likely to vary considerably 
from case to case, the DPS policy does not describe all the classes of 
information that might be used in determining the biological and 
ecological importance of a discrete population. However, the DPS policy 
describes four possible classes of information that provide evidence of 
a discrete population segment's biological and ecological importance to 
the taxon to which it belongs. As specified in the DPS policy (61 FR 
4722), this consideration of the population segment's significance may 
include, but is not limited to, the following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique to the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or
     (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    A population segment needs to satisfy only one of these conditions 
to be considered significant. Furthermore, other information may be 
used as appropriate to provide evidence for significance.
    The petition presents three points supporting the significance of a 
DPS in the NRMs of the United States: (1) The NRM region of the United 
States is ecologically unique because it is situated in a unique 
ecoregion as described by Bailey (1996, entire) and exhibits 
significant ecological differences from the closest fisher habitat in 
central British Columbia; (2) the NRM region represents a significant 
part of the range based on representation and geographic size; and (3) 
the fisher population in north-central Idaho and west-central Montana 
share a genetic haplotype unique to the taxon.
    The petitioners claim that fishers in the NRMs of the United States 
exist in an unusual or unique ecological setting based on Bailey's 
(1996, entire) ecoregion delineations and descriptions of fisher study 
sites in British Columbia and Idaho (Jones 1991, pp. 3-4; Weir 1995, 
pp. 20-26). Bailey's ecoregion

[[Page 19930]]

classification is a descriptive four-level hierarchy differentiating 
geographic areas based on climate, vegetation (species dominants) or 
natural land covers, and soils. It is one of several classification 
systems used in the past and present by government and private land 
managers to inform management decisions.
    While it appears that the known fisher distribution in the NRMs of 
the United States is in a different ecoregion classification than the 
closest population concentration in Canada (Bailey 1996, map), the 
significance of this difference to the taxon is not explained in the 
petition. Descriptions of fisher habitat in Idaho (Jones 1991, pp. 3-4) 
and British Columbia (Weir 1995, pp. 20-26) show considerable 
similarities in vegetation. Differences are seen in precipitation and 
temperature between the Idaho and British Columbia sites, but climate 
conditions also vary within the individual study sites (Weir 1995, pp. 
20-26). It is not clear if the descriptions of these small geographic 
areas are representative of the range of fisher in either British 
Columbia or the NRMs in the United States.
    The petitioners express support for uniqueness based on general 
descriptions of climate and vegetation. Information in the petition and 
in our files indicates that fishers inhabit various types of late-
successional coniferous forests throughout most of their range, and the 
dominant tree species, which can be influenced by climate and soils, 
may vary from region to region (Powell and Zielinski 1994, p. 52). 
Forest structure and prey availability are more important habitat 
selection criteria for fishers than the type of forest, tree species, 
or general climate characteristics (Buskirk and Powell 1994, pp. 286, 
295; Weir 1995, p. 19). While the NRM ecoregion may be different from 
other ecoregions, we did not find any evidence in the petition or in 
our files indicating that the difference in classification is 
significant to the fisher.
    Information in the petition and in our files supports the 
petitioner's assertion that a loss of the fisher in the NRMs would 
result in a significant gap in the range of the fisher. The fisher is 
only found in Canada and the United States. The distribution of fisher 
in the United States occurred historically in four peninsular 
extensions from Canada and constituted the southern-most distribution 
of fisher in North America. The connection with Canada is now lost, or 
is highly fragmented, in the western United States. Fishers in the NRMs 
of the western United States are separate from the eastern United 
States populations by over 1,280 km (800 mi) of nonforested habitat, 
lands converted for agriculture, and urban development. In the western 
United States, the fisher's distribution occurs in the forested areas 
of the NRMs in northern Idaho and western Montana, and a few disjunct 
and relatively small areas of the species' former West Coast range in 
Oregon, Washington, and California. The West Coast fishers are 
considered separated from the NRMs by natural physical barriers as well 
as other physical impediments such as major highways, urban and rural 
open-canopied areas, and agricultural development. The extirpation of 
fishers in the NRMs would be the loss of one of the four existing 
southern-most extensions of the taxon's range, and would result in a 
significant gap in the range of the fisher.
    The fisher population in the NRMs of the United States exhibits the 
genetic legacy of translocations from British Columbia and the Midwest 
as well as a relic native population once thought extirpated. The loss 
of the fisher in the NRMs could result in the loss of unique haplotypes 
of the mitochondrial genome associated with the native population 
described as genetically distinct from fisher in the remainder of North 
America (Drew et al. 2003, p. 57; Vinkey et al. 2006, p. 269; Schwartz 
2007, p. 924).
    In summary, information in the petition and our files may support 
the significance of a DPS in the NRMs of the United States based on 
evidence of genetic distinctness and evidence that loss of the DPS may 
result in a significant gap in the range of the taxon.
Summary
    On the basis of the preceding discussion, we believe that the 
petition and other documents present substantial information that the 
NRM population of the fisher in the United States may be both discrete 
and significant within the meaning of our DPS policy, and therefore may 
constitute a DPS. A discussion of the potential DPS's conservation 
status in relation to the Act's standards for listing as an endangered 
or threatened species follows.

