[Federal Register Volume 83, Number 195 (Tuesday, October 9, 2018)]
[Proposed Rules]
[Pages 50574-50582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21794]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2018-0076; 4500030113]
RIN 1018-BD19


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Coastal Distinct Population Segment of the Pacific Marten

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 
list the coastal distinct population segment (DPS) of Pacific marten 
(Martes caurina), a mammal species from coastal California and Oregon, 
as a threatened species under the Endangered Species Act (Act). If we 
finalize this rule as proposed, it would extend the Act's protections 
to this species. The effect of this regulation will be to add this 
species to the List of Endangered and Threatened Wildlife.

DATES: We will accept comments received or postmarked on or before 
December 10, 2018. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m. 
Eastern Time on the closing date. We must receive requests for public 
hearings, in writing, at the address shown in FOR FURTHER INFORMATION 
CONTACT by November 23, 2018.

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 Search box, enter FWS-R8-ES-2018-0076, 
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 ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2018-0076; U.S. Fish and Wildlife 
Service Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 
22041-3803.
    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 Public Comments below for more information).

FOR FURTHER INFORMATION CONTACT: Dan Everson, Field Supervisor, U.S. 
Fish and Wildlife Service, Arcata Ecological Services Field Office, 
1655 Heindon Road, Arcata, California 95521, or by telephone 707-822-
7201. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Requested

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 the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule. We 
particularly seek comments concerning:
    (1) The coastal marten's biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) Information on activities that are necessary and advisable for 
the conservation of the coastal marten to include in a 4(d) rule for 
the species. Section 4(d) of the Act provides that when a species is 
listed as a threatened species, the Secretary shall issue such 
regulations as he deems necessary and advisable to provide for the 
conservation of such species. The Service has proposed such measures 
here and will evaluate ideas provided by the public in considering the 
prohibitions that are appropriate to include in the 4(d) rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include. Please 
note that submissions merely stating support for or opposition to the 
action under consideration without providing supporting information do 
not provide substantial information necessary to support a 
determination. Section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    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.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    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, Arcata Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

[[Page 50575]]

Public Hearing

    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.

Species Status Assessment

    A species status assessment (SSA) team prepared an SSA report for 
the coastal marten. The SSA team was composed of Service biologists, 
who worked throughout the process with other species experts. The SSA 
report represents a compilation of the best scientific and commercial 
data available concerning the status of the species, including the 
impacts of past, present, and future factors (both negative and 
beneficial) affecting the species. The SSA report underwent independent 
peer review by scientists with expertise in carnivore biology, habitat 
management, and stressors (factors negatively affecting the species) to 
the species. The SSA report and other materials relating to this 
proposal can be found on the Arcata Ecological Services Field Office 
website at https://www.fws.gov/arcata/ and at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076, and at the 
Arcata Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Previous Federal Action

    On September 28, 2010, we received a petition from the Center for 
Biological Diversity (CBD) and the Environmental Protection Information 
Center (EPIC), requesting that we consider for listing the (then-
classified) subspecies Humboldt marten (Martes americana 
humboldtensis), or the (now-recognized) subspecies Humboldt marten (M. 
caurina humboldtensis), or the Humboldt marten DPS of the Pacific 
marten (M. caurina). The petitioners further stipulated that, based on 
recent genetic analyses indicating that populations of marten from 
coastal Oregon (considered members of M. a. caurina) are more closely 
related to M. a. humboldtensis than to M. a. caurina in the Cascades of 
Oregon (citing Dawson 2008, Slauson et al. 2009a), the range of the 
subspecies or DPS of the Humboldt marten should be expanded to include 
coastal Oregon populations of martens. In a letter to the petitioners 
dated October 22, 2010, we responded that we reviewed the information 
presented in the petition and determined that issuing an emergency 
regulation temporarily listing the species under section 4(b)(7) of the 
Act was not warranted.
    On January 12, 2012, we published in the Federal Register a 90-day 
finding (77 FR 1900) that the petition presented substantial 
information indicating that listing may be warranted, and, 
subsequently, we initiated a status review. For purposes of the 90-day 
finding, the common name Humboldt marten referred to the then-
classified American marten (M. americana) populations in coastal 
northern California and coastal Oregon.
    On June 23, 2014, we published a scoping notice in the Federal 
Register (79 FR 35509) that summarized the uncertainty regarding the 
taxonomic classification of the subspecies (based on current genetics 
information) and indicated our intent to conduct an evaluation (for the 
12-month finding) of a potential DPS of martens in coastal northern 
California and coastal Oregon relative to the full species 
classification level. On April 7, 2015, we published a not-warranted 
12-month finding on the September 2010 petition (80 FR 18742).
    On December 12, 2015, the Center for Biological Diversity and EPIC 
filed a complaint for declaratory and injunctive relief, alleging that 
our determination on the coastal marten violated the Act. By Order Re: 
Summary Judgment issued on March 28, 2017, the District Court for the 
Northern District of California remanded for reconsideration the 
Service's 12-month finding. On May 3, 2017, the court issued a 
stipulated order that the Service was to submit a 12-month finding to 
the Federal Register by October 1, 2018. This document serves as our 
12-month finding on the September 2010 petition.

