[Federal Register Volume 76, Number 230 (Wednesday, November 30, 2011)]
[Proposed Rules]
[Pages 74018-74038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30451]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2011-0096; 4500030114]
RIN 1018-AX38


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Southern Selkirk Mountains Population of 
Woodland Caribou (Rangifer tarandus caribou)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the southern Selkirk Mountains 
population of woodland caribou (Rangifer tarandus caribou) under the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 375,562 acres (151,985 hectares) are being proposed for 
designation as critical habitat. The proposed critical habitat is 
located in Boundary and Bonner counties in Idaho, and Pend Oreille 
County in Washington.

DATES: We will accept comments received on or before January 30, 2012. 
Please note that if you are using the Federal eRulemaking Portal (see 
ADDRESSES, below), the deadline for submitting an electronic comment is 
11:59 p.m. Eastern Standard Time on this date. We must receive requests 
for public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by January 17, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Keyword box, enter Docket No. FWS-R1-ES-
2011-0096, which is the docket number for this rulemaking. Then, in the 
Search panel on the left side of the screen, under the Document Type 
heading, click on the Proposed Rules link to locate this document. You 
may submit a comment by clicking on ``Submit a Comment or Submission.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2011-0096; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Brian T. Kelly, State Supervisor, U.S. 
Fish and Wildlife Service, Idaho Fish and Wildlife Office, 1387 S. 
Vinnell Way, Room 368, Boise, ID 83709; telephone (208) 378-5243; 
facsimile (208) 378-5262. If you use a telecommunications device for 
the deaf (TDD), call the Federal Information Relay Service (FIRS) at 
(800) 877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned government agencies, the 
scientific community, industry, or other interested party concerning 
this proposed rule. We particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to the southern Selkirk 
Mountains population of woodland caribou from human activity, the 
degree of which can be expected to increase due to the designation, 
such that the designation of critical habitat may not be prudent.
    (2) Specific information on:
    (a) The amount and distribution of the southern Selkirk Mountains 
woodland caribou habitat in the United States;
    (b) What areas occupied at the time of listing contain the physical 
and biological features essential to the conservation of the species 
should be included in the designation and why; and
    (c) Special management considerations or protections that the 
features essential to the conservation of southern Selkirk Mountains 
woodland caribou identified in this proposal may require, including 
managing for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation. We are particularly interested in any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (5) Information on the projected and reasonably likely impacts of 
climate change on southern Selkirk Mountains woodland caribou and the 
proposed critical habitat.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act and why.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we

[[Page 74019]]

withhold personal information, such as your name, street address, phone 
number, or email address from public review; however, we cannot 
guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Idaho Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    In this proposed rule for designation of critical habitat, we 
intend to discuss only those topics directly relevant to the 
designation of critical habitat for this species. For more detailed 
information on the biology of and threats to the southern Selkirk 
Mountains population of woodland caribou, please refer to the final 
listing rule published in the Federal Register on February 26, 1984 (49 
FR 7390), and the Southern Selkirk Mountain Caribou 5-Year Review 
completed by the Service on December 2, 2008 (USFWS 2008a). Detailed 
information on the southern Selkirk Mountains population of woodland 
caribou directly relevant to designation of critical habitat is 
discussed under the Primary Constituent Elements section below.

Species Information

    Woodland caribou are a subspecies of caribou with a historically 
wide distribution across Canada. In British Columbia, Canada (B.C.) 
there are three recognized ecotypes of woodland caribou: Mountain 
(alpine; arboreal lichen winter feeding group), northern (lives in 
central and northern B.C.), and boreal (restricted to the lowland 
plains of northeastern B.C.). The mountain ecotype of woodland caribou 
is the ecotype found in the United States (U.S.). Each ecotype is 
generally differentiated by the type of habitat occupied, movement 
patterns, and feeding behavior. Ecotypes are described as classes of 
populations adapted to different landscapes or environments as 
expressed by their movements and feeding behavior (COSEWIC 2002, p. 
13).
    The mountain ecotype of woodland caribou, to which the endangered 
southern Selkirk Mountains population belongs, occurs in high 
elevations (generally above 4,000 feet (ft) (1,220 meters (m)), steep 
terrain of the mountainous southeastern and east-central portions of 
B.C., and the Selkirk Mountains of northern Idaho and northeastern 
Washington (USFWS 1994, p. 6; USFWS 2008a, p. 2). They primarily occupy 
old-growth western red cedar (Thuja plicata)/hemlock (Tsuga 
heterophylla) and Engelmann spruce (Picea engelmannii or P. glauca x 
engelmannii)/subalpine fir (Abies lasiocarpa) forests that typically 
have high snow levels. Unlike other caribou, mountain caribou do not 
aggregate into large herds (USFWS 1994, p. 11). They have been 
characterized as ``shy'' forest dwellers, coming together only in small 
groups that do not migrate over great distances. The largest groups are 
encountered during the rut and late winter, whereas spring and summer 
groups are generally small (MCTAC 2002, p. 4). This is likely a 
predator-avoidance tactic (Paquet 1997, p. 9; Seip et al. 1994, p. 77). 
In contrast to the seasonal, long-distance migrations undertaken by 
some caribou subspecies, mountain caribou make strong seasonal 
elevational movements in response to seasonal habitat factors, such as 
snow level, food availability, and predator avoidance.
    The density of caribou populations in B.C. appears to be related to 
their ability to become spatially separated from predators during the 
summer months, when the abundance of wolves is largely determined by 
the availability of other prey species. Consequently, caribou that 
migrate to alpine habitats during the summer reduce their exposure to 
predators (Bergerund et al., 1984 and Seip, 1992 in Seip et al. 1994, 
p. 77). Prior to the increase in moose abundance in B.C. during the 
1900's, it is likely that higher densities of caribou were able to 
coexist with wolves. However, when moose numbers increased, caribou 
that lived in close proximity to moose habitat were eliminated or 
greatly reduced, and the caribou remaining today represent animals that 
were more effective at spacing away from moose and wolves in summer. It 
appears the effectiveness of predator avoidance strategies is the 
dominant factor that determines the natural population density of 
caribou populations in B.C. (Seip et al. 1994, p. 78).

Geographic Range

    Currently, the entire global population of the southern Selkirk 
Mountains population of woodland caribou occurs within B.C., Idaho, and 
Washington, where they are considered to be at risk of extirpation 
(USFWS 2008a, p. 10). The southern Selkirk Mountains woodland caribou 
population is now the southernmost extant population of mountain 
caribou and the last remaining mountain caribou population in the U.S. 
(IDFG CWCS Appendix F 2005, p. 373; USFWS 2008a, p. 12). In Idaho, 
caribou have historically been reported from the 1880s as far south as 
the St. Joe River and at Elk City near the Clearwater River (Evans 
1960, pp. 59-64), and also in the city of St. Maries as recently as 
1959 (Evans 1960, p. 93). The current range extends approximately 484 
miles (mi) (779 kilometer (km)) in a northwest to southeast direction 
from the north end of the Hart Ranges in B.C. to the south end of the 
Selkirk Mountains in Idaho and Washington (see Figure 1).

[[Page 74020]]

[GRAPHIC] [TIFF OMITTED] TP30NO11.163

    The southern Selkirk Mountains woodland caribou population is 
separated by 30-60 mi (48-96 km) from the next closest local 
populations to the north and east in B.C. (USFWS 2008a, p. 12). 
Although caribou numbers in the southern Selkirk Mountains population 
have fluctuated over the last few decades, augmentation efforts between 
1987 and 1990, and 1996 and 1998, from northern caribou herds in B.C. 
has allowed this herd to have a modest increase (average of 7 percent) 
in population over the last 5 to 10 years (USFWS 2008a, pp. 15-16). 
Annual surveys are conducted by Idaho Fish and Game (IDFG), with both 
fixed-wing aircraft and a helicopter, using standard survey protocols 
developed for caribou (Wakkinen et al. 2009, pp. 3, 5-6). In June 2009, 
IDFG estimated this population to be approximately 46 animals; 3 of 
which were located within the U.S. portion of the range (Wakkinen et 
al. 2009, pp. 6-7). This represents an increase from the 30 individuals 
estimated at the time of listing (49 FR 7390-7394). Preliminary 
estimates reported from surveys conducted in late winter 2011 indicate 
the population to be approximately 36 animals; however, IDFG reports 
low confidence in that estimate due to poor weather conditions that 
limited aerial surveys (Wakkinen 2011, pers. comm.).