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. A species may be determined to be an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the fisher in the NRMs, as presented in the 
petition and other information available in our files, is substantial, 
thereby indicating that the petitioned action may be warranted. Our 
evaluation of this information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat

Information Provided in the Petition
    The petitioners state that fishers are threatened by habitat loss 
and destruction from logging and roads (69 FR 18770; Douglas and 
Strickland 1987, p. 518; Freel 1991, p. 2; Jones 1991, pp. 116-117; 
Aubry and Houston 1992, p. 75; Buskirk 1992, p. 318; Buck et al. 1994, 
p. 375; Powell and Zielinski 1994, p. 64; IDFG 1995, p. 10; Carroll et 
al. 1999, p. 1357), and habitat loss and destruction is the primary 
threat to fishers in the NRMs. The petitioners assert that fishers are 
at risk from naturally occurring and climate change-accelerated fire, 
insects, and disease outbreaks (Ridler 2008); and they assert, without 
documentation, that fishers are especially vulnerable to habitat 
alteration because past logging reduced their range and habitat to a 
point that any additional loss of habitat from human action threatens 
the fishers' persistence. The petition states that the majority of 
fisher habitat in the NRMs is within seven national forests where an 
average of 8,000 hectares (ha) (20,000 acres (ac)) of forest was logged 
annually between 2002 and 2006 (U.S. Department of Agriculture (USDA) 
2008, entire). An additional average 28,000 ha (70,000 ac) was lost 
annually to fire, insects, and disease during that period (USDA 2008, 
entire). Approximately 1.3 million ha (3.2 million ac) of national 
forest land was logged or experienced fire or disease between 1945 and 
2006 (USDA 2008, entire). Other forested lands are managed for timber 
revenue by private corporations, the States of Montana and Idaho, and 
Tribal governments; harvest of at least some of these lands is

[[Page 19931]]