Background

    A thorough review of the taxonomy, life history, and ecology of the 
coastal marten is presented in the SSA report (Service 2018; available 
at https://www.fws.gov/arcata/ and at http://www.regulations.gov under 
Docket No. FWS-R8-ES-2018-0076).
    Our SSA report synthesizes the biology and status of the DPS of the 
Pacific marten (Martes caurina) in coastal Oregon and northern coastal 
California, commonly referred to as the coastal marten. On June 23, 
2014, we published a notice in the Federal Register (79 FR 35509) that 
summarized the taxonomic classification of the subspecies (based on 
current genetic information) and indicated our intent to conduct an 
evaluation of a potential DPS of martens in coastal Oregon and coastal 
northern California relative to the full species classification level. 
On April 7, 2015, we published a DPS analysis (80 FR 18742) concluding 
that Pacific martens in coastal Oregon and northern coastal California 
were both discrete and significant and constituted a listable entity 
referred to collectively as the ``coastal DPS of the Pacific marten.'' 
This document and the associated SSA reflect our analysis of that DPS. 
Preliminary results of genetic evaluation of the Pacific marten 
indicate that coastal Oregon and northern coastal California marten 
populations likely represent a single subspecies (Slauson et al. 2009a, 
pp. 1338-1339; Schwartz et al. 2016, unpublished report) but the 
taxonomic change has not yet been published. In this case, our listable 
entity may be a subspecies, but the analysis maintains its validity.
    The coastal marten is a medium-sized carnivore that historically 
occurred throughout the coastal forests of northwestern California and 
Oregon. Martens have a long and narrow body type typical of the 
mustelid family (e.g., weasels, minks, otters, and fishers): Overall 
brown fur with distinctive coloration on the throat and upper chest 
that varies from orange to yellow to cream, large and distinctly 
triangular ears, and a bushy tail that is proportionally equivalent to 
about 75 percent of the head and body length. They are polygamous, with 
females solely responsible for raising young. Females do not mate until 
15 months of age and, due to delayed implantation, will not produce 
their first litters until they are at least 24 months old. Juveniles 
disperse from their natal home range at around 6 months of age. Martens 
exhibit intrasexual territoriality, and dominant males maintain home 
ranges that encompass one or more female's home ranges.
    In the wild, most martens live less than 5 years. In light of 
delayed implantation, a small proportion of female martens, perhaps 10 
percent at best, are reproducing for more than 3 years, contributing to 
a slow reproductive output.
    Coastal martens have a generalist diet that changes seasonally with 
prey availability. Overall, their diet is dominated by mammals, but 
birds, insects, and fruits are seasonally important. They need to eat 
15-25 percent of their body mass daily to meet their metabolic 
requirements.
    Martens tend to select older forest stands (e.g., late-
successional, old-

[[Page 50576]]

growth, large-conifer, mature, late-seral, structurally complex). These 
forests have a mixture of old and large trees, multiple canopy layers, 
snags and other decay elements, dense understory development, and 
biologically complex structure and composition.

Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of factors affecting 
its continued existence as set forth in section 4(a)(1) of the Act. The 
SSA report documents the results of our comprehensive biological status 
review for the coastal marten, including an assessment of the potential 
stressors to the species. It does not represent a decision by the 
Service on whether the species should be proposed for listing as an 
endangered or threatened species under the Act. It provides the 
scientific basis that informs our regulatory decision, which involves 
the further application of standards within the Act and its 
implementing regulations and policies. The following is a summary of 
the key results and conclusions from the SSA report.
    To evaluate the biological status of the coastal marten both 
currently and into the future, we assessed a range of conditions to 
allow us to consider the species' resiliency, redundancy, and 
representation (together, the 3Rs). The coastal marten needs multiple 
resilient populations distributed widely across its range to maintain 
persistence into the future and to avoid extinction. If populations 
lose resiliency, they are more vulnerable to extirpation, with 
resulting losses in representation and redundancy. Several factors 
influence whether coastal marten populations will increase to maximize 
habitat occupancy, which increases the resiliency of a population to 
stochastic events. These factors include the connectivity between 
populations, amount of suitable habitat for establishing home ranges, 
and amount of habitat that allows for predator avoidance. As we 
consider the future viability of the species, more populations with 
high resiliency distributed across the known range of the species are 
associated with higher overall species viability.
    Coastal marten historically ranged throughout coastal Oregon and 
coastal northern California, but the species has not recently been 
detected throughout much of the historical range, despite extensive 
surveys. The species currently exists in four small (<100) populations 
and is absent from the northern and southern ends of its historical 
range. This current range is approximately 7.3 percent of its known 
historical range, with two populations in Oregon and two populations in 
California. The species has been extirpated from Sonoma and Mendocino 
Counties, CA, and largely from Humboldt, Del Norte, and Siskiyou 
Counties, CA. In Oregon, coastal martens have been largely extirpated 
from much of the inland counties within the historical range and are 
known to currently occur in Coos, Curry, Josephine, Douglas, Lane, and 
Lincoln Counties.
    We have assessed the coastal marten's levels of resiliency, 
redundancy, and representation currently and into the future by first 
ranking the condition of each population. We ranked the four 
populations into three categories (high, moderate, and low) based on 
key population factors and habitat elements: Three between-population 
factors (least-cost path distance, filters, and number of populations 
in proximity) and four within-population factors (population size, 
available male home ranges, available female home ranges, and 
proportion of habitat subject to high predation risk). Least-cost path 
distance describes the distance a marten must travel for dispersal 
needs in order to reach the next closest population. Filters are 
barriers to this movement and can be either natural or manmade, such as 
large rivers or highways. This analysis provided condition categories 
to describe the resiliency of each population. A summary of this 
analysis is provided in Table 1.
    Maintaining representation in the form of genetic or ecological 
diversity is important to maintain the coastal marten's capacity to 
adapt to future environmental changes. We consider the coastal marten 
to have representation in the form of two different ecological 
settings. Some animals are adapted to the dunes ecosystems of coastal 
dune forest, and others are adapted to late-seral forest and serpentine 
ridges. One population represents the dune ecological setting, and 
three represent the forest and serpentine ecological settings. Genetic 
variation between populations is unknown at this time, as no studies 
have been conducted to determine the degree of genetic variation 
between the four populations.
    The coastal marten needs to have multiple resilient populations 
distributed throughout its range to provide for redundancy. The more 
populations, and the wider the distribution of those populations, the 
more redundancy the species exhibits. Based on the distributions of 
current verifiable marten detections and adjacent suitable habitat, we 
identified four extant population areas (EPAs) within coastal Oregon 
and northern coastal California:
    (1) Central Coastal Oregon Extant Population Area;
    (2) Southern Coastal Oregon Extant Population Area;
    (3) Oregon-California Border Extant Population Area; and
    (4) Northern Coastal California Extant Population Area.
    Additional detections of coastal martens have occurred outside of 
the current EPAs but they did not meet the criteria of a population 
(most likely, they represent transient individuals in search of new 
territories) according to methods used in the Humboldt Marten 
Conservation Strategy and Assessment, a synthesis of literature on 
marten ecology developed by the Humboldt Marten Conservation Group. 
This group is made of State, Federal, Tribal, private, and non-
governmental organizations in coastal Oregon and northwestern 
California to conserve and manage coastal martens.

                                                                        Table 1--Resiliency of Coastal Marten Populations
                                                        [Data used to assign categories are included for each population and each factor]
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                                                  Between-population factors                                                       Within-population factors
                                 ---------------------------------------------------------------------------------------------------------------------------------------------------------------
Population (quantity of suitable                                               Number of                                                                     Proportion of
  habitat out of minimum convex     Least-cost path                         populations in                             Number of           Number of       suitable habitat     Overall current
            polygon)               distance through    Number of filters    proximity (6-45     Population Size     available male     available female     that allows for        condition
                                   suitable habitat                               km)                                 home ranges         home ranges     predator avoidance
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Central Coastal Oregon--62 km\2\/ Low, 201 km.......  Low, >1...........  Low, 0............  Low, 71...........  Low, 30...........  Low, 44...........  Low, 15%..........  Low.
 403 km\2\.
Southern Coastal Oregon--1,103    Low, 65 km........  Low, >1...........  Low, 0............  Low, 12-<100......  High, 276-368.....  High, 173-230.....  Moderate, 65%.....  Low.
 km\2\/2,420 km\2\.