Ecology and Habitat

    Southern Selkirk Mountains caribou are closely tied to old-growth 
coniferous forests of the Interior Wet-belt ecosystem of B.C. and the 
United States. Their survival depends on the ability to spread out over 
large areas of suitable habitat where it is difficult for predators to 
find them (Stevenson et al., 2001, p. 1). Mountain caribou habitat is 
defined as old-growth forests (generally more than 100-150 years old), 
which support abundant arboreal lichens (the key winter food source of 
mountain caribou) (Stevenson et al. 2001, p. 1; USFWS 2008a, p. 20).
    All caribou are principally grazers, and exhibit selective foraging 
behaviors for grasses, flowering plants, horsetails, willow and dwarf 
birch leaves and tips, sedges, and lichens in spring and summer (Paquet 
1997, pp. 13, 16). For southern Selkirk Mountains caribou, the fall and 
early winter diet consists largely of dried grasses, sedges, willow and 
dwarf birch tips, and arboreal lichens (Paquet 1997, p. 13). When the 
snow deepens, their diet consists almost exclusively of arboreal 
lichens, which are usually the only food available

[[Page 74021]]

(Paquet 1997, p. 13; MCTAC 2002, p. 11).
    Southern Selkirk Mountains caribou habitat is typically represented 
by a combination of two vegetation zones: The cedar/hemlock zone at 
lower elevations and the subalpine fir/Engelmann spruce zone at higher 
elevations. Caribou also require transition areas and corridors between 
these two vegetation zones. In general, mountain caribou seasonal 
habitats consist of early winter, late winter, spring, calving, summer, 
and fall habitats, which are primarily within the above vegetation 
zones (Servheen and Lyon 1989, p. 235; USFS 2004, p. 18; USFWS 2008a, 
p. 20). Early-winter and late-winter habitats are usually considered to 
be the most important habitats to caribou, and represent the most 
limiting type of habitat on the landscape within the recovery area 
(USFS 2004, p. 19). These seasonal habitats are described under the 
Physical and Biological Features section below.

Previous Federal Actions

    In 1980, the Service received petitions to list the South Selkirk 
Mountains population of woodland caribou as endangered under the 
Endangered Species Act from the Idaho Department of Fish and Game 
(IDFG) and Dean Carrier, a U.S. Forest Service (USFS) staff biologist 
and former chairman of the International Mountain Caribou Technical 
Committee (IMCTC). At that time, the population was believed to consist 
of 13 to 20 animals (48 FR 1722-1726). Following a review of the 
petition and other data readily available, the southern Selkirk 
Mountains woodland caribou population in northeastern Washington, 
northern Idaho, and southeastern B.C. was listed as endangered under 
the Act's emergency procedures on January 14, 1983 (48 FR 1722-1726). A 
second emergency rule was published on October 25, 1983 (48 FR 49245-
49249), and a final rule listing the southern Selkirk Mountains 
woodland caribou population as endangered was published on February 29, 
1984 (49 FR 7390-7394). The designation of critical habitat was 
determined to be not prudent at that time, since increased poaching 
could result from the publication of maps showing areas used by the 
species. A Management Plan/Recovery Plan for Selkirk Caribou was 
approved by the Service in 1985 (USFWS 1985), and revised in 1994 
(USFWS 1994).
    Notices of 90-day findings on two petitions to delist the southern 
Selkirk Mountains population of woodland caribou were published in the 
Federal Register on November 29, 1993 (58 FR 62623), and November 1, 
2000 (65 FR 65287). Both petitions were submitted by Mr. Peter B. 
Wilson, representing the Greater Bonners Ferry Chamber of Commerce, 
Bonners Ferry, Idaho. Our response to both petitions stated that the 
petitions did not present substantial scientific or commercial 
information indicating that delisting of the woodland caribou may be 
warranted.
    On August 17, 2005, a complaint was filed in Federal district court 
challenging two biological opinions issued by the Service, and USFS 
management actions within southern Selkirk Mountains caribou habitat 
and the recovery area. The plaintiffs included Defenders of Wildlife, 
Conservation Northwest, the Lands Council, Selkirk Conservation 
Alliance, Idaho Conservation League, and Center for Biological 
Diversity. The lawsuit challenged, in part, nonjeopardy biological 
opinions on the USFS Land and Resource Management Plans for the Idaho 
Panhandle (IPNF) and Coleville (CNF) National Forests, and the USFS' 
failure to comply with the incidental take statements in the biological 
opinions.
    In December 2005, the Court granted a preliminary injunction 
prohibiting snowmobile trail grooming within the caribou recovery area 
on the IPNF during the winter of 2005-2006. In November 2006, the Court 
granted a modified injunction restricting snowmobiling and snowmobile 
trail grooming on portions of the IPNF within the southern Selkirk 
Mountains caribou recovery area. On February 14, 2007, the Court 
ordered a modification of the current injunction to add a protected 
caribou travel corridor connecting habitat in the U.S. portion of the 
southern Selkirk Mountains with habitat in B.C. This injunction is 
currently in effect, pending the completion of section 7 consultation 
on the IPNF's proposed winter travel plan.
    On April 11, 2006, a notice of initiation of 5-year reviews for 70 
species in Idaho, Oregon, Washington and Hawaii, and Guam was published 
in the Federal Register (69 FR 18345-8348), including the southern 
Selkirk Mountains population of woodland caribou. The Southern Selkirk 
Mountains Caribou Population 5-Year Review was completed December 5, 
2008 (USFWS, 2008a).
    On December 6, 2002, the Defenders of Wildlife, Lands Council, 
Selkirk Conservation Alliance, and Center for Biological Diversity 
(plaintiffs) petitioned the Service to designate critical habitat for 
the endangered southern Selkirk Mountains population of woodland 
caribou. On February 10, 2003, we acknowledged receipt of the 
plaintiff's petition, and stated we were unable to address the petition 
at that time due to budgetary constraints. On January 15, 2009, a 
complaint for declaratory and injunctive relief (Defenders of Wildlife 
et al., v. Salazar, CV-09-15-EFS) was filed in Federal District Court, 
alleging that the Service's failure to make a decision more than 6 
years after the petition was submitted violated the Administrative 
Procedure Act (5 U.S.C. 551-559, 701-706). In a stipulated settlement 
agreement, we agreed to make a critical habitat prudency determination, 
and if determined to be prudent, to submit a proposed critical habitat 
rule to the Federal Register on or before November 20, 2011, and a 
final critical habitat rule by November 20, 2012.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be endangered or threatened. The 
final rule listing the southern Selkirk Mountains population of 
woodland caribou as an endangered species (49 FR 7390; February 29, 
1984) states that designation of critical habitat would not be prudent, 
because critical habitat designation would require publication and 
extensive publicity of the precise areas occupied by the herd and the 
kind of habitat utilized. As a result, there would be a serious risk of 
facilitating poaching, which was identified as an important cause of 
the decline of the herd. A designation of critical habitat is not 
prudent when one or both of the following situations exist: (1) The 
species is threatened by taking or other human activity, and the 
identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species (50 CFR 424.12(a)(1)(i) 
and (ii)). As we agreed in the settlement agreement, we have re-
evaluated our previous ``not prudent'' finding regarding critical 
habitat designation for the southern Selkirk Mountains woodland caribou 
population and the information supporting our previous findings. We 
have also evaluated information and analysis that has become available 
to us subsequent to publication of the February 29, 1984, final rule. 
We have reviewed the best available information and now determine the 
designation of critical

[[Page 74022]]

habitat for the southern Selkirk Mountains population of woodland 
caribou would not be expected to increase the degree of threat by 
poaching, since increased education and awareness have made illegal 
poaching less of a threat than at the time of listing. Accordingly, we 
no longer find designation of critical habitat to be ``not prudent'' 
under our regulations, and have determined that the designation is 
prudent.
    As stated above, section 4(a)(3) of the Act requires the 
designation of critical habitat concurrently with the species' listing 
``to the maximum extent prudent and determinable.'' Our regulations at 
50 CFR 424.12(a)(2) state that critical habitat is not determinable 
when one or both of the following situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    We reviewed the available information pertaining to the biological 
needs of this species and habitat characteristics where the species 
occurs. This and other information represent the best scientific data 
available, and the available information is sufficient for us to 
identify areas to propose as critical habitat. Therefore, we conclude 
that the designation of critical habitat is determinable for the 
southern Selkirk Mountains woodland caribou population.

