[Federal Register Volume 84, Number 216 (Thursday, November 7, 2019)]
[Proposed Rules]
[Pages 60278-60305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23737]



[[Page 60277]]

Vol. 84

Thursday,

No. 216

November 7, 2019

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for West Coast Distinct Population Segment of Fisher With 
Section 4(d) Rule; Proposed Rule

  Federal Register / Vol. 84 , No. 216 / Thursday, November 7, 2019 / 
Proposed Rules  

[[Page 60278]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2018-0105; 4500030113]
RIN 1018-BD85


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for West Coast Distinct Population Segment of Fisher With 
Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Revised proposed rule; availability of proposed section 4(d) 
rule; and reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), notify the 
public that we are making changes to our October 7, 2014, proposed rule 
to list the West Coast Distinct Population Segment (DPS) of fisher 
(Pekania pennanti) as a threatened species under the Endangered Species 
Act (Act). Based on new information since 2014 and a reconsideration of 
the best available information in our files (including all comments 
received to date), we are revising the proposed rule to list the DPS as 
a threatened species under the Act. We also propose a concurrent rule 
under section 4(d) of the Act for this DPS. We are reopening the 
comment period to allow comments on the new information presented in 
this document relevant to the changes and proposed 4(d) rule described 
below. If we finalize this listing rule as proposed, it would extend 
the Act's protections to this DPS and, accordingly, add this DPS to the 
List of Endangered and Threatened Wildlife.

DATES: We will accept comments received or postmarked on or before 
December 9, 2019. 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 time on this date. We must 
receive requests for public hearings, in writing, at the address shown 
in FOR FURTHER INFORMATION CONTACT by December 23, 2019.

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-2018-0105, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment Now!'' Please ensure that you have found the 
correct rulemaking before submitting your comment.
    (2) By hard copy: Submit by U.S. mail or hand delivery to: Public 
Comments Processing, Attn: Docket No. FWS-R8-ES-2018-0105; U.S. Fish 
and Wildlife Service, MS: JAO/1N, 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). See Information Requested, below, 
for more information on submitting comments on the proposed rule.
    Document availability: The revised proposed rule is available on 
http://www.regulations.gov at Docket No. FWS-R8-ES-2018-0105 and on our 
website at https://www.fws.gov/Yreka. Comments and materials we 
received during previous comment periods for the preceding proposed 
rule, as well as supporting documentation we used in preparing the 
preceding proposed rule, are also available for public inspection at 
Docket No. FWS-R8-ES-2014-0041. In addition, the supporting files for 
this revised proposed rule will be available for public inspection, by 
appointment, during normal business hours, at our Yreka Fish and 
Wildlife Office, 1829 South Oregon Street, Yreka, CA 96097; telephone 
530-842-5763.

FOR FURTHER INFORMATION CONTACT: Jenny Ericson, Field Supervisor, Yreka 
Fish and Wildlife Office, telephone: 530-842-5763. Direct all questions 
or requests for additional information to: WEST COAST DPS FISHER 
QUESTIONS, U.S. Fish and Wildlife Service, Yreka Fish and Wildlife 
Office, 1829 South Oregon Street, Yreka, CA 96097. Persons who use a 
telecommunications device for the deaf may call the Federal Relay 
Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species may be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. To the maximum extent prudent and determinable, 
we must designate critical habitat for any species that we determine to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designation of critical 
habitat can only be completed by issuing a rule.
    What this document does. This document revises the proposed rule to 
add the West Coast DPS of fisher (Pekania pennanti) as a threatened 
species to the List of Endangered and Threatened Wildlife in title 50 
of the Code of Federal Regulations at 50 CFR 17.11(h) and proposes a 
rule under section 4(d) of the Act (a ``4(d) rule'').
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any of five 
factors: (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 determined that the threats to the West 
Coast DPS of fisher are loss and fragmentation of habitat resulting 
from high-severity wildfire and wildfire suppression (i.e., loss of 
snags and other large habitat structures on which the species relies, 
which are removed for human safety concerns), climate change, forest 
insects and tree diseases, and vegetation management; and potential 
direct impacts to individuals (e.g., increased mortality, decreased 
reproductive rates, increased stress/hormone levels, alterations in 
behavioral patterns) from wildfire, increased temperatures resulting 
from climate change, disease and predation, exposure to toxicants, and 
potential effects associated with small population size. These factors 
are resulting in a cumulative effect to such a degree that the best 
available information indicates the West Coast DPS of fisher meets the 
definition of a threatened species.
    Peer review. In accordance with our joint policy on peer review 
published in the Federal Register on July 1, 1994 (59 FR 34270), we 
sought the expert opinions of multiple appropriate specialists on the 
2014 draft Species Report to ensure that our decisions are based on 
scientifically sound data, assumptions, and analyses. Information 
received has been incorporated into the final (2016) Species Report and 
this revised proposed rule. Because we will consider all comments and 
information received during the comment period, our final determination 
may differ from