[[Page 50577]]

 
CA-OR Border--56 km\2\/206 km\2\  High, 14 km.......  Moderate, 1.......  Moderate, 1.......  Low, 12-<100......  Low, 14-19........  Low, 7-9..........  High, 82%.........  Low-Moderate.
Northern Coastal CA--704 km\2\/   High, 14 km.......  Moderate, 1.......  Moderate, 1.......  Low, 80-100.......  High, 176-235.....  Moderate, 96-128..  Moderate, 52%.....  Moderate.
 1,170 km\2\.
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    Our analysis of the past, current, and future influences on what 
the coastal marten needs for long-term viability revealed that two 
factors pose the largest risk to future viability of the species. These 
risks are primarily related to habitat loss and associated changes in 
habitat quality and distribution and include: (1) A decrease in 
connectivity between populations; and (2) habitat conversion from that 
suitable for martens to that suitable for generalist predators and 
competitors, thereby increasing potential interactions and subsequent 
marten injury, mortality, or predation. These factors are all 
influenced by vegetation management, wildfire, and changing climate.
    Predation of martens (Factor B) has increased due to the changes in 
forest composition. Bobcats are their predominant predator, with 
predation accounting for 41 percent of marten mortalities in one study, 
and the sources of all those predations being bobcat. Bobcats prefer 
regenerating harvested stands less than 30 years old, and are nearly 
absent from older forests, the preferred marten habitat. Martens are 
vulnerable to predation and increased competition in habitats that have 
been subject to either high-moderate severity fires or intensive 
logging in the last 40 years because both of these events remove the 
structural characteristics of the landscape that provide escape cover 
and are important to marten viability (canopy cover, shrub cover, 
etc.). These older forests have declined substantially from historical 
amounts: Older forests historically encompassed >75 percent of the 
coastal California area, 50 percent of the Klamath and Siskiyou region 
in northern California and southwest Oregon, and 25 to 85 percent of 
the Oregon Coast Range. Remaining older forests in the redwood region, 
Oregon Coast Range, and Klamath-Siskiyou region is estimated around 5, 
20, and 38 percent, respectively, of what occurred historically.
    In addition to logging, fires are a regular occurrence where the 
southern 3 marten populations occur; between 2000 and 2014, 
approximately 17 percent of the suitable habitat in the north coastal 
California population was burned. In the California--Oregon border 
population area, roughly 12 percent of suitable habitat was burned in 
the Longwood Fire of 1987. Substantial amounts of marten habitat in a 
population area can be burned in single fire events or over a few years 
at varying severities. Climate change is projected to result in longer 
fire seasons, producing more and larger fires. Fires large enough to 
totally encompass all or most of all four individual population areas 
are already occurring and are expected to increase, raising concern 
over the resiliency of at least the three southern marten population 
areas, which have been most affected by recent fires and are in a fire 
regime particularly vulnerable to future fires.
    Dispersal is the means by which marten populations maintain and 
expand their distribution. Successful dispersal functional habitat 
between patches of habitat suitable for reproduction to maintain or 
expand population size and distribution. A resilient coastal marten 
population would have suitable habitat between populations that 
provides important habitat for key prey, abundant daily resting sites, 
and a maximum distance within the range of their average dispersal 
distance. Both Oregon populations do not have functional connectivity 
to any other population and if a stochastic or catastrophic event 
eliminated either of them, natural recolonization would not be 
feasible. The two California populations have connectivity to one 
another but not the Oregon populations.
    In addition to being mostly isolated, all four populations are 
relatively small and face other threats in addition to habitat loss. 
Since 1980, 19 mortalities of coastal martens caused by vehicles 
(Factor E) have been documented, all in Oregon and mostly along U.S. 
Highway 101. We expect that some unknown amount of marten roadkills go 
undetected, so this is likely an underestimate of the number of martens 
killed by cars. Exposure to rodenticides (Factor E) through direct 
ingestion or the consumption of exposed prey has lethal and sub-lethal 
effects on coastal martens. Illegal marijuana cultivation sites on 
public, tribal, and private forest lands are implicated as the likely 
source of these rodenticides. In a similar carnivore species, 85% of 
carcasses tested were exposed to rodenticides, with the exposure in 13% 
being the direct cause of death.
    Certain diseases (Factor C) are also a concern to martens and other 
carnivore populations, including canine distemper viruses (CDV), rabies 
viruses, parvoviruses, and the protozoan (single-celled organism) 
Toxoplasma gondii. We acknowledge that there has been limited testing 
of coastal martens for the presence of pathogens or exposure to 
pathogens, but exposure levels and ultimate effect on populations are 
difficult to document until an outbreak is actually observed. While 
larger populations might display a mass mortality as a result of 
disease infections, extinction or extirpation is rare. With population 
sizes estimated at less than 100 each for all four coastal marten 
populations, an outbreak in an individual population puts it at a 
higher risk for extirpation, particularly when diseases act 
synergistically with other threats.
    The coastal marten faces a variety of risks including loss of 
habitat, wildfire, and increased predation risk. These risks play a 
large role in the resiliency and future viability of the coastal 
marten. Given the uncertainty regarding connectivity between 
populations, suitable habitat, and increases in predation within the 
populations, we forecasted what the coastal marten may have in terms of 
resiliency, redundancy, and representation under three plausible future 
scenarios. All three scenarios were forecast out over the next 15, 30, 
and 60 years. A range of