Recovery Plan

    The recovery strategy identified in the Selkirk Mountains Woodland 
Caribou Recovery Plan (USFWS 1994), is to maintain the existing two 
herds in the Selkirk ecosystem and establish a third herd in Washington 
State, and secure and manage at least 443,000 acres (ac) (179,000 
hectares (ha)) of suitable and potential habitat in the Selkirks to 
support a self-sustaining population. Approximately 47 percent of the 
suitable and potential habitat identified in the recovery plan occurs 
within B.C., and 53 percent is within the U.S. (USFWS 1994, p. 4). 
Population modeling would be used to determine the projected size of a 
recovered population, and, pending environmental analysis, the existing 
herds would be augmented with mountain caribou from B.C. translocated 
to the western portion of the Selkirk Mountains in Washington (USFWS 
1994, pp. 24-25). The recovery plan acknowledged some uncertainty about 
recovery objectives, and identified the need for monitoring to 
demonstrate the efficacy, or lack thereof, of the recovery plan. The 
intent was for the recovery plan to evolve into a biologically sound 
document using adaptive management, to help identify the specific 
objectives needed to ensure population viability and sustainability 
(USFWS 1994, p. 27).
    The specific recovery tasks related to habitat (USFWS 1994, pp. 30-
35) included:
     Conducting inventories;
     Determining habitat capability;
     Reducing the impacts of fire;
     Reducing impacts of insects and disease;
     Reducing impacts of timber management;
     Reducing or eliminating impacts of recreational 
activities;
     Establishing the recovery zone boundary; and
     Securing habitat.
    Information needed to verify recovery objectives (USFWS 1994, pp. 
36-42) included:
     Researching habitat needs;
     Determining caribou habitat relations;
     Evaluating timber management practices related to caribou 
habitat;
     Evaluating the effects of roads and motorized vehicles on 
caribou and their habitats;
     Developing, implementing, and validating the cumulative 
effects model;
     Conducting population research;
     Determining recovery goals and objectives;
     Determining the amount of habitat needed for a recovered 
population; and
     Establishing caribou in the western portion of the 
Selkirks in Washington.
    The specific details of these objectives are available in the 
recovery plan, which has been provided as supplementary information to 
this proposed rule at http://www.regulations.gov.

5-Year Review

    A 5-year review of a listed species is required by section 4(c)(2) 
of the Act, and considers all new available information concerning the 
population status of the species and the threats that affect it. This 
process can serve as an integral component of tracking recovery 
implementation, updating scientific understanding, and evaluating the 
status of the species. The Service conducts these periodic reviews to 
ensure the listing classification of a species as threatened or 
endangered is accurate. The 5-year status review considers the best 
scientific and commercial information that has become available since 
the original listing determination or last review, such as: species 
biology, habitat conditions, conservation measures, threat status and 
trends, and any other new information. The Service publishes a notice 
in the Federal Register announcing the initiation of these reviews, and 
provides the public an opportunity to submit relevant information 
regarding the species and its threats.
    The 2008 Southern Selkirk Mountains Population of Woodland Caribou 
5-Year Review acknowledged that the recovery criteria in the recovery 
plan (USFWS 1994) do not reflect the best available and most up to date 
information on the biology of the species and its habitat (USFWS 2008, 
p. 15). Since 1994, a great deal of information has been collected 
regarding caribou and their habitat, the effects of threats such as 
habitat fragmentation, predation and human access, and various options 
and approaches for recovery efforts. As is discussed in more detail in 
the Geographic Range section above, the southern Selkirk Mountains 
caribou population has been augmented twice over the last two decades. 
Between 1987 and 1990, the population was augmented with 60 animals 
from source herds in B.C., which were placed in the Idaho portion of 
the Selkirk ecosystem, establishing a second herd within the recovery 
area (USFWS 2008, p. 15). Over the last decade, the number of caribou 
in Idaho has dwindled, and the bulk of the population primarily occupy 
habitat in the B.C. portion of the recovery area, although there is 
continued movement back and forth across the B.C. and U.S. border. 
Between 1996 and 1998, the southern Selkirk Mountains population was 
augmented with 43 animals; some were placed in Washington and some were 
placed just north of the border in B.C. Unfortunately, the augmentation 
effort coincided with a high mountain lion population in the Selkirk 
ecosystem, and a number of the transplanted caribou were thought to 
have been lost to predation, although definitive data on many 
mortalities was lacking. Although neither the 1996 nor 1998 
augmentations resulted in a long-term improvement in caribou 
distribution throughout the recovery area, the effort succeeded in 
maintaining and enhancing the number of caribou in the population as a 
whole, which was estimated at 46 animals in 2008 (USFWS 2008, pp. 15-
16).
    The current recovery plan establishes the actions and conservation 
objectives needed to recover the southern Selkirk Mountains population 
of the woodland caribou. The proposed critical habitat designation will 
support those objectives by identifying the specific geographic areas 
in the southern Selkirk

[[Page 74023]]

Mountains in Washington, and areas in Idaho, that (1) Were occupied at 
the time of listing (i.e., within the area of normal utilization 
described in the final listing rule (49 FR 7390; February 29, 1984)); 
(2) provide the physical or biological features essential to the 
conservation of the species; and (3) may require special management 
considerations or protection. The recovery plan also states that for 
recovery, woodland caribou in the Selkirks must be distributed over a 
wider area than at present (USFWS 1994, p. 36). Optimally, this would 
include habitat in both B.C. and the U.S. We are not proposing to 
designate unoccupied critical habitat since we are unable to identify 
any specific areas in the U.S. that are outside the geographical area 
occupied by the southern Selkirk Mountains caribou at the time of 
listing that are essential to the conservation of the species.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) Which are essential to the 
conservation of the species, and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that when combined compose 
the features essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species 
(e.g., see Climate Change discussion below). For these reasons, a 
critical habitat designation does not signal that habitat outside the 
designated area is unimportant or may not be required for recovery of 
the species. Areas that are important to the conservation of the 
species, both inside and outside of the critical habitat designation, 
will continue to be subject to: (1) Conservation actions implemented 
under section 7(a)(1) of the Act, (2) regulatory protections afforded 
by the requirement in section 7(a)(2) of the Act for Federal agencies 
to ensure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species, and (3) the 
prohibitions of section 9 of the Act if actions occurring in these 
areas may

[[Page 74024]]

affect the species. Federally funded or permitted projects affecting 
listed species outside their designated critical habitat areas may 
still result in jeopardy findings in some cases. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of these planning efforts calls for a 
different outcome.

Climate Change

    Climate change will be a particular challenge for biodiversity 
because the interaction of additional stressors associated with climate 
change and current stressors may push species beyond their ability to 
survive (Lovejoy 2005, pp. 325-326). The synergistic implications of 
climate change and habitat fragmentation are the most threatening facet 
of climate change for biodiversity (Hannah et al. 2005, p. 4). Current 
climate change predictions for terrestrial areas in the Northern 
Hemisphere indicate warmer air temperatures, more intense precipitation 
events, and increased summer continental drying (Field et al. 1999, pp. 
1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6; 
Intergovernmental Panel on Climate Change (IPCC) 2007, p. 1181). In the 
Pacific Northwest, regionally averaged temperatures have risen 0.8 
degrees Celsius (C) (1.5 degrees Fahrenheit (F)) over the last century 
(as much as 2 degrees C (4 degrees F) in some areas), and are projected 
to increase by another 1.5 to 5.5 degrees C (3 to 10 degrees F) over 
the next 100 years (Mote et al. 2003, p. 54; Karl et al. 2009, p. 135). 
In addition, climate change may lead to increased frequency and 
duration of severe storms and droughts (Golladay et al. 2004, p. 504; 
McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015).
    We anticipate that these changes could directly impact southern 
Selkirk Mountains caribou by modifying the factors that affect the 
abundance, distribution, and quality of caribou habitat, the ability of 
caribou to move between seasonal habitats, and their ability to avoid 
predation. Climate change may also have impacts on caribou by affecting 
external factors such as increased disease and insect outbreaks, 
increased fire occurrence, and changes in snow depth. The impacts from 
these effects could lead to increased habitat fragmentation and changes 
in forest composition, changes in forage ability and abundance, and 
changes in predation, which are each important to caribou survival. 
Because of the close ties between caribou movement and seasonal snow 
conditions, seasonal shifts in snow conditions will likely be 
significant to the caribou (Utzig 2005, pp. 4, 8).
    Review of climate change modeling presented in Utzig (2005, p. 5) 
demonstrated projected shifts in habitats within the present range of 
mountain caribou in Canada. Projections for 2055 indicate a significant 
decrease in alpine habitats, which is loosely correlated with the 
distribution of the arboreal lichens on which mountain caribou depend. 
The projected biogeoclimatic zone distributions indicate a significant 
increase in the distribution of western red cedar (Thuja plicata) in 
the mid-term with a shift up in elevation and northward in the longer 
term. Subalpine fir (Abies lasiocarpa) distribution tends to shift up 
in elevation, with long-term decreasing presence in the south and on 
the drier plateau portions of the present range. However, both tree 
species maintain significant presence in the area presently occupied by 
mountain caribou, and their increased distributions to the north may 
indicate the potential for range expansion for caribou in those 
northern areas (Utzig 2005, p. 5). The predictions for 2085 indicate an 
increase in drier vegetation types at lower elevations, potentially 
causing an increase in other ungulate species such as deer, moose, and 
elk. This may result in increased predator numbers in response to 
increased prey availability, and increased predation on caribou (Utzig 
2005, p. 4). However, further data would be necessary to confirm this 
hypothesis, and if confirmed, specific management and mitigation 
measures would need to be developed. Utzig (2005, p. 10) also 
identifies several uncertainties in the paper's conclusion (e.g., it is 
impossible to reliably predict specific ecosystem changes and to 
reliably predict potential impacts), and acknowledges that caribou 
managed to survive in the last glacial period as well as intervening 
climate change over the last 10,000 years.
    The movement of mountain caribou is closely tied to changes in snow 
depth and consolidation in the snow pack, allowing access to arboreal 
lichens in winter. In general, climate change projections suggest 
reduced snowpacks and shorter winters, particularly at lower elevations 
(Utzig 2005, p. 7). Snowpack depth is significant in determining the 
height at which arboreal lichens occur on trees, and the height at 
which caribou are able to access lichens in the winter. These arboreal 
lichens are also dependent upon factors influenced by climate, 
including humidity and stand density (Utzig 2005, p. 7).
    The information currently available on the effects of global 
climate change and increasing temperatures does not make sufficiently 
precise estimates of the location and magnitude of the effects, nor are 
we currently aware of any climate change information specific to the 
habitat of the southern Selkirk Mountains caribou that would indicate 
what areas may become important to the species in the future. 
Therefore, we are unable to determine what additional areas, if any, 
may be appropriate to include in the proposed critical habitat 
designation for this species to address the effects of climate change. 
We are, however, soliciting comments on this challenging management 
issue; all comments related to climate change will be fully considered 
in our final determination.