[[Page 60279]]

this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species is 
endangered instead of threatened, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species. Such final decisions would be a logical outgrowth 
of this proposal as long as we: (a) Base the decisions on the best 
scientific and commercial data available after considering all of the 
relevant factors; (2) do not rely on factors Congress has not intended 
us to consider; and (3) articulate a rational connection between the 
facts found and the conclusions made, including why we changed our 
conclusion.

Information Requested

    We will accept written comments and information during this 
reopened comment period on our revised proposed listing for the West 
Coast DPS of fisher. We will consider information and recommendations 
from all interested parties. We intend that any final action resulting 
from this revised proposal be as accurate as possible and based on the 
best available scientific and commercial data.
    We are particularly interested in new information and comments 
regarding:
    (1) Information related to anticoagulant and neurotoxicant 
rodenticides, and other toxicants, including law enforcement 
information and trend data.
    (2) Information regarding population trend studies or data for the 
West Coast DPS of fisher, including information regarding areas that 
have been surveyed compared to areas that have not been surveyed, as 
well as all positive and negative survey results to help us assess 
distribution and population trends.
    (3) Information regarding the threat of wildfire, including studies 
or information pertaining to current and future trends in wildfire 
frequency and severity, as well as information pertaining to the 
immediate response of fishers to post-fire landscapes in the West Coast 
DPS of fisher.
    (4) Information regarding changes in low- to mid-elevation forests 
in different eco-regions within the range of the West Coast DPS of 
fisher, including scope and severity of vegetation management on 
Federal and non-Federal lands.
    (5) Information regarding any effects associated with population 
size and isolation relevant to the West Coast DPS of fisher (e.g., low 
reproductive capacity, inbreeding depression, demographic and 
environmental stochasticity).
    (6) Information regarding any effects of ongoing and widespread 
tree mortality in the Sierra Nevada range on the West Coast DPS of 
fisher.
    (7) Information regarding any conservation efforts designed to 
benefit the West Coast DPS of fisher that have been planned or 
implemented since the October 7, 2014, proposed rule.
    (8) Information regarding our revised DPS determination.
    (9) Information on regulations that are necessary and advisable for 
the conservation of the West Coast DPS of fisher to include in a 
section 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.
    (10) 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 information to inform the following factors such that a 
designation of critical habitat may be determined to be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (d) No areas meet the definition of critical habitat;
    (11) Specific information on:
    (a) The amount and distribution of habitat for the West Coast DPS 
of fisher,
    (b) What areas, that are considered occupied at the time of listing 
and that contain the physical or biological features essential to the 
conservation of the species, should be included in the designation and 
why,
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we may propose, 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. We particularly seek comments 
regarding:
    (i) Whether occupied areas are inadequate for the conservation of 
the species; and,
    (ii) Specific information that may support a determination that 
unoccupied areas will, with reasonable certainty, contribute to the 
conservation of the species and, contain at least one physical or 
biological feature essential to the conservation of the species.
    (12) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in a proposed and 
final designation, and the benefits of including or excluding areas 
that may be impacted.
    As indicated under SUMMARY, above, if you previously submitted 
comments or information on the October 7, 2014, proposed rule, please 
do not resubmit them. We have incorporated previously submitted 
comments into the public record, and we will fully consider them in the 
preparation of our final determination. Our final determination 
concerning this revised proposed listing will take into consideration 
all written comments and any additional information we have received 
since April 18, 2016 (81 FR 22710).
    You may submit your comments and materials concerning the revised 
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.

Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests for public hearings must be 
received by the date specified in DATES at 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

[[Page 60280]]

Register and local newspapers at least 15 days before the hearing.