expected in the future (Idaho Department of Lands 2007, entire; Montana 
Department of Natural Resources 2008, entire; Plum Creek 2009, entire; 
Potlatch 2008, entire; Ridler 2008, entire).
    The petition lists a wide range of impacts that could deteriorate 
or cause direct loss of fisher habitats. Silviculture treatments may 
alter structural and vegetation diversity by a number of mechanisms and 
reduce cover and den and resting sites (Douglas and Strickland 1987, p. 
518; Aubry and Houston 1992, p. 75; Buskirk 1992, p. 318; Buck et al. 
1994, p. 375; Carroll et al. 1999, p. 1375). Roads directly remove 
habitat, cause displacement, inhibit dispersal, and contribute to 
increased fisher mortality, fragmentation, and isolation (Freel 1991, 
p. 2; Jones 1991, pp. 116-117; Powell and Zielinski 1994, p. 62; IDFG 
1995, p. 10; Ruediger et al. 1999, pp. 1-2). The petition states that 
forests across the region have high incidence and intensity of fire, 
insects, and disease outbreaks due to drought and higher temperatures 
related to climate change; fisher habitat is further reduced by the 
removal of timber and wildland-urban interface treatments to reduce 
fire risk.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in the petition and in our files indicates that past 
habitat loss due to logging, fire, and clearing of land for agriculture 
and settlement together with trapping contributed to the near 
extermination of fisher populations over much of their former range in 
the United States and much of eastern Canada by the early 1900s (Powell 
and Zielinski 1994, p. 41; Douglas and Strickland 1987, p. 512). There 
are few reports quantifying habitat loss in specific locations, but in 
1984, it was estimated that fishers occupied over 4.3 million km\2\ 
(1.6 million mi\2\) in Canada and the United States, reduced from 6.4 
million km\2\ (2.5 million mi\2\) of occupied range before the 
settlement of North American by Europeans (Douglas and Strickland 1987, 
p. 513). Land clearing and frequent fires had reduced the forested area 
in the northeastern United States by nearly 50 percent by the mid-
1800s, and rangewide habitat loss increased as human settlement moved 
west (Powell and Zielinksi 1994, p. 41).
    The fisher in the NRMs was considered extirpated by the 1930s 
(Powell and Zielinski 1994, p. 41). Presently, the fisher 
representation in Montana and Idaho includes a recently discovered 
remnant native population and descendants of fishers relocated from the 
Midwest and British Columbia in the 1960s and 1990s (Drew et al. 2003, 
p. 57; Vinkey 2003, pp. 9, 30; Schwartz 2007, p. 924). It is not clear 
from the limited information available to us during this 90-day review 
what role past land uses played in the near extirpation of the fisher 
in the NRMs by 1930. We do know that extensive forestry drastically 
reduced the amount of old-growth or late-successional forests in the 
NRMs, especially on private lands in the lower-elevation commercial 
timber zones (Habeck 1988, p. 202). National forest lands that comprise 
approximately 6 million ha (15 million ac) in the NRMs have retained 
more area of mature forest than private commercial lands but have 
experienced close to 1 million ha (2.5 million ac) of silviculture 
removal--nearly a third by clear-cutting methods--just in the past 65 
years (Habeck 1988, p. 202; USDA 2008, entire).
    The legacy of timber harvest, combined with continued commercial 
forestry and other factors, may limit the capacity of the NRM area to 
support fishers today. Fishers rely on large areas of primarily late-
successional coniferous forest with fairly dense canopies and large 
trees, snags, and down logs for denning and resting; vegetated 
understory and large woody debris appear important for prey species 
(Powell and Zielinski 1994, p. 52). These mature forest characteristics 
may take at least 120 years or more to develop (Green et al. 1992, p. 
6). Fishers evolved in forests where fire and windthrow were common, 
and small silviculture treatments or harvest may resemble the natural 
disturbances and the succession that follows (Powell and Zielinski 
1994, p. 64). Therefore, the effects of present-day timber harvest and 
management of forests for harvest on the capacity of the NRMs to 
support fishers may be influenced by multiple factors, including the 
location, scale, and juxtaposition of treatments to previous 
disturbances, and the suitability of the location to provide fisher 
habitat under natural conditions.
    In the NRMs, fishers forage in young to medium-age stands adjacent 
to larger patches of mature forest (Jones 1991, p. 92). However, large 
clear-cuts or numerous adjacent smaller cuts, and open areas such as 
roads, combined with the loss of large patches of late-successional 
conifer habitat, may alter suitability and fragment habitat and limit 
fisher population size (Powell and Zielinski 1994, pp. 42, 64). Where 
the key habitat elements are patchy or limited in distribution, fishers 
are forced to range over larger areas. Fishers in Montana and Idaho 
have the largest recorded home ranges of the United States' fishers, 
possibly influenced by the fragmentation or low quality of forest 
resources (Powell and Zielinski 1994, pp. 58, 60).
    The effects of habitat loss and fragmentation may be emphasized by 
territorial exclusion between members of the same sex, which increases 
the space needed to support viable populations (Powell and Zielinski 
1994, p. 59). In the NRMs, fishers may be more vulnerable to habitat 
changes caused by fire, drought, and insect infestation even within 
historical variability due to diminished mature late-seral forest 
structures at a landscape level.
    The loss of older forest and increased fragmentation from human 
activities has likely reduced the capacity of the NRMs to support 
fishers. To our knowledge, there is no comprehensive mapping of fisher 
habitat for the NRMs. Consequently, it is not clear how current 
management of public and private forest lands is limiting further loss 
of habitat suitability on a landscape scale. However, we will seek 
additional information regarding forest management during the status 
review process.
    From information in the petition and readily available in our 
files, private or State trust lands in Northern Montana and Idaho are 
managed for commercial wood production and timber harvest, which may 
prevent succession to the mature forest stages preferred by fishers 
(Idaho Department of Lands 2007, p. 22; Montana Department of Natural 
Resources 2008, entire; Plum Creek 2009, entire; Ridler 2008, entire). 
Timber harvest is expected to continue on commercial lands; future 
increases in harvest and reduction of the harvest rotation period are 
expected on Idaho State trust lands (Ridler 2008, p. 2). We expect 
timber harvest to continue on Federal lands in the future based on 
mandates of the Multiple-Use and Sustainable Yield Act (16 U.S.C. 528 
et seq.) and the NFMA (16 U.S.C. 1600 et seq.). The U.S. Forest Service 
(USFS) has managed for old-growth forest under forest plan direction 
since the 1990s (Green et al. 1992, p. 1) and considers the fisher a 
sensitive status species (Macfarlane 1994, p. 177); however, no 
information is provided in the petition and we have no information 
available in our files indicating the effectiveness of this management 
in protecting or augmenting old-growth forest types for fisher habitat.
    The real estate value of commercial timber lands is spurring a 
transition to