Physical or Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and the regulations at 50 CFR 424.12, in determining which areas within 
the geographical area occupied at the time of listing to designate as 
critical habitat, we consider the physical or biological features 
essential to the conservation of the species, which may require special 
management considerations or protection. These include, but are not 
limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features required for 
the southern Selkirk Mountains caribou from studies of this species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the final listing rule published in the 
Federal Register on February 26, 1984 (49 FR 7390), the 1994 Revised 
Recovery Plan for the Selkirk Mountains Woodland Caribou, and the 
Southern Selkirk Mountains Caribou Population 5-Year Review completed 
by the Service on December 2, 2008 (USFWS 2008a). We have determined 
that the following

[[Page 74025]]

physical or biological features are essential for the southern Selkirk 
Mountains caribou population.
Space for Individual and Population Growth and for Normal Behavior
    The southern Selkirk Mountains caribou population requires large 
contiguous areas of high-elevation forest summer and winter habitat, 
with little or no vehicle access and disturbance, so they can spread 
out at low densities (i.e., 30-50 caribou/250,000 ac (100,000 ha)) and 
avoid predators (Seip and Cichowski 1996, p. 79; Stevenson et al. 2001, 
p. 1). Mountain caribou strongly prefer old-growth forests to young 
forests in all seasons (Stevenson et al. 2001, p. 1).
    The primary long-term threat to the southern Selkirk Mountains 
caribou is the ongoing loss and fragmentation of contiguous old-growth 
forests and forest habitats due to a combination of timber harvest, 
wildfires, and road development. The effects associated with habitat 
loss and fragmentation are: (1) Reduction of the amount of space 
available for caribou, limiting the ecological carrying capacity; (2) 
reduction of the arboreal lichen supply, affecting the caribou's key 
winter food source; (3) potential impacts to caribou movement patterns; 
(4) potential effects to the caribou's use of remaining fragmented 
habitat because suitable habitat parcels will be smaller and 
discontinuous; and (5) increased susceptibility of caribou to predation 
as available habitat is compressed and fragmented (Stevenson et al. 
2001, p. 10; MCTAC 2002, pp. 20-22; Cichowski et al. 2004, pp. 10, 19-
20; Apps and McLellan 2006, pp. 92-93; Wittmer et al. 2007, pp. 576-
577).
    Forest management practices have been a concern for caribou habitat 
management for more than 25 years (Stevenson et al. 2001, p. 1; MCTAC 
2002, p. 17). In the last decade, timber harvest has moved into high-
elevation mature and old-growth forest habitat types due to more roads 
and more powerful machinery capable of traversing difficult terrains 
(Stevenson et al. 2001, p. 10). The habitat requirements of mountain 
caribou are incompatible with most currently used forest management 
practices (Stevenson et al. 2001, p. 1). Timber harvesting can reduce 
and fragment areas creating a patchwork of different age classes of 
forest stands, all linked with a network of roads. This patchwork may 
contain enough lichens to support a caribou herd, but will not allow 
the herd to effectively avoid predators in the southern Selkirk 
ecosystem (Stevenson et al. 2001; p. 1). A patchwork of habitat within 
forests draws other ungulates such as moose (Alces alces), elk (Cervus 
elaphus), and deer (Odocoileus spp.) into close proximity with caribou, 
and consequently brings in predators such as mountain lions (Felis 
concolor), wolves (Canis lupus), coyotes (Canis latrans), wolverines 
(Gulo gulo luscus), black bears (Ursus americanus), and grizzly bears 
(Ursus arctos) (Seip and Cichowski 1996, p. 79; Wittmer et al. 2005; 
pp. 414-417)
    The southern Selkirk Mountains caribou use habitat as an important 
means of limiting the effect of predation by spreading out over large 
areas at high elevations that other ungulate species avoid (Seip and 
Cichowski 1996, p. 79; MCTAC 2002, pp. 20-21; Kinley and Woods 2006, 
all). By dispersing over large areas, caribou become unprofitable prey 
(i.e., it is not worth a predator's energy investment to seek out prey 
when there are so few animals in a large area, which is often in deep 
snow). The amount of habitat required by a caribou population to make 
them an unpredictable prey to predators may be significantly more than 
the habitat needed to obtain sufficient winter forage of lichens 
(Stevenson et al. 2001, p. 15). To adequately provide for their habitat 
needs, large contiguous areas of mature to old-growth western hemlock/
western red cedar forests and subalpine fir and Engelmann spruce 
forests, and the connecting habitat in-between, are required. In order 
for the southern Selkirk Mountains caribou population to be able to use 
these areas, the habitats need to be connected, particularly during 
winter when the energy costs of moving through deep snow can be high 
(Stevenson et al. 2001, p. 15).
    Therefore, based on the information above, we identify suitable, 
large contiguous areas of habitat that allows caribou to spread out at 
low densities, avoid predators, and obtain sufficient winter forage of 
lichens, as a physical or biological feature (PBF) for the southern 
Selkirk Mountains caribou.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Arboreal hair lichens comprise a critical winter food source, and 
the southern Selkirk Mountains caribou diet is almost entirely lichens 
from November to May (Servheen and Lyon 1989, p. 235; Stevenson et al. 
2001, p. 1; USFS 2004, p. 18), since they represent the only food 
source available (Paquet 1997, p. 13). Lichens are pulled from the 
branches of conifers, picked from the surface of the snow after being 
blown out of trees by wind, or are grazed from wind-thrown branches and 
trees. The two kinds of lichens commonly eaten by the south Selkirk 
caribou are Bryoria spp. and Alectoria sarmentosa; both are most 
commonly found in high-elevation climax forests on old trees (Paquet 
1997, p. 14). These lichens are extremely slow-growing, and are 
typically abundant only in mature or old-growth forests (125 years or 
older) (Paquet 1997, p. 2). Relative humidity, wetting and drying 
cycles, and amount of light are ultimately the controlling factors of 
lichen growth.
    During the spring and summer, the southern Selkirk Mountains 
caribou move to lower elevations to forage on grasses, flowering 
plants, horsetails, willow and dwarf birch leaves and tips, sedges, and 
lichens in subalpine meadows (Paquet 1997, p. 13, 16), and on 
huckleberry leaves (USFS 2004, p. 18). The fall and early winter diet 
consists largely of dried grasses, sedges, willow and dwarf birch tips, 
and arboreal lichens.
    Therefore, based on the information above, we identify arboreal 
hair lichens, Bryoria spp. and Alectoria sarmentosa, which occur on 
mature to old-growth trees, or are available having been blown out of 
trees, to be an essential winter season PBF for this species. These 
lichens also represent a PBF for female caribou that move into higher 
elevations during the June-July calving season (see discussion below).
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    In spring (May to July) the southern Selkirk Mountains caribou move 
to areas with green vegetation, which become the primary food source. 
These areas may overlap with early and late winter ranges at mid to 
lower elevations (Servheen and Lyon 1989, p. 235; MCTAC 2002, p. 11), 
and vegetation in these areas allow caribou to recover from the effects 
of winter (USFWS 1994, p. 7). Pregnant females will move to these 
spring habitats for forage, but during the calving season in early June 
to July, the need to avoid predators influences habitat selection. 
Areas selected for calving are typically at high-elevation, old-growth 
forest ridgetops that can be food limited, but are more likely to be 
predator free (USFWS 1994, p. 8; MCTAC 2002, p. 11). Arboreal lichen 
becomes the primary food source for pregnant females and females with 
calves, since green forage is unavailable in these secluded and high-
elevation habitats.
    Therefore, based on the information above, we identify large 
contiguous areas of high-elevation, old-growth forest ridgetops, which 
are likely to be predator limited, and have sufficient