Previous Federal Actions

    We first found the West Coast DPS of fisher (previously delineated 
as a contiguous area encompassing parts of the three States of 
Washington, Oregon, and California) to be warranted for listing in 2004 
and each subsequent year in the annual Candidate Notice of Review. On 
October 7, 2014, we proposed to list the West Coast DPS of fisher as a 
threatened species under the Endangered Species Act of 1973, as amended 
(Act; 16 U.S.C. 1531 et seq.) (79 FR 60419; Docket No. FWS-R8-ES-2014-
0041). On April 18, 2016, we withdrew the proposed rule to list the 
West Coast DPS of fisher (81 FR 22710), concluding that the potential 
threats (stressors) acting upon the DPS were not of sufficient 
imminence, intensity, or magnitude to indicate that they were singly or 
cumulatively resulting in significant impacts at either the population 
or rangewide scales.
    On October 19, 2016, the Center for Biological Diversity, 
Environmental Protection Information Center, Klamath-Siskiyou Wildlands 
Center, and Sierra Forest Legacy filed a complaint for declaratory and 
injunctive relief, alleging that our determination on the West Coast 
DPS of fisher violated the Act. By Order Re: Summary Judgment issued on 
September 21, 2018, the District Court for the Northern District of 
California vacated the listing withdrawal and remanded the Service's 
final determination for reconsideration. The Court's amended order, 
dated November 20, 2018, directs the Service to prepare a new 
determination by September 21, 2019.
    On January 31, 2019, we reopened the comment period on the October 
7, 2014, proposed rule to list the DPS as a threatened species (84 FR 
644).
    On May 17, 2019, the District Court for the Northern District of 
California granted a request by the Service for a 35-day extension to 
comply with the November 20, 2018, order as a result of delays due to 
the Federal Government's lapse in appropriations that prohibited the 
Service from working on this determination. The Court's amended order 
directed the Service to submit for publication a final listing 
determination or notice of a revised proposed rule by October 26, 2019, 
and in the event of publishing a revised proposed rule, submit for 
publication a final listing determination by April 25, 2020.
    Additional information on Federal actions concerning the West Coast 
DPS of fisher prior to October 7, 2014, is outlined in the October 7, 
2014, proposed listing rule (79 FR 60419) (hereafter referred to as the 
2014 Proposed Rule).

Summary of Changes From the 2014 Proposed Rule

    In this revised proposed listing rule, we incorporate additional 
information regarding the fishers, their habitat, and threats 
potentially impacting the species or its habitat; make clarifications 
regarding the delineation of the DPS; include a proposed 4(d) rule; and 
provide some changes to the structure of the rule as they relate to our 
analysis and policy information. Specifically:
    (1) We have revised our delineation of the DPS for the West Coast 
population of fishers. In the 2014 Proposed Rule, we explained that the 
West Coast DPS encompassed the area where fishers historically occurred 
throughout western Washington, western Oregon, and California to the 
Sierra Nevada. We further elaborated that the West Coast DPS occurred 
in two original native populations (Northern California-Southwestern 
Oregon Population [NCSO] and the Southern Sierra Nevada Population 
[SSN]), three reintroduced populations (Northern Sierra Nevada 
Reintroduced Population [NSN] in California, Southern Oregon Cascades 
Reintroduced Population [SOC] in Oregon, and the Olympic Peninsula 
Reintroduced Population [ONP] in Washington). In this revised proposed 
listing rule, the West Coast DPS is now identified as comprising the 
two extant historically native subpopulations, NCSO and SSN, as well as 
the NSN and SOC subpopulations that resulted from reintroductions 
within a portion of the historical range of the DPS. Our decision to 
revise the DPS was predominantly based on: (a) The apparent absence of 
any extant historically native subpopulations in Washington or northern 
Oregon; and (b) the marked separation of the fisher subpopulations in 
the NCSO, SOC, NSN, and SSN from fishers reintroduced in Washington.
    (2) The structure of this revised proposed rule varies slightly 
from the 2014 Proposed Rule. Information is organized in roughly the 
same order, although new sections have been added or sections have been 
revised to accommodate new information received since 2014; we have 
also updated policy standards and added discussion where relevant 
(e.g., addition of a section on the DPS's resiliency, redundancy, and 
representation).
    (3) New information has been added to this revised proposed rule 
that was not available for the 2014 Proposed Rule or 2014 draft Species 
Report (Service 2014, entire). Our record also includes our 2016 final 
Species Report (Service 2016, entire).
    (4) At the time of the 2014 Proposed Rule, fisher populations in 
Oregon and California were identified and described as the historically 
native extant NCSO and SSN subpopulations, the NSN subpopulation 
established with fishers from the NCSO subpopulation, and the SOC 
subpopulation established with fishers from British Columbia and 
Minnesota populations. Since that time, the best available information 
indicates that the range of the NCSO subpopulation is adjacent to the 
range of the (reintroduced) SOC subpopulation, with documented 
interbreeding activity occurring in the SOC range (Pilgrim and Schwartz 
2016, entire; Pilgrim and Schwartz 2017, entire). Therefore, we 
determined it was appropriate to conduct our new evaluation of the 
status of the DPS by including the contribution of the SOC, along with 
the other three subpopulations (NCSO, SSN, and NSN), to the DPS's 
overall viability.
    (5) We added a proposed section 4(d) rule because we determined it 
was necessary and advisable to issue protective regulations in order to 
reduce the likelihood of the West Coast DPS of fisher becoming an 
endangered species. Under our proposed section 4(d) rule, with specific 
exceptions, all prohibitions and provisions that apply to endangered 
wildlife under section 9(a)(1) of the Act would apply to the DPS. The 
specific exceptions from prohibitions include forestry management 
activities for the purposes of reducing the risk or severity of 
wildfires, forestry management activities pursuant to an approved 
fisher conservation plan or strategy, forestry management activities 
that are consistent with the conservation needs of the fisher but are 
not specifically designed as fisher conservation plans or strategies, 
and management activities designed to identify and clean-up toxicant-
contaminated sites.