[[Page 50578]]

timeframes with a multitude of possible scenarios allows us to create a 
``risk profile'' for the coastal marten and its viability into the 
future. Scenario 1 evaluates the future condition of the coastal marten 
if there is no change in trends in threats to the populations from what 
exists today, while the other two scenarios evaluate the response of 
the species to increases or decreases in the major factors that are 
influencing marten viability. While we do not expect every condition 
for each scenario to be realized, we are using these scenarios to bound 
the range of possibilities. Scenarios 2 and 3 are considered the 
``outside bounds'' for the range of potential plausible future 
conditions. For each scenario we describe the stressors that would 
occur in each population. We use the best available science to predict 
trends in future stressors (timber harvest, wildfire, etc.). Data 
availability varies across States and populations. Where data on future 
trends is not available, we look to past trends and evaluate if it is 
reasonable to assume these trends will continue. The results of the 
analysis of resiliency in our plausible future scenarios are described 
in further detail in the SSA report and summarized in Table 2.

                        Table 2--Coastal Marten Population Conditions Under Each Scenario
----------------------------------------------------------------------------------------------------------------
                                  Current        Years into
         Population              condition       the future       Scenario 1       Scenario 2       Scenario 3
----------------------------------------------------------------------------------------------------------------
Central Oregon..............  Low............              15  Low............  Low............  Low.
                                                           30  Low............  Low............  Low-0.
                                                           60  Low-0 *........  Low............  Low-0
Southern Oregon.............  Low............              15  Low............  Low............  Low.
                                                           30  Low............  Low............  Low.
                                                           60  Low............  Low............  Low.
CA-OR Border................  Low-Mod........              15  Low-Mod........  Low-Mod........  Low-Mod.
                                                           30  Low-Mod........  Low-Mod........  Low-Mod.
                                                           60  Low-Mod........  Low-Mod........  Low-Mod.
Northern Coastal California.  Moderate.......              15  Moderate.......  Moderate.......  Moderate.
                                                           30  Moderate.......  Mod-High.......  Moderate.
                                                           60  Low-Mod........  Mod-High.......  Low-Mod.
----------------------------------------------------------------------------------------------------------------
* 0 = extirpated.

Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations in title 50 of the Code of Federal Regulations (at 50 CFR 
part 424), set forth the procedures for adding species to the Federal 
Lists of Endangered and Threatened Wildlife and Plants. Under section 
4(a)(1) of the Act, we may list a species based on (A) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (B) Overutilization for commercial, recreational, scientific, or 
educational purposes; (C) Disease or predation; (D) The inadequacy of 
existing regulatory mechanisms; or (E) Other natural or manmade factors 
affecting its continued existence.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the coastal marten. The Act defines an endangered species as any 
species that is ``in danger of extinction throughout all or a 
significant portion of its range'' and a threatened species as any 
species ``which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' A species may be determined to be an endangered or threatened 
species due to one or more of the five factors described in section 
4(a)(1) of the Act, either singly or in combination. A thorough 
analysis and discussion of the threats that may impact the coastal 
marten are included in the final SSA report (Service 2018, entire) 
associated with this document, and here we apply those threats to the 
statutory listing criteria to which they apply. We considered whether 
the coastal marten is presently in danger of extinction and determined 
that proposing endangered status is not appropriate. While threats are 
currently acting on the species and many of those threats are expected 
to continue into the future (see below), we did not find that the 
species is currently in danger of extinction throughout all of its 
range. With four populations occurring across the range of the species, 
the current condition of the species still provides for enough 
resiliency, redundancy, and representation such that it is not at risk 
of extinction now.
    However, estimates of future resiliency, redundancy, and 
representation for the coastal marten are low. As discussed in greater 
detail in the SSA, the species faces a variety of threats including 
loss of habitat (Factor A) due to wildfire, timber harvest, and 
vegetation management. Trapping (Factor B), collisions with vehicles 
(Factor E), and rodenticides (Factor E) are all impacting marten 
individuals, and the threat of disease (Factor C) carries the risk of 
further reducing populations. Changes in vegetation composition and 
distribution have also made coastal martens more susceptible to 
predation (Factor C) from larger carnivores. These threats, which are 
expected to be exacerbated by the species' small and isolated 
populations (Factor E) and the effects of climate change (Factor E), 
were central to our assessment of the future viability of the coastal 
marten.
    Given current and future decreases in resiliency, populations will 
become more vulnerable to extirpation from stochastic events, in turn, 
resulting in concurrent losses in representation and redundancy. The 
range of plausible future scenarios for coastal marten predicts 
decreased resiliency in all four currently extant populations. Under 
most modeled scenarios, the species is likely to lose enough 
resiliency, redundancy, and representation such that it is at risk of 
not being viable. All three scenarios presented as representative of 
plausible future scenarios create conditions where the coastal marten 
would not have enough resiliency, redundancy, or representation to 
sustain populations over time. While determining the probability of 
each scenario was not possible with the available data, the entire risk 
profile that was provided by looking across the range of the three 
plausible scenarios showed that the species will likely continue to 
lose resiliency, redundancy, and representation throughout the range in 
all scenarios.
    In short, our analysis of the species' current and future 
conditions, including