[[Page 74026]]

forage of lichens to support a pregnant cow, or cow-calf pair, to be a 
PBF for this species.
Habitats That Are Protected From Disturbance or Are Representative of 
the Historical, Geographical, and Ecological Distributions of a Species
    In general, seasonal habitats of the southern Selkirk Mountains 
caribou consist of early winter, late winter, spring, calving, summer, 
and fall habitats primarily within two vegetation zones: Western 
hemlock/western red cedar and subalpine fir/Engelmann spruce forests 
(USFS 2004, p. 18; USFWS 2008a, p. 20). Caribou typically make the 
longest landscape movements during the early winter period, which may 
range from several miles (kilometers) to about 30 mi (48 km) (USFS 
2004, p. 22). Early winter is a period of rapid snow accumulation and 
generally extends from November to mid/late January. During this time, 
the southern Selkirk Mountains caribou generally inhabit mature to old-
growth western hemlock/western red cedar forests, the lower limits of 
the subalpine fir and Engelmann spruce forests, and the ecotone (a zone 
of transition between two different ecosystems) between these two 
forest types (USFWS 2008a, p. 20). These habitats generally occur 
between 4,000 and 6,200 ft (about 1,220-1,900 m) in elevation, and have 
a more closed-overstory canopy (70 percent or more) to intercept snow 
(USFS 2004, p. 18, USFWS 2008a, p. 20).
    Caribou seek out these more closed timber stands where they feed on 
a combination of lichen on wind-thrown trees, and lichens that have 
fallen from standing trees (litterfall) (MCTAC 2002, p. 10). If 
available, shrubs and other forbs that remain accessible in snow wells 
under large trees are also consumed. A conifer canopy that intercepts 
snow and allows access to feeding sites is important (MCTAC 2002, p. 
10) until the snow pack consolidates and the caribou can move to higher 
elevations (USFS 2004, p. 18). However, these elevational shifts can be 
quite variable within and between years, depending on snow levels (Apps 
et al. 2001, p. 67; Kinley et al. 2007; p. 94). All mountain caribou 
experience the poorest mobility and food availability of any season 
during early winter because of the typically deep, soft snow (MCTAC 
2002, p. 10).
    Late winter generally starts around mid-January and extends to 
approximately April. During this time, the snowpack is deep (up to 16 
ft (5 m) on ridge tops) and firm enough to support the animal's weight, 
which allows easier movement. These upper slopes and ridge tops are 
generally higher than 6,000 ft (1,830 m) in elevation, support mature 
to old stands of subalpine fir and Engelmann spruce with relatively 
open canopies (approximately 10 to 50 percent canopy cover), and have 
high levels of arboreal lichen (USFWS 1994, p. 6; MCTAC 2002, p. 10; 
USFS 2004, p. 18; Kinley and Apps, 2007, p. 15; USFWS 2008a, p. 20).
    Spring is usually from May to July, when caribou move to areas that 
have green vegetation to recover from the effects of winter (Servheen 
and Lyon 1989, p. 235; USFWS 1994, p. 7). July to mid-October is 
considered to be the summer habitat season for caribou. Southern 
Selkirk Mountains caribou spend the summer in higher elevational alpine 
and subalpine areas with high forage availability (USFWS 1994, p. 8). 
Early summer in open-canopied stands provide forbs and huckleberry 
(Vaccinium spp.) leaves. Summer range includes Engelmann spruce/
subalpine fir forests and western hemlock/western red cedar forests 
(Stevenson et al. 2001, p. 1; Kinley and Apps 2007, p. 15). In the 
Selkirk Mountains, the shallow slopes used in late summer are 
characteristically high-elevation benches, secondary stream bottoms and 
riparian areas, and seeps where forage is lush and abundant (Servheen 
and Lyon 1989, p. 236).
    Fall habitat (generally October into November) use by southern 
Selkirk Mountains caribou is driven primarily by the availability of 
forage vegetation as vascular plants disappear. Caribou may gradually 
move to western hemlock dominated forests. It is during this time of 
year when southern Selkirk Mountains caribou are making the transition 
from green forage to arboreal lichens (Servheen and Lyon, 1989, p. 
236). As winter nears, the annual cycle of habitat use by the southern 
Selkirk Mountains caribou population repeats itself.
    Increasing levels of winter recreational activities (e.g., 
snowmobiling) within the southern Selkirk Mountains caribou recovery 
area, which includes the Colville National Forests (CNF) in Washington 
and Idaho Panhandle National Forests (IPNF) in Idaho, is an emerging 
threat to the southern Selkirk Mountains caribou. The numbers and 
distribution of recreational snowmobilers has increased over the last 
l0-15 years, due in part to improved snowmobile technology and the 
increasing popularity of the sport. Snowmobiling activities have the 
potential to displace caribou from suitable habitat, resulting in 
additional energy expenditure by caribou when they vacate an area to 
avoid disturbance (Tyler 1991, p. 191). This results in an effective 
loss of habitat availability temporarily, and potentially for the long 
term if caribou abandon areas characterized by chronic disturbance.
    Therefore, based on the information above, we identify large 
contiguous areas of old-growth or mature forests, at high-elevation 
(4,000 ft (about 1,220 m) or greater) and transitional areas that 
connect habitats essential to meet the life history requirements of the 
southern Selkirk Mountains population of woodland caribou, and have 
little to no disturbance from vehicles or other forest activities, as 
physical or biological features for southern Selkirk Mountains caribou.
Primary Constituent Elements for the Southern Selkirk Mountains Caribou
    Under the Act and its implementing regulations, we are required to 
identify the physical and biological features essential to the 
conservation of the southern Selkirk Mountains caribou population in 
areas occupied at the time of listing, focusing on the features' 
primary constituent elements. We consider primary constituent elements 
to be the specific compositional elements of physical and biological 
features that are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the mountain 
caribou's vital life-history functions, we determine that the primary 
constituent elements specific to the southern Selkirk Mountains caribou 
population are:
    i. Mature to old-growth western hemlock (Tsuga heterophylla)/
western red cedar (Thuja plicata) climax forest, and subalpine fir 
(Abies lasiocarpa)/Engelmann spruce (Picea engelmanni) climax forest 
over 4,000 ft (1,220 m) in elevation; these habitats typically have 70 
percent or greater canopy closure.
    ii. Ridge tops with deep (up to 16 ft (5 m)) snowpack that are 
generally 6,000 ft (1,830 m) in elevation or higher, in mature to old 
stands of subalpine fir (Abies lasiocarpa)/Engelmann spruce (Picea 
engelmanni) climax forest, with relatively open (approximately 50 
percent) canopy.
    iii. Arboreal hair lichen growth in high enough amounts to support 
southern Selkirk Mountains caribou herds.
    iv. High-elevation benches and shallow slopes, secondary stream 
bottoms, riparian areas, and seeps, and subalpine meadows with 
succulent forbs and grasses, flowering plants,