[[Page 19932]]

residential and commercial development in areas of western Montana 
(Stromnes 2002, entire; McQuillan 2007, entire). For example, Plum 
Creek Timber Company, whose holdings are concentrated in northwest and 
north-central Montana and coincide with areas of verified fisher 
distribution (Vinkey 2003, p. 54), expects to develop 8,000 to 16,000 
ha (20,000 to 40,000 ac) over the next 10 to 15 years in addition to 
over 14,000 ha (35,000 ac) already sold (McQuillan 2007, entire). The 
company's own land development subsidiary describes the development of 
company lands, once held for timber production, as residential lots 
ranging in size from 2 to 4 ha (5 to 10 ac) (McQuillan 2007, entire). 
Development in forested environments may increase roads and remove 
additional forest vegetation structure or prey habitat in order to 
maintain defensible space around structures (wildlife-urban interface); 
however, although foraging and resting habitat may be removed by road 
construction, fishers do not appear to avoid the road itself (Lewis and 
Stinson 1998, p. 7; Schwartz et al. 2006, p. 6).
    The economic recession starting in late 2008 may have an impact on 
commercial timber harvest and the conversion of timber lands to 
residential development; however, no information was included in the 
petition and we have no information in our files to evaluate the 
effects of the economic downturn on these activities at this time.
    Silviculture timber removals on national forest lands in the NRMs 
have trended downward over the past decade; however, the forested areas 
affected by fire have increased to over 85,600 ha (214,000 ac) in the 
past decade compared to less than 4,000 ha (10,000 ac) affected between 
1945 and 1997 (USDA 2008, entire). This increase could reflect an 
increase in environmental conditions that promote fire, such as drought 
and disease, or management of fire as a natural force in shaping forest 
composition and distribution.
    The petitioners do not present specific information about how 
global climate change has affected or is likely to affect the fisher in 
the NRMs in a way that differs from past climate variability. Warming 
of the climate globally is considered unequivocal (Intergovernmental 
Panel on Climate Change 2007, p. 2); however, predicting local climate 
trends and determining how those trends will affect certain species is 
uncertain. Furthermore, we do not have information indicating how the 
fisher might behaviorally respond to any climate changes. Without 
additional information, the effect of long-term climate change on the 
fisher is unclear and could result in either a net positive or negative 
effect on the species. However, we will seek additional information 
regarding the potential effects of climate change during the status 
review process.
Summary of Factor A
    In summary, based on our evaluation of the information presented in 
the petition and in our files, we determine that the petition presents 
substantial information indicating that listing the fisher in the NRMs 
may be warranted. This is due to the present and potential future 
modification and destruction of habitat from commercial timber harvest 
and commercial wood production by methods that may prevent succession 
to the mature forest stages preferred by fishers. This is also due to 
the transition of some commercial timber lands to residential and 
commercial development in areas of western Montana. Based on our 
evaluation of information in our files and the petition, we determine 
that the petition does not present substantial information indicating 
that listing the fisher in the NRMs may be warranted due to climate 
change. However, we will evaluate the effects of climate change on the 
fisher when we conduct our status review.