Distinct Population Segment Analysis

    Under section 3(16) of the Act, we may consider for listing any 
species, including subspecies, of fish, wildlife, or plants, or any DPS 
of vertebrate fish or wildlife that interbreeds when mature (16 U.S.C. 
1532(16)). Such entities are considered eligible for listing under the 
Act (and, therefore, are referred to as listable entities), should we 
determine that they meet the definition of an endangered or threatened 
species.
    Under the Service's DPS Policy, three elements are considered in 
the decision concerning the determination and classification of a 
possible DPS as

[[Page 60281]]

threatened or endangered. These elements include:
    (1) The discreteness of a population in relation to the remainder 
of the species to which it belongs;
    (2) The significance of the population segment to the species to 
which it belongs; and
    (3) The population segment's conservation status in relation to the 
Act's standards for listing, delisting, or reclassification (i.e., is 
the population segment endangered or threatened).
    In considering a DPS analysis for fisher involving the segment of 
the species' distribution that historically occupied suitable habitat 
in portions of the three Pacific Coast States (western Washington, 
western Oregon, and northern California and the Sierra Nevada mountain 
range, i.e., the West Coast range), we examined information in 
published range maps, published works that included historical 
occurrences, unpublished studies related to fisher distribution, and 
other submitted data, including comments received previously and during 
the most recent comment period (January 31, 2019; 84 FR 644). The 
historical distribution of fishers in this West Coast range is 
discussed in detail in the ``Prehistorical and Historical Distribution 
across the Range of the Species'' section of the final Species Report 
(Service 2016, pp. 25-26). As described above in Summary of Changes 
from the 2014 Proposed Rule, the current distribution of fishers in the 
West Coast range comprises various subpopulations, including several 
that had been established by introducing fishers taken from other parts 
of the species' range into areas in the West Coast range that supported 
fishers historically. These ``nonnative'' fishers, from British 
Columbia and Alberta, Canada, as well as from Minnesota, have 
established breeding populations in various parts of Washington 
(British Columbia- and Alberta-origin fishers) and southern Oregon 
(SOC; British Columbia- and Minnesota-origin fishers). These 
subpopulations of nonnative fishers in the West Coast range are in 
addition to the extant historically native subpopulations (NCSO and 
SSN) in southern Oregon and California. Therefore, while the West Coast 
range of fishers was historically occupied by fishers native to this 
region, it is now occupied both by fishers native to the three Pacific 
Coast States, as well as by fishers whose lineage was derived from 
nonnative fishers.
    Further examination of this distribution clarifies that the 
northern portion of the West Coast range, the State of Washington and 
the northern part of Oregon, appears unoccupied by any subpopulations 
of native fishers, but nonnative fishers reintroduced in the State of 
Washington continue to persist and reproduce in several areas (although 
it is too soon to conclude that these breeding individuals will 
persist). By contrast, the southern portion of the West Coast range 
(i.e., southern Oregon, northern California, and the southern Sierra 
Nevada) is predominantly occupied by subpopulations of native fishers. 
However, this southern portion of the range also includes the SOC 
subpopulation of reintroduced nonnative fishers, which has now been 
documented as interbreeding with native fishers of the NCSO (Pilgrim 
and Schwartz 2016, entire; Pilgrim and Schwartz 2017, entire).
    Our 2014 Proposed Rule represented our response to the petition 
that was filed seeking the listing of the West Coast DPS of fisher, 
consisting of fishers in Washington, Oregon, and California. At that 
time, we recognized that the West Coast DPS encompassed the area where 
fishers historically occurred throughout western Washington, western 
Oregon, and California to the Sierra Nevada. We are now proposing a 
different DPS based on the apparent absence of any extant, historically 
native subpopulations in Washington or northern Oregon, and the marked 
separation of the fisher subpopulations within the newly identified DPS 
to the fishers that have been reintroduced from British Columbia and 
Alberta into the Olympic National Park and the southern and northern 
Washington Cascades in Washington State. Based on this demographic and 
geographic disparity between the northern and southern portions of the 
range, coupled with the fact that there is currently no tangible 
connection between nonnative fishers in the northern portion and the 
native and nonnative fishers occupying the southern portion, we now 
have determined that the appropriate DPS to consider in this evaluation 
was the segment consisting of the southern subpopulations, i.e., NCSO, 
SSN, NSN, and SOC. Below, we summarize discreteness and significance 
for this DPS.