[[Page 74027]]

horsetails, willow, huckleberry, dwarf birch, sedges and lichens. 
Southern Selkirk Mountains caribou, including pregnant females, use 
these areas for feeding during the spring and summer seasons.
    v. Transition zones that connect the habitats described above and 
that facilitate seasonal caribou movements between habitat types.
    The physical or biological features for the southern Selkirk 
Mountains caribou are, therefore, the arrangement of the above habitat 
types and their components and transition zones on the landscape in a 
manner that supports seasonal movement, feeding, breeding, and 
sheltering needs. Each of the seasonal use areas creates space on the 
landscape that allows caribou to spread out and avoid predators. These 
areas also have little or no disturbance from forest practices, roads, 
or recreational activities.
    The final listing rule states that the southern Selkirk Mountains 
population of woodland caribou is the only caribou population that is 
still known to regularly occupy the conterminous U.S., and is found in 
northern Idaho and northeastern Washington. This population also occurs 
in southern B.C. (49 FR 7390; February 29, 1984). The final rule 
describes the ``area of normal utilization'' in the U.S. (starting from 
the B.C. border), as: (1) Southward along Kootenay Lake and the 
Kootenay River to the town of Bonners Ferry, Idaho; (2) southward along 
U.S. Highway 95 to the Pend Oreille River; (3) westward and northward 
along the Pend Oreille River; and (4) across the Idaho-Washington State 
line to the Washington-B.C. border (49 FR 7390; February 29, 1984). 
With this proposed designation of critical habitat, we intend to 
conserve the physical and biological features essential to the 
conservation of the species, through the identification of the primary 
constituent elements sufficient to support the life-history functions 
of the species. All areas proposed for designation as critical habitat 
were occupied at the time of listing and contain those physical or 
biological features essential to the conservation of the species, which 
may require special management considerations or protections.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features that are essential to the conservation of 
the species and which may require special management considerations or 
protection.
    A comprehensive discussion of the threats affecting the species is 
included in the Southern Selkirk Mountains Caribou Population 5-Year 
Review (USFWS 2008a), the Idaho Comprehensive Wildlife Conservation 
Strategy (2005), and the Revised Selkirk Mountains Woodland Caribou 
Recovery Plan (USFWS 1994). The features essential to the conservation 
of this species, described above, may require special management 
considerations or protections to reduce the following threats: Habitat 
fragmentation of contiguous old-growth forests due to forest management 
practices and activities, wildfire, disturbances such as roads and 
recreation, and altered predator/prey dynamics.
    Special management considerations or protection are required within 
critical habitat areas to address these threats, which are occurring 
within each of the subunits proposed for designation. Management 
activities that could ameliorate these threats include (but are not 
limited to) conservation measures and actions to minimize the effects 
of forest management practices on these features, actions to minimize 
the potential for wildfire and the implementation of rapid response 
measures when wildfire occurs, road and recreational area closures as 
appropriate to avoid or minimize the potential for disturbance-related 
impacts, and reducing opportunities for predator-caribou interactions.

Existing Conservation Measures

    Land and resource management plans (LRMPs) for the IPNF and CNF 
have been revised to incorporate management objectives and standards to 
address the above threats, as a result of section 7 consultation 
between the USFWS and USFS (USFWS 2001a, b). Standards for caribou 
habitat management have been incorporated into the IPNF's 1987 and 
CNF's 1988 LRMP, respectively, to avoid the likelihood of jeopardizing 
the continued existence of the species, contribute to caribou 
conservation, and ensure consideration of the biological needs of the 
species during forest management planning and implementation actions 
(USFS 1987, pp. II-6, II-27, Appendix N; USFS 1988, pp. 4-10 to 4-17, 
4-38, 4-42, 4-73 to 4-76, Appendix I).
    These efforts contribute to the protection of the essential 
physical or biological features by: (1) Retaining old-growth cedar/
hemlock stands; (2) analyzing timber management actions on a site-
specific basis to consider potential impacts to caribou habitat; (3) 
avoiding road construction through old-growth forest stands unless no 
other reasonable access is available; (4) placing emphasis on road 
closures and habitat mitigation based on caribou needs and 
requirements; (5) containing and controlling wildfires within southern 
Selkirk Mountains caribou management areas to prevent loss of 
coniferous species in all size classes; and (6) managing winter 
recreation in the CNF in Washington, with specific attention to 
snowmobile use within the Sullivan Lake Ranger District.

Criteria Used To Identify Critical Habitat

    As required by section 4(b) of the Act, we use the best scientific 
and commercial data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--is necessary to ensure the conservation of the species. The 
areas we are proposing to designate as critical habitat generally 
follow the recovery areas identified in the recovery plan (USFWS 1994), 
which are all within the geographical area occupied at the time of 
listing. Therefore, we are not currently proposing to designate any 
areas outside the geographical area occupied at the time of listing, 
because we believe occupied areas are sufficient for the conservation 
of the species. The occupied areas identified at the time of listing in 
1984 contain sufficient physical or biological features to support the 
life-history functions essential for the conservation of the species.
    We reviewed available information and supporting data that pertains 
to the habitat requirements of the southern Selkirk Mountains caribou. 
These sources of information included, but were not limited to, the 
final listing noticed published in the Federal Register on February 29, 
1984 (49 FR 7390-7394), the 1985 Management/Recovery Plan for Selkirk 
Caribou (USFWS 1985) and appendices, the Revised Recovery Plan for the 
Selkirk Mountains Woodland Caribou (USFWS 1994), and the Southern 
Selkirk Mountains Caribou Population 5-Year Review (USFWS 2008a). 
Additional Service documents used include the Biological Opinion and 
Conference Opinion for the Modified Idaho Roadless Rule for USDA Forest 
Service Regions 1 and 4 (USFWS 2008b), and

[[Page 74028]]

Biological Opinions for the continued implementation of both the CNF 
and IPNF LRMPs (USFWS 2001a, b). Other information included the Idaho 
Comprehensive Wildlife Conservation Strategy (2005), research published 
in peer-reviewed articles, academic theses, agency reports, habitat 
modeling assessments, telemetry data, and mapping information from U.S. 
and Canadian sources. We also used regional Geographic Information 
System (GIS) data (such as species occurrence data, land use, 
elevation, topography, aerial imagery, soil data, and land ownership 
maps) for area calculations and mapping.
    We used the following criteria to select areas occupied by southern 
Selkirk Mountains caribou at the time of listing for inclusion in 
critical habitat:
    (a) The geographical area occupied by the southern Selkirk 
Mountains caribou at the time of listing (1984) as identified in the 
final listing rule (49 FR 7390-7394).
    (b) Areas representative of the distribution of the southern 
Selkirk Mountains caribou seasonal habitat needs throughout the 
geographical area occupied at the time of listing, with the goal of 
maintaining the species' range of habitat and genetic variability.
    (c) Areas that provide the essential physical or biological 
features necessary to support the species' life-history requirements 
under varying environmental conditions.
    (d) Areas that provide connectivity between mountain caribou 
habitat to provide for seasonal movement and genetic variability.
    Our first step in delineating proposed critical habitat was to 
identify areas that provide for the conservation of the southern 
Selkirk Mountains caribou within the geographic region described as the 
approximate area of normal utilization in the listing rule (49 FR 7390-
7394; February 29, 1984). This includes portions of the CNF in 
Washington, and the IPNF in Idaho, and some Priest Lake Endowment Lands 
managed by the state of Idaho's Department of Lands (IDL).
    Critical habitat boundaries were initially identified above 4,000 
ft (about 1,220 m) in elevation, which corresponds to the elevation 
above which the woodland caribou are generally known to occur within 
the southern Selkirk Mountains ecosystem in Idaho and Washington 
(Layser 1974, p. 25-26; USFWS 1994, p. 6; USFWS 2008a, p. 2). Using a 
Geographical Information System (GIS), we mapped the area described as 
occupied in the 1984 final listing (49 FR 7390-7394), and delineated 
areas at 4,000 ft (1,220 m) and above using a 32.8 ft (10 m) digital 
elevation model. We overlayed seasonal telemetry radiolocations of 
caribou collected in the southern Selkirk Mountain ecosystems (B.C., 
Idaho, and Washington), from 1987 through 2004 by the IDFG, Washington 
Department of Fish and Wildlife, and the Fish and Wildlife Compensation 
Program (Columbia Basin) in B.C. To further refine proposed critical 
habitat boundaries, we overlaid the currently defined Recovery Area 
boundaries, caribou movement corridors mapped by the IPNF (USFS 2004, 
pp. 22-23), and results of the seasonal habitat suitability model 
developed by Kinley and Apps (2007, entire) for the southern Selkirk 
Mountains ecosystem.
    After delineating areas above 4,000 ft (1,220 m) utilizing the 
above methods, we filtered the results to remove isolated patches and 
some larger areas along the southern boundary in Washington and Idaho 
because they either lacked PCEs, were adjacent to Schweitzer ski resort 
(which has a large footprint on the landscape and fragments/isolates 
areas above 4,000 ft (about 1,220 m) in Idaho), or had relatively low 
historical utilization based on telemetry data. We included certain 
areas below 4,000 ft (about 1,220 m) in elevation where seasonal 
connectivity between habitats was required. These include areas within 
the IPNF north of Upper Priest Lake north to the Canadian border, along 
the east and west banks of the Priest River.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features for the southern Selkirk Mountains 
caribou. The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect the 
exclusion of such developed lands. Any such lands inadvertently left 
inside critical habitat boundaries shown on the maps of this proposed 
rule have been excluded by text in the proposed rule and are not 
proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification, unless 
the specific action would affect the PBFs in the adjacent critical 
habitat.
    One unit, which contains two subunits, is being proposed for 
designation based on sufficient elements of the essential physical or 
biological features being present to support the southern Selkirk 
Mountains caribou population life-history processes.