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

Information Provided in the Petition
    The petitioners cite numerous sources indicating the susceptibility 
of fisher populations to excessive trapping and implicating trapping as 
a major factor in historic declines in fisher populations (Powell 1979, 
p. 153; Douglas and Strickland 1987, p. 524; Powell and Zielinski 1994, 
pp. 44-45; IDFG 1995, pp. 6, 13; Garant and Crete 1997, p. 363; Powell 
1994, p. 101). The petitioners state that trapping is the second 
greatest threat to fishers in the NRMs. The petitioners indicate that 
fishers are impacted tremendously by both intentional and incidental 
trapping (i.e., capture in traps set for other species) (Powell and 
Zielinski 1994, pp. 44-45; IDFG 1995, p. 12; Lewis and Zielinski 1996, 
p. 294) in Montana and incidental trapping in other parts of the range. 
The petitioners state that fisher trapping in Montana is regulated and 
quotas are set by the State wildlife agency (Montana Department of 
Fish, Wildlife and Parks 2007, p. 7). The petitioners assert, without 
documentation, that because of the fisher's low population density, any 
trapping death is incompatible with their persistence. Trapping for 
fishers is not legal in the State of Idaho, but incidental capture of 
fishers does occur in traps set for other legally harvested species 
(IDFG 2007, p. 19). The petitioners speculate that the unreported 
incidental take of fishers is high in the NRM range.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The fisher has been trapped for commercial purposes since the early 
1800s. Over-trapping has contributed to the reduction in size and 
extirpation of fisher populations across the species' range (Douglas 
and Strickland 1987, p. 512). By the mid-1900s, heavy trapping pressure 
and the use of strychnine as a trapping and general predator control 
agent, in addition to habitat loss (discussed above under Factor A), 
eliminated or greatly reduced fisher numbers in low to mid-elevation 
coniferous forests and areas with year-round accessibility (Douglas and 
Strickland 1987, p. 512). The number of fishers trapped, an indicator 
of fisher population size, declined in Canada by 40 percent between 
1920 and 1940, and the fisher in the NRMs was considered extirpated by 
the 1930s (Powell and Zielinski 1994, p. 41). Trapping was discontinued 
after 1929 in Minnesota because of population declines across the Great 
Lake States (Berg and Kuehn 1994, p. 262), and trapping was prohibited 
in Maine between 1937 and 1954 due to a severe constriction of the 
fisher range in the State (Krohn et al. 1994, p. 137). Over-trapping is 
implicated in the loss of fisher populations in the Pacific Northwest 
(Lewis and Zielinski 1996, p. 191; Aubry and Lewis 2003, pp. 81-82).
    Prior to the 1920s, there were no regulations applicable to 
trapping fishers (Powell 1993, p. 77). The closure of trapping seasons 
in the 1920s and 1930s, reintroductions and augmentations, and land-use 
changes helped restore the fisher's presence in many parts of its range 
including the NRMs (Douglas and Strickland 1987, p. 512; Powell 1993, 
p. 80; Drew et al. 2003, p. 59; Vinkey 2003, p. 61). Trapping seasons 
were reopened in many northeastern and midwestern States between 1949 
and 1985, with accompanying regulations intended to prevent 
overtrapping and population decline (Powell 1993, p. 80).
    Trapping is considered one of the most important factors 
influencing fisher populations (Powell and Zielinski 1994, p. 44). 
Fishers are easily trapped (Douglas and Strickland 1987, p. 523),

[[Page 19933]]

and where trapping occurs, their populations could be negatively 
affected (Powell and Zielinski 1994, p. 64). Fisher populations are 
sensitive to the effects of trapping because of a slow reproductive 
rate and the sensitivity of population numbers to prey fluctuations 
(Powell and Zielinski 1994, p. 45). Small or isolated populations may 
be more intensely affected than more robust and widespread populations 
(Powell and Zielinski 1994, p. 45). Where fishers are scarce, 
populations may be seriously affected by trapping or incidental 
trapping for other species including other furbearers (Powell and 
Zielinski 1994, p. 45).
    The abundance and trend of fisher populations in the NRMs are not 
clear. Although fisher presence has been confirmed in over a dozen 
areas, the fisher is one of the lowest density carnivores in the NRM 
region (Vinkey 2003, p. 61; IDFG 2006, entire). Montana is the only 
State in the NRM region where legal trapping for fishers occurs. 
Fishers have been trapped successfully every year since the mid-1980s 
in Montana, indicating that fisher populations in some areas are 
persisting at some level. Although the fisher is not a targeted species 
for harvesting in Idaho, 17 fishers were reported to authorities as 
taken incidentally to trapping of other legally harvested species 
between 1990 and 2006 (IDFG 2007, p. 19), and Jones (1991, p. 115) 
indicates that an estimated 163 fishers were trapped inadvertently in 
Idaho between 1978-1982. We expect that incidental killing of fishers 
occurs in Montana with similar frequency.
    The impact of trapping mortality to fishers in the NRM region is 
not clear based on the limited information available on population 
status and trend; however, incidental trapping is difficult to control, 
and small increases in mortality due to trapping could lead to 
population instability and extirpation, especially in small or isolated 
populations (Powell 1979, p. 152; Powell and Zielinski 1994, p. 45). 
State wildlife agencies set trapping quotas based on some consideration 
of population status, although we have no information on what criteria 
are used to determine harvest quotas for fishers or how fishers are 
protected from incidental capture. We will seek additional information 
regarding the effects of trapping and incidental mortality of fishers 
during the status review process.
Summary of Factor B
    Based on our evaluation of the information presented in the 
petition and in our files, we determine that the petition presents 
substantial information indicating that listing the fisher in the NRMs 
may be warranted due to overutilization for commercial or recreational 
purposes, specifically legal furbearer trapping and the loss of fishers 
in traps set for other species. Incidental trapping is difficult to 
control and small increases in mortality due to trapping could lead to 
population instability and extirpation.