[[Page 50579]]

the impact of the factors described in section 4(a)(1) of the Act, as 
well as the conservation efforts discussed below, show that the 
between-population and within-population factors used to determine the 
resiliency, representation, and redundancy for the species will 
continue to decline over the next 15-60 years. Consequently, the 
species is likely to become in danger of extinction throughout its 
range within the foreseeable future. We chose 15 years as a temporal 
extant for assessing the impact of stressors to marten populations in 
the near term because it is roughly the length of three marten 
generations and is a recommended timeframe established by the 
International Union for Conservation of Nature. We chose the two longer 
periods of 30 and 60 years as multiples of generation length (6 and 12 
marten generations, respectively) and to provide a longer temporal 
extant to assess the threat of wildfire and climate change based on 
availability of wildfire data and climate models.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Because we have determined that the 
coastal marten is likely to become an endangered species within the 
foreseeable future throughout its range, we find it unnecessary to 
proceed to an evaluation of potentially significant portions of the 
range. Where the best available information allows the Services to 
determine a status for the species rangewide, that determination should 
be given conclusive weight because a rangewide determination of status 
more accurately reflects the species' degree of imperilment and better 
promotes the purposes of the statute. Under this reading, we should 
first consider whether listing is appropriate based on a rangewide 
analysis and proceed to conduct a ``significant portion of its range'' 
analysis if, and only if, a species does not qualify for listing as 
either endangered or threatened according to the ``all'' language. We 
note that the court in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not 
address this issue, and our conclusion is therefore consistent with the 
opinion in that case.
    Therefore, on the basis of the best available scientific and 
commercial information and in accordance with sections 3(6) and 4(a)(1) 
of the Act, we propose adding the coastal marten as a threatened 
species to the List of Endangered and Threatened Wildlife at 50 CFR 
17.11(h).

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
downlisting or delisting, and methods for monitoring recovery progress. 
Recovery plans also establish a framework for agencies to coordinate 
their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our website (http://www.fws.gov/endangered), or from our Arcata Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands. 
If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of California and Oregon 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the coastal marten. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    Although the coastal marten is only proposed for listing under the 
Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to

[[Page 50580]]

jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
must enter into consultation with the Service.
    Several Federal agency actions that occur within the species' 
habitat may require conference or consultation or both as described in 
the preceding paragraph. These actions include management and any other 
landscape-altering activities on lands administered by the Service and 
the Department of the Interior's Bureau of Indian Affairs, Bureau of 
Land Management, and National Park Service and the Department of 
Agriculture's U.S. Forest Service; issuance of section 404 Clean Water 
Act permits by the U.S. Army Corps of Engineers; and construction and 
maintenance of roads or highways by the Department of Transportation's 
Federal Highway Administration or the California Department of 
Transportation (Cal Trans).