Proposed Critical Habitat Designation

    We are proposing one unit containing two subunits as critical 
habitat for the southern Selkirk Mountains caribou population. The 
critical habitat area described below constitutes our best assessment 
of areas that meet the definition of critical habitat for the southern 
Selkirk Mountains caribou population. Within the Selkirk Mountains 
Critical Habitat Unit, we have identified two subunits: (1) Bonner and 
Boundary Counties, Idaho; and (2) Pend Oreille County, Washington.
    The approximate size and ownership of each proposed critical 
habitat subunit is identified in table 1. Each subunit was occupied at 
the time of listing in 1984.
    TABLE 1. Proposed critical habitat unit and subunits for the 
southern Selkirk Mountains population of woodland caribou. [Area 
estimates reflect all land within critical habitat unit boundaries, 
values are rounded to the nearest whole numbers.]

                 Selkirk Mountains Critical Habitat Unit
    [Southern Selkirk Mountains Caribou (Rangifer tarandus caribou)]
------------------------------------------------------------------------
                                   Land ownership by    Size of unit in
    Critical habitat subunit             type          acres  (hectares)
------------------------------------------------------------------------
1. Bonner and Boundary Counties,  Federal...........  222,971 ac (90,233
 Idaho.                                                ha).
                                  State.............  65,218 ac (26,393
                                                       ha).
                                  Private...........  15,379 ac (6,223
                                                       ha).
                                  Subunit Total.....  303,568 ac
                                                       (122,849 ha).
2. Pend Oreille County,           Federal...........  71,976 ac (29,128
 Washington.                                           ha).
                                  State.............  0.

[[Page 74029]]

 
                                  Private...........  0.
                                  Subunit total.....  71,976 ac (29,128
                                                       ha).
    Ownership Totals............  Federal...........  294,947 ac
                                                       (119,361 ha).
                                  State.............  65,236 ac (26,400
                                                       ha).
                                  Private...........  15,379 ac (6,224
                                                       ha).
    Unit Total..................  ..................  375,562 ac
                                                       (151,985 ha).
 
------------------------------------------------------------------------
Note: Totals may not sum due to rounding.

    The following section presents a brief description of the Selkirk 
Mountains Critical Habitat Unit, land ownership use within the Unit, 
and why this Unit meets the definition of critical habitat for the 
southern Selkirk Mountains caribou. Since this information is also 
relevant to each of the two subunits, the subunits are not individually 
described. The overall unit and subunit boundaries are depicted on the 
maps included in this proposed rule.

Selkirk Mountain Critical Habitat Unit

    The Selkirk Mountains Critical Habitat Unit consists of 375,562 ac 
(151,985 ha) and is divided into two subunits: Subunit 1 in Bonner and 
Boundary Counties, Idaho; and subunit 2 in Pend Oreille County, 
Washington. The Selkirk Mountains Critical Habitat Unit consists of 
land higher than 4,000 ft (1,220 m) in elevation, and is generally 
bounded by State Highway 31 and 20 to the west and south in Washington, 
U.S. Highway 2 to the south in Idaho, U.S. Highway 2/95 to the east in 
Idaho, and the U.S./Canadian border to the north. Land ownership within 
the Unit consists of 294,947 ac (119,361 ha) of Federal land (primarily 
USFS), 65,236 ac (26,400 ha) of State of Idaho land, and 15,379 ac 
(6,224 ha) of private land. The Federal land is administered by both 
the Colville and Idaho Panhandle National Forests, with a small segment 
of land managed by the Bureau of Land Management. The Selkirk Mountains 
Critical Habitat Unit was occupied at the time of listing (49 FR 7390-
7394; February 29, 1984), and contains all of the physical or 
biological features essential to the conservation of the southern 
Selkirk Mountains caribou population.
    The primary land uses within the Selkirk Mountains Critical Habitat 
Unit include Federal, State, and private forest management activities 
and recreational activities throughout the year, including, but not 
limited to, snowmobiling, off-highway vehicle (OHV) use, backcountry 
skiing, and hunting. Special management considerations or protections 
needed within the Unit would need to address habitat fragmentation of 
contiguous old-growth forests due to forest practices and activities, 
wildfire, disturbances such as roads and recreation, and altered 
predator/prey dynamics.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
or threatened species, or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action which is likely to jeopardize the 
continued existence of any species proposed to be listed under the Act 
or result in the destruction or adverse modification of proposed 
critical habitat. Since the southern Selkirk Mountains caribou is 
listed as endangered, Federal agencies already consult with the Service 
in areas currently occupied by caribou, or if the species may be 
indirectly or directly affected by the action, to ensure that their 
actions do not jeopardize the continued existence of the species.
    Decisions by the Fifth and Ninth Circuit Courts of Appeals have 
invalidated our definition of ``destruction or adverse modification'' 
(50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and 
Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. 
U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th Cir. 
2001)), and we do not rely on this regulatory definition when analyzing 
whether an action is likely to destroy or adversely modify critical 
habitat. Under the statutory provisions of the Act, we determine 
destruction or adverse modification on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would continue to serve its intended conservation role for the 
species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable. We define 
``reasonable and prudent alternatives'' (at 50 CFR 402.02) as 
alternative actions identified during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,

[[Page 74030]]

    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species or avoid the 
likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of the critical habitat for the southern Selkirk 
Mountains caribou. As discussed above, the role of critical habitat is 
to support life-history needs of the species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the southern Selkirk Mountains population of woodland 
caribou. These activities include, but are not limited to:
    (1) Actions that would reduce or remove mature old-growth 
vegetation (greater than 100-125 years old) within the cedar hemlock 
zone at lower elevations (below 4,000 ft (1,220 m)) and within 
subalpine fir/Engelmann spruce zone at higher elevations stands (at or 
greater than 4,000 ft (1,220 m)), including the ecotone between these 
two forest habitats. Such activities could include, but are not limited 
to, forest stand thinning, timber harvest, and fuels treatment of 
forest stands. These activities could significantly reduce the 
abundance of arboreal lichen habitat, such that the landscape's ability 
to produce adequate densities of arboreal lichen to support persistent 
mountain caribou populations is at least temporarily diminished.
    (2) Actions that would cause permanent loss or conversion of old-
growth coniferous forest on a scale proportionate to the large 
landscape used by mountain caribou. Such activities could include, but 
are not limited to, recreational area developments, certain types of 
mining activities, and associated road building. Such activities could 
eliminate and fragment mountain caribou and arboreal lichen habitat.
    (3) Actions that would increase traffic volume and speed on roads 
within mountain caribou critical habitat. Such activities could 
include, but are not limited to, transportation projects to upgrade 
roads or development, or development of a new tourist destination. 
These activities could reduce connectivity within the old-growth 
coniferous forest landscape for mountain caribou.
    (4) Actions that would increase recreation in mountain caribou 
recovery areas. Such activities could include, but are not limited to, 
recreational developments that facilitate winter access into mountain 
caribou habitat units, or management activities that increase 
recreational activities within mountain caribou habitat throughout the 
year, such as snowmobiling, OHV use, and backcountry skiing. These 
activities have the potential to displace caribou from suitable habitat 
or increase their susceptibility to predation. Displacement of caribou 
may result in additional energy expenditure by caribou when they vacate 
an area to avoid disturbance, and an effective loss of habitat 
availability temporarily and potentially in the long-term, where 
caribou abandon areas affected by chronic disturbance.
    Mountain caribou strongly prefer old-growth forests to young 
forests in all seasons. In designated critical habitat, management 
actions that alter vegetation structure or condition in young forests 
over limited areas may not represent an adverse effect to caribou 
critical habitat. However, an adverse effect could result if these 
types of management activities reduce and fragment areas in a manner 
that creates a patchwork of different age classes or prevents young 
forests from achieving old-growth habitat characteristics. For example, 
a commercial thinning or fuels reduction project in a young forest may 
not require formal consultation, whereas a commercial thinning or fuels 
reduction project conducted within an old-growth forest may be an 
adverse effect to mountain caribou critical habitat and would require 
formal consultation. Federal agencies should examine the scale of their 
activities to determine whether direct or indirect alteration of 
habitat would occur to an extent that the value of critical habitat for 
the conservation of the mountain caribou would be appreciably 
diminished.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resource management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
    (1) An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
    (2) A statement of goals and priorities;
    (3) A detailed description of management actions to be implemented 
to provide for these ecological needs; and
    (4) A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical

[[Page 74031]]

habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 
1533(a)(3)(B)(i)) now provides: ``The Secretary shall not designate as 
critical habitat any lands or other geographical areas owned or 
controlled by the Department of Defense (DOD), or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no DOD lands with a completed INRMP within the proposed 
critical habitat designation.