C. Disease or Predation

Information Provided in the Petition
    The petitioners present general information on possible disease 
risks to the family Mustelidae (69 FR 18770), but nothing specific to 
fishers or effects on fishers at a population level. The petitioners 
state the importance of research to investigate the possible effects of 
climate change on disease processes. The petitioners note that 
predation of fishers is reported (Roy 1991, pp. 29, 35) and could be 
significant in light of the small number and isolation of fisher 
populations.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Fox, bear, great-horned owls, and bobcat prey on fishers, although 
there is little evidence to indicate adult fishers have many natural 
enemies except humans (Douglas and Strickland 1987, p. 516). Predation 
of translocated fishers in Montana has been reported (Roy 1991, pp. 29, 
35), but this was attributed to the relocation techniques used and 
fitness of the individual animals (Powell and Zielinski 1994, p. 62; 
Vinkey 2003, p. 34).
Summary of Factor C
    Based on our evaluation of the information presented in the 
petition and in our files, we determine that the petition does not 
present substantial information indicating that listing the fisher in 
the NRMs of the United States may be warranted due to disease or 
predation. No specific information is presented to indicate that 
disease or predation affects fishers at a population level or that 
climate change will exacerbate present conditions or create novel 
disease or predation processes. However, we will evaluate all factors, 
including threats from disease and predation, when we conduct our 
status review.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition
    The petitioners state that existing regulatory mechanisms for 
public land management agencies have been inadequate in addressing the 
decline of fisher habitats from past and ongoing forest practices, 
roads and motorized access, and climate change, and addressing the 
threats to fisher populations from unsustainable legal trapping in 
Montana and incidental trapping throughout the range. The petition 
refers in general terms to the inadequacy of regulations relative to 
Federal, State, Tribal, and private lands in the NRM region and asserts 
that the lack of coordination across administrative boundaries has 
contributed to habitat fragmentation and population decline (Rosenberg 
and Raphael 1986, pp. 263, 267, 271; Freel 1991, p. 2; Heinemeyer 1993, 
pp. 108-109; Heinemeyer and Jones 1994, p. iv; Powell and Zielinski 
1994, pp. 42, 45; IDFG 1995, pp. 8, 9, 12, 17; Carroll et al. 1999, p. 
1357; Ruediger et al. 1999, pp. 5-6).
    Specifically, the petition points to three inadequacies in the 
regulatory process for the management of USFS lands in the region: (1) 
The standards in national forest plans have not protected old-growth 
habitat; (2) the classification of fisher as a ``sensitive'' species 
has not prevented the decline of fisher habitat to its current extent; 
and (3) the 2008 modification of the NFMA regulations removed standards 
to maintain viable populations of native species. The petition asserts 
that the existing trapping regulations have resulted in the decline of 
fisher populations to the present low level by not preventing poaching, 
over-trapping, or incidental trapping.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    As stated in the discussion of Factor A, we determine that the 
petition and information in our files present substantial information 
that listing may be warranted due to the present and potential future 
destruction, modification, or curtailment of habitat from commercial 
timber harvest and commercial wood production that prevents succession 
to the mature forest stages utilized by fishers, and the transition of 
some commercial timber lands to residential and commercial development. 
Past forestry practices combined with continued commercial silviculture 
may limit the capacity of the NRMs to support fisher and call into 
question the effectiveness of current regulatory mechanisms to protect 
fishers on public and private lands. The impacts of roads and motorized 
access on fishers are not clear. As stated under Factor A, fishers do 
not appear to avoid