Provisions of Section 4(d) of the Act

    Under section 4(d) of the Act, the Secretary of the Interior has 
the discretion to issue such regulations as he deems necessary and 
advisable to provide for the conservation of threatened species. The 
Secretary also has the discretion to prohibit by regulation with 
respect to any threatened species of fish or wildlife any act 
prohibited under section 9(a)(1) of the Act. The prohibitions of 
section 9(a)(1) of the Act make it illegal for any person subject to 
the jurisdiction of the United States to take (which includes harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or 
to attempt any of these) endangered species of fish or wildlife within 
the United States or on the high seas. In addition, it is unlawful to 
import; export; deliver, receive, carry, transport, or ship in 
interstate or foreign commerce in the course of commercial activity; or 
sell or offer for sale in interstate or foreign commerce any endangered 
fish or wildlife species. It is also illegal to possess, sell, deliver, 
carry, transport, or ship any such wildlife or fish that has been taken 
illegally. To the extent the section 9(a)(1) prohibitions apply only to 
endangered species, this proposed rule would apply those same 
prohibitions to the coastal marten with some exceptions, in accordance 
with section 4(d) of the Act.
    The courts have recognized the extent of the Secretary's discretion 
to develop prohibitions, as well as exclusions from those prohibitions, 
that are appropriate for the conservation of a species. For example, 
the Secretary may decide not to prohibit take, or to put in place only 
limited take prohibitions. See Alsea Valley Alliance v. Lautenbacher, 
2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental 
Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 
5432 (W.D. Wash. 2002). In addition, as affirmed in State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988), the protective regulation for 
a species need not address all the threats to the species. As noted by 
Congress when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to him with regard to the permitted activities for those 
species.'' He may, for example, ``permit taking, but not importation of 
such species,'' or he may choose to forbid both taking and importation 
but allow the transportation of such species, as long as the measures 
will ``serve to conserve, protect, or restore the species concerned in 
accordance with the purposes of the Act'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).

Proposed 4(d) Rule for the Coastal Marten

    Under this proposed section 4(d) rule, except as noted below, all 
prohibitions and provisions of section 9(a)(1) would apply to the 
coastal marten. The following management activities would not be 
subject to the general prohibitions of section 9(a)(1):
    (1) Forestry management activities for the purposes of reducing the 
risk or severity of wildfire, such as fuels reduction projects, fire 
breaks, and wildfire firefighting activities.
    (2) Forestry management activities included in a State-approved 
plan or agreement for lands covered by a Natural Communities 
Conservation Plan, Habitat Management Agreement, or Safe Harbor 
Agreement that addresses coastal marten as a covered species and is 
approved by the California Department of Fish and Wildlife under the 
authority of the California Endangered Species Act.
    (3) Forestry management activities consistent with the conservation 
needs of the coastal marten. These include activities consistent with 
formal approved conservation plans or strategies, such as Federal or 
State plans and documents that include coastal marten conservation 
prescriptions or compliance, and for which the Service has determined 
that meeting such plans or strategies, or portions thereof, would be 
consistent with this proposed rule.
    Although these management activities may result in some minimal 
level of harm or temporary disturbance to the coastal marten, overall, 
these activities benefit the subspecies by contributing to conservation 
and recovery. With adherence to the limitations described in the 
preceding paragraphs, these activities will have a net beneficial 
effect on the species by encouraging active forest management that 
creates and maintains the complex tree and shrub conditions needed to 
support the persistence of marten populations, which is essential to 
the species' long-term viability and conservation.
    These provisions are necessary because, absent the protections of 
the Act, the species is likely to become in danger of extinction in the 
foreseeable future. Applying the prohibitions of the Act will minimize 
threats that could cause further declines in the status of the species. 
Additionally, these provisions are advisable because the species needs 
active conservation to maintain or improve the quality of its habitat, 
and to sustain and expand the species' population and occupied range. 
By exempting some of the forestry management activities from the 
prohibitions, these provisions can encourage cooperation by landowners 
and other affected parties in implementing conservation measures that 
will maintain or enhance habitat and expand the population of the 
species and its occupied range. These provisions will allow for use of 
the land while at the same time ensuring the maintenance or enhancement 
of suitable habitat and minimizing impacts to the species.
    For activities funded, permitted, or carried out by a Federal 
agency that are not covered by the provisions and that may result in 
take, the Federal agency with jurisdiction would need to ensure, in 
consultation with the Service, that the activities are not likely to 
jeopardize the continued existence of the species. Private citizens who 
would like to have coverage for take resulting from activities not 
covered by these provisions may wish to seek an incidental take permit 
from the Service before proceeding with the activity (if there is no 
Federal nexus).
    Based on the explanations above, the prohibitions under section 
9(a)(1) would apply to the coastal marten throughout its range, with 
specific exemptions tailored to the conservation of the species. 
Nothing in this proposed 4(d) rule would change in any way the recovery 
planning provisions of section 4(f) and consultation requirements under 
section 7 of the Act or the ability of the Service to enter into 
partnerships