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we must 
identify the benefits of including the area in the designation, 
identify the benefits of excluding the area from the designation, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If the analysis indicates that the benefits of exclusion 
outweigh the benefits of inclusion, the Secretary may exercise his 
discretion to exclude the area only if such exclusion would not result 
in the extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. The proposed critical habitat areas include Federal, State, 
and private lands, some of which are used for timber harvest and 
motorized winter recreation (e.g., snowmobiling, cross-country skiing). 
Other land uses that may be affected will be identified as we develop 
the draft economic analysis for the proposed designation.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Idaho Fish and Wildlife 
Office directly (see FOR FURTHER INFORMATION CONTACT). During the 
development of a final designation, we will consider economic impacts, 
public comments, and other new information, and areas may be excluded 
from the final critical habitat designation under section 4(b)(2) of 
the Act and our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have determined that the lands within the proposed designation of 
critical habitat for the southern Selkirk Mountains population of 
woodland caribou are not owned or managed by the DOD, and, therefore, 
we anticipate no impact to national security. Consequently, the 
Secretary does not propose to exercise his discretion to exclude any 
areas from the final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any Tribal issues, and consider the government-to-
government relationship of the United States with Tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this proposal, we have determined that there are 
currently no HCPs or other management plans for southern Selkirk 
Mountains caribou, and the proposed designation does not include any 
Tribal lands or trust resources. We anticipate no impact to Tribal 
lands, partnerships, or HCPs from this proposed critical habitat 
designation. Accordingly, the Secretary does not propose to exercise 
his discretion to exclude any areas from the final designation based on 
other relevant impacts.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We have invited these peer reviewers 
to comment during this public comment period on our specific 
assumptions and conclusions in this proposed designation of critical 
habitat.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this proposed rule under 
Executive Order 12866 (Regulatory Planning and Review). OMB bases its 
determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on

[[Page 74032]]

the economy or adversely affect an economic sector, productivity, jobs, 
the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the draft 
economic analysis prepared under section 4(b)(2) of the Act and 
Executive Order 12866. The proposed critical habitat areas include 
Federal, State, and private lands, some of which are used for timber 
harvest and motorized winter recreation (e.g., snowmobiling, cross-
country skiing). Other land uses that may be affected will be 
identified as we develop the draft economic analysis for the proposed 
designation.
    This draft economic analysis will provide the required factual 
basis for the RFA finding. Upon completion of the draft economic 
analysis, we will announce availability of the draft economic analysis 
of the proposed designation in the Federal Register and reopen the 
public comment period for the proposed designation. We will include 
with this announcement, as appropriate, an initial regulatory 
flexibility analysis or a certification that the rule will not have a 
significant economic impact on a substantial number of small entities 
accompanied by the factual basis for that determination. We have 
concluded that deferring the RFA finding until completion of the draft 
economic analysis is necessary to meet the purposes and requirements of 
the RFA. Deferring the RFA finding in this manner will ensure that we 
make a sufficiently informed determination based on adequate economic 
information and provide the necessary opportunity for public comment.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. Since there are no energy facilities within the 
footprint of the proposed critical habitat boundaries, we do not expect 
the designation of this proposed critical habitat to significantly 
affect energy supplies, distribution, or use. Therefore, this action is 
not a significant energy action, and no Statement of Energy Effects is 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments. The lands being proposed for critical habitat 
designation are predominantly owned by the State of Idaho, the U.S. 
Forest Service, and the Bureau of Land Management. None of these 
government entities fit the definition of ``small governmental 
jurisdiction.'' Therefore, a Small Government Agency Plan is not 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have

[[Page 74033]]

significant takings implications. As discussed above, the designation 
of critical habitat affects only Federal actions. Critical habitat 
designation does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. Due 
to current public knowledge of the species protections and the 
prohibition against take of the species both within and outside of the 
proposed areas, we do not anticipate that property values will be 
affected by the critical habitat designation. However, we have not yet 
completed the economic analysis for this proposed rule. Once the 
economic analysis is available, we will review and revise this 
preliminary assessment as warranted, and prepare a Takings Implication 
Assessment.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Washington and Idaho. The designation of critical habitat 
in areas currently occupied by the southern Selkirk Mountains caribou 
may impose nominal additional regulatory restrictions to those 
currently in place and, therefore, may have little incremental impact 
on State and local governments and their activities. The designation 
may have some benefit to these governments because the areas that 
contain the physical or biological features essential to the 
conservation of the species are more clearly defined, and the elements 
of the features of the habitat necessary to the conservation of the 
species are specifically identified. This information does not alter 
where and what federally sponsored activities may occur. However, it 
may assist local governments in long-range planning (rather than having 
them wait for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the elements of physical 
and biological features essential to the conservation of the species 
within the designated areas to assist the public in understanding the 
habitat needs of the southern Selkirk Mountains caribou population.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).]

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We have determined that there are no tribal lands that were 
occupied by woodland caribou at the time of listing that contain the 
features essential for conservation of the species, and no tribal lands 
unoccupied by the species at the time of listing that are essential for 
the conservation of the southern Selkirk mountain caribou population. 
Therefore, we are not proposing to designate critical habitat for the 
southern Selkirk Mountains caribou on tribal lands.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov and upon request from the 
Idaho Fish

[[Page 74034]]

and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary authors of this package are staff members of the Idaho 
Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

    2. In Sec.  17.11(h), revise the entry for ``Caribou, woodland'' 
under ``Mammals'' in the List of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Caribou, woodland................  Rangifer tarandus     Canada, U.S. (AK,    Canada               E               1984, 128E,     17.95(a)           NA
                                    caribou.              ID, ME, MI, MN,      (southeastern                          136, 143
                                                          MT, NH, VT, WA,      British Columbia
                                                          WI).                 bounded by the
                                                                               Canada-U.S.
                                                                               border, Columbia
                                                                               River, Kootenay
                                                                               River, Kootenay
                                                                               Lake, and Kootenai
                                                                               River, U.S. (ID,
                                                                               WA).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95, amend paragraph (a) by adding an entry for 
``Woodland caribou, (Rangifer tarandus caribou), Southern Selkirk 
Mountains Population'' in the same alphabetical order that the species 
appears in the table at Sec.  17.11(h), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (a) Mammals.
* * * * *
Woodland Caribou (Rangifer tarandus caribou) Southern Selkirk Mountains 
Population
    (1) Critical habitat units are depicted for Bonner and Boundary 
Counties, Idaho, and Pend Oreille County, Washington, on the maps 
below.
    (2) Within these areas, the primary constituent elements of the 
physical and biological features essential to the conservation of the 
southern Selkirk Mountains population of woodland caribou consist of 
components:
    i. Mature to old growth western hemlock (Tsuga heterophylla)/
western red cedar (Thuja plicata) climax forest, and subalpine fir 
(Abies lasiocarpa)/Engelmann spruce (Picea engelmanni) climax forest 
over 4,000 ft (1,220 m) in elevation; these habitats typically have 70 
percent or greater canopy closure.
    ii. Ridge tops with deep (up to 16 ft (5 m)) snowpack that are 
generally 6,000 ft (1,830 m) in elevation or higher, in mature to old 
stands of subalpine fir (Abies lasiocarpa)/Engelmann spruce (Picea 
engelmanni) climax forest, with relatively open (approximately 50 
percent) canopy.
    iii. Arboreal hair lichen growth in high enough amounts to support 
southern Selkirk Mountains woodland caribou herds.
    iv. High-elevation benches and shallow slopes, secondary stream 
bottoms, riparian areas, and seeps, and subalpine meadows with 
succulent forbs and grasses, flowering plants, horsetails, willow, 
huckleberry, dwarf birch, sedges, and lichens.
    v. Transition zones that connect the habitats described above and 
that facilitate seasonal caribou movements between habitat types.
    (3) Critical habitat does not include manmade structures (such as 
buildings, fire lookout stations, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created using digital elevation models, caribou radiotelemetry points, 
and caribou habitat suitability models, and were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (5) Note: Index map follows:
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[[Page 74035]]

[GRAPHIC] [TIFF OMITTED] TP30NO11.164

    (6) Subunit 1: Bonner and Boundary Counties, Idaho. Map of Subunit 
1, Bonner and Boundary Counties, Idaho, follows:

[[Page 74036]]

[GRAPHIC] [TIFF OMITTED] TP30NO11.165

    (8) Subunit: Pend Oreille County, Washington. Map of Subunit 2, 
Pend Oreille County, Washington, follows:

[[Page 74037]]

[GRAPHIC] [TIFF OMITTED] TP30NO11.166


[[Page 74038]]


* * * * *

    Dated: November 16, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-30451 Filed 11-29-11; 8:45 am]
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