[[Page 19934]]

roads (Lewis and Stinson 1998, p. 7; Schwartz et al. 2006, p. 6). There 
is limited information available to us at this 90-day finding stage to 
make conclusions on the adequacy of specific regulatory mechanisms. We 
will evaluate the adequacy of existing specific regulatory mechanisms 
further during the status review.
    Presently, the fisher is considered a sensitive species (Forest 
Service Manual 2670.22) in the USFS Regions 1 and 4, including the 
States of Wyoming, Idaho, and Montana, and a sensitive species by the 
Bureau of Land Management (Manual 6840) in Idaho and Montana 
(University of Wyoming 2003, entire; IDFG 2005, entire; Montana Natural 
Heritage Program 2009, entire). The USFS' Sensitive Species Policy 
(USFS Manual (2670.32)) calls upon national forests to assist and 
coordinate with States and other Federal agencies in conserving species 
with viability concerns. However, the petition presents no specific 
information, and we have no information readily available in our files, 
that would allow for even a cursory analysis of the adequacy of the 
USFS sensitive species designation in preventing the decline of fisher 
habitat.
    The USFS has managed for old-growth forests under forest plan 
direction since the 1990s, but the petition presents no specific 
information, and we have no information available in our files, 
indicating the effectiveness of this management in protecting or 
augmenting old-growth forest types for fisher habitat. We have no 
information readily available in our files and the petitioners present 
no specific information or references of policy, projects, or 
activities that have resulted in a decline of fisher populations or 
habitat or intent to cause such effects based on the 2008 changes to 
the NFMA regulations (73 FR 21468, April 21, 2008). As the result of a 
Federal court decision (Citizens for Better Forestry, et al. v. U.S. 
Department of Agriculture, et al., No. C08--1927 CW), the Forest 
Service reinstated the NFMA amended planning rule of 2000 and is 
reevaluating the 2008 amendment (74 FR 67059, December 18, 2009).
    The States of Idaho, Montana, and Wyoming classify the fisher as a 
species of concern, and fisher habitat or viability may be addressed at 
some level when State programs or activities are reviewed. However, the 
petition presents no specific information, and we have no information 
readily available to us, that would allow for even a cursory analysis 
of the adequacy of the State species designations in preventing the 
decline of fisher or their habitat.
    As stated in the discussion of Factor A, the petitioners do not 
present specific information about how global climate change has 
affected or is likely to affect the fisher in the NRMs in a way that 
differs from past climate variability. The petitioners present no 
information, nor do we have any information in our files, on the 
existence of any regulatory mechanism intended to address climate 
change in order to assess its adequacy.
    The petitioners assert that the existing trapping regulations have 
failed to prevent the decline of fisher populations to their low level 
today. In the discussion under Factor B, we determine that the petition 
and information in our files presents substantial information that 
listing may be warranted due to overutilization for commercial or 
recreational purposes. Our determination is based upon the potential 
effects of incidental mortality associated with other legal trapping 
and the sensitivity of fisher populations to additional mortality. It 
is not clear whether the existing regulatory mechanisms for trapping 
fisher or other furbearers have failed to prevent the decline of fisher 
populations. On the one hand, unregulated over-trapping is implicated 
in the reduction in size and extirpation of fisher populations across 
the species' range in the past (Douglas and Strickland 1987, p. 512). 
However, habitat protection, and reintroductions and population 
augmentations, together with the establishment of trapping regulations 
that limit harvest, have helped restore and maintain fisher presence in 
many parts of the species' range (Douglas and Strickland 1987, p. 512), 
including the NRMs.
Summary of Factor D
    Based on our evaluation of the information presented in the 
petition and in our files, we determine that the petition does not 
present substantial information indicating that listing the fisher in 
the NRMs may be warranted due to the inadequacy of regulations 
addressing climate change. The level of information that we have at 
this 90-day finding stage is unclear as to whether the regulatory 
mechanisms pertaining to forestry practices, roads and forest access, 
and trapping are inadequate. We will evaluate all factors, including 
the adequacy of existing regulatory mechanisms, more thoroughly during 
our status review of the species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Information Provided in the Petition
    The petitioners state that fishers in the NRMs are vulnerable to 
random environmental, demographic, and genetic events based on their 
low reproductive rates; tendency toward isolation; dependence on old-
growth forests; and small, isolated populations (69 FR 18770; Jones 
1991, p. 88; Roy 1991, pp. 42, 47, 60-61; Powell and Zielinski 1994, 
pp. 46-48; Weir 2003, p. 25; Wisely et al. 2004, p. 646). They assert 
that past and ongoing trapping, forest practices, and road construction 
(as cited in the discussions of Factors A and B), and the undocumented 
assertion of human-induced climate change and its resulting outbreaks 
of fire, insects, and disease, have contributed to the small size and 
isolation of fisher populations. The petitioners also state that 
isolation erodes genetic diversity, reduces the ability of populations 
to respond to changes in the environment, and could lead to a loss of 
the affected populations (Wisely et al. 2004, p. 646).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The impacts of forest practices and trapping are discussed under 
Factors A and B. We determined under Factor A that the petition does 
not present substantial information, and information in our files is 
insufficient to indicate that listing the fisher in the NRMs may be 
warranted due to climate change. Predicting local climate trends and 
determining how those trends will affect species is uncertain. Without 
additional information, the effect of long-term climate change on the 
fisher in the NRMs is unclear, and the effect could be neutral, a net 
positive, or a net negative.
    We find that the effects of small populations are not substantially 
supported by information in the petition or readily available in our 
files. We recognize that small populations may be vulnerable to genetic 
problems, demographic variability, and extreme or catastrophic 
environmental events. Fishers are considered one of the lowest-density 
carnivores in at least part of the NRMs (Vinkey 2003, p. 61); however, 
the petitioners do not present information and no information is 
available in our files to determine numbers, trends, or demographic 
characteristics of fisher populations in the NRM area.