[[Page 50581]]

for the management and protection of the coastal marten.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Arcata 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations in 50 CFR 424.12, require that, to the maximum extent 
prudent and determinable, we designate critical habitat at the time the 
species is determined to be an endangered or threatened species. 
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 provisions of 
section 4 of this 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 in accordance with the provisions of 
section 4 of this Act, upon a determination by the Secretary of the 
Interior that such areas are essential for the conservation of the 
species.
    Our regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when any of the following situations 
exist: (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species. The regulations also 
provide that, in determining whether a designation of critical habitat 
would not be beneficial to the species, the factors that the Service 
may consider include but are not limited to: Whether the present or 
threatened destruction, modification, or curtailment of a species' 
habitat or range is not a threat to the species, or whether any areas 
meet the definition of ``critical habitat'' (50 CFR 424.12(a)(1)(ii)).
    We do not know of any imminent threat of take attributed to 
collection or vandalism for the coastal marten. The available 
information does not indicate that identification and mapping of 
critical habitat is likely to initiate any threat of collection or 
vandalism. Therefore, in the absence of finding that the designation of 
critical habitat would increase threats to the species, if there are 
benefits to the species from a critical habitat designation, a finding 
that designation is prudent is appropriate.
    The potential benefits of designation may include: (1) Triggering 
consultation under section 7 of the Act, in new areas for actions in 
which there may be a Federal nexus where it would not otherwise occur 
because, for example, it is unoccupied; (2) focusing conservation 
activities on the most essential features and areas; (3) providing 
educational benefits to State or county governments or private 
entities; and (4) preventing people from causing inadvertent harm to 
the protected species. Because designation of critical habitat would 
not likely increase the degree of threat to the coastal marten and may 
provide some measure of benefit, designation of critical habitat may be 
prudent for the coastal marten.
    Our regulations (50 CFR 424.12(a)(2)) further state that critical 
habitat is not determinable when one or both of the following 
situations exists: (1) Information sufficient to perform required 
analysis of the impacts of the designation is lacking; or (2) the 
biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat. A careful 
assessment of the economic impacts that may occur due to a critical 
habitat designation is still ongoing, and we are in the process of 
working with the States and other partners in acquiring the complex 
information needed to perform that assessment. The information 
sufficient to perform a required analysis of the impacts of the 
designation is lacking, and, therefore, we find designation of critical 
habitat for the coastal marten to be not determinable at this time.

Required Determinations

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.

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

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. In development of the SSA, we sent 
letters noting our intent to conduct a status review and requested 
information from all tribal entities within the historical range of the 
coastal DPS of the Pacific marten, as well as providing a draft SSA 
Report to the Yurok Tribe for review. As we move forward in this 
listing process, we will continue to consult on a government-to-
government basis with tribes as necessary.

Authors

    The primary authors of this proposed rule are the staff members of 
the Service's Species Assessment Team, with assistance from the Arcata

[[Page 50582]]

Ecological Services Field Office and the Portland Ecological Services 
Field 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

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. Amend Sec.  17.11(h) by adding an entry for ``Marten, Pacific 
(coastal DPS)'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under MAMMALS to read as set forth below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                       Listing citations and
         Common name            Scientific name    Where listed        Status            applicable rules
----------------------------------------------------------------------------------------------------------------
                                                     Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Marten, Pacific (coastal DPS)  Martes caurina..  Wherever found..  T............  [Federal Register citation
                                                                                   when published as a final
                                                                                   rule], 50 CFR 17.40(s).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
0
3. Amend Sec.  17.40 by adding paragraph (s) to read as set forth 
below:


Sec.  17.40  Special rules--mammals.

* * * * *
    (s) Coastal marten (Martes caurina).--(1) Prohibitions. Except as 
noted in paragraph (a)(2) of this section, all prohibitions and 
provisions of section 9(a)(1) of the Act apply to the coastal marten.
    (2) Exceptions from prohibitions. Incidental take of the coastal 
marten will not be considered a violation of the Act if the take 
results from any of the following activities:
    (i) Forestry management activities for the purposes of reducing the 
risk or severity of wildfire, such as fuels reduction projects, fire 
breaks, and wildfire firefighting activities.
    (ii) Forestry management activities included in a State-approved 
plan or agreement for lands covered by a Natural Communities 
Conservation Plan, Habitat Management Agreement, or Safe Harbor 
Agreement that addresses coastal marten as a covered species and is 
approved by the California Department of Fish and Wildlife under the 
authority of the California Endangered Species Act.
    (iii) Forestry management activities consistent with the 
conservation needs of the coastal marten. These include activities 
consistent with formal approved conservation plans or strategies, such 
as Federal or State plans and documents that include coastal marten 
conservation prescriptions or compliance, and for which the Service has 
determined that meeting such plans or strategies, or portions thereof, 
would be consistent with this rule.
* * * * *

James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-21794 Filed 10-5-18; 8:45 am]
BILLING CODE 4333-15-P