Discreteness

    Under the DPS policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either one of the following 
conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    The West Coast DPS of fisher is markedly separate from other North 
American fisher populations of the east by enormous distances, 
geographical barriers, unsuitable habitat, and urban development. 
Fishers in this DPS are separated from the Rocky Mountains and the rest 
of the taxon in the central and eastern United States by natural 
physical barriers including the nonforested high desert areas of the 
Great Basin in Nevada and eastern Oregon. Other physical barriers that 
separate the West Coast population from Rocky Mountain and eastern U.S. 
fisher populations include major highways, urban and rural open-
canopied areas, agricultural development, and other nonforested areas. 
In addition, all West Coast DPS subpopulations are markedly separate 
from the nearest other fisher populations to the north by approximately 
270 miles (mi) (430 kilometers (km)), well beyond the various reported 
dispersal distances (as described in more detail in Service 2016, pp. 
13-14). An additional component contributing to marked separation 
between the DPS subpopulations and fishers in Washington is the 
Columbia River and adjacent human developments (e.g., roads and towns), 
which likely acts as a physical impediment to crossing by any fishers 
dispersing in either direction. Therefore, it is extremely unlikely 
that any transient individuals from the DPS subpopulations could 
disperse far enough to reach the Washington range of reintroduced 
fishers, and even if they attempted to do so, they would likely not be 
able to cross the Columbia River. In summary, the subpopulations 
comprising the West Coast DPS of fisher are all geographically isolated 
from all other subpopulations of the species. Therefore, the marked 
separation condition for discreteness is met by geographical barriers, 
urban development, and distances that are beyond the known dispersal 
distance of fishers.

Significance

    If a population segment is considered discrete under one or more of 
the conditions described in the Service's DPS policy, its biological 
and ecological significance will be considered in light

[[Page 60282]]

of Congressional guidance that the authority to list DPSs be used 
``sparingly'' (see Senate Report 151, 96th Congress, 1st Session). In 
making this determination, we consider available scientific evidence of 
the DPS's importance to the taxon to which it belongs. Since precise 
circumstances are likely to vary considerably from case to case, the 
DPS policy does not describe all the classes of information that might 
be used in determining the biological and ecological importance of a 
discrete population. However, the DPS policy describes four possible 
classes of information that provide evidence of a population segment's 
biological and ecological importance to the taxon to which it belongs. 
As specified in the DPS policy (61 FR 4722, February 7, 1996), this 
consideration of the population segment's significance may include, but 
is not limited to, the following:
    (1) Persistence of the DPS in an ecological setting unusual or 
unique to the taxon;
    (2) Evidence that loss of the DPS would result in a significant gap 
in the range of a taxon;
    (3) Evidence that the DPS represents the only surviving natural 
occurrence of a taxon that may be more abundant elsewhere as an 
introduced population outside its historical range; or
    (4) Evidence that the DPS differs markedly from other populations 
of the species in its genetic characteristics.