[[Page 19935]]

Summary of Factor E
    Based on our evaluation of the information presented in the 
petition and in our files, we conclude that the petition does not 
present substantial information indicating that listing the fisher may 
be warranted due to other natural or manmade factors. However, we will 
assess all factors, including this one, more thoroughly during our 
status review of the species.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we have determined that the petition presents substantial 
scientific or commercial information indicating that listing the fisher 
population in the NRMs as a DPS may be warranted. This finding is based 
on substantial information provided by the petitioners and in our files 
for Factors A and B. The information provided under Factors C, D, and E 
is not substantial. In considering what factors might constitute 
threats, we must look beyond the mere exposure of the species to the 
factor to determine whether the species responds to the factor in a way 
that causes actual impacts to the species. If there is exposure to a 
factor, but no response, or only a positive response, that factor is 
not a threat. If there is exposure and the species responds negatively, 
the factor may be a threat and we then attempt to determine how 
significant a threat it is. If the threat is significant, it may drive 
or contribute to the risk of extinction of the species such that the 
species may warrant listing as threatened or endangered as those terms 
are defined by the Act. This does not necessarily require empirical 
proof of a threat. The combination of exposure and some corroborating 
evidence of how the species is likely impacted could suffice. The mere 
identification of factors that could impact a species negatively may 
not be sufficient to compel a finding that listing may be warranted. 
The information shall contain evidence sufficient to suggest that these 
factors may be operative threats that act on the species to the point 
that the species may meet the definition of threatened or endangered 
under the Act.
    Because we have found that the petition presents substantial 
information indicating that listing the fisher in the NRMs under the 
Act may be warranted, we are initiating a status review to determine 
whether listing under the Act is warranted. As part of our status 
review we will examine available information on the threats to the 
species and make a final determination in a 12-month finding on whether 
the species is warranted for listing as endangered or threatened under 
the Act. To ensure that the status review is complete, we are 
requesting scientific and commercial information regarding the fisher 
in the NRMs (as described above under the Information Requested 
section). The petition also asks us to designate critical habitat for 
this species. If we determine in our 12-month finding that listing the 
fisher in its NRM range is warranted, we will address the designation 
of critical habitat in the subsequent proposed listing rule, if we 
conclude critical habitat is prudent and determinable.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Montana Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT section 
above).

Author

    The primary authors of this document are the staff members of the 
Montana Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT section above).

Authority

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

    Dated: April 6, 2010
Daniel M. Ashe
Deputy Director, U.S. Fish and Wildlife Service
[FR Doc. 2010-8795 Filed 4-15-10; 8:45 am]
BILLING CODE 4310-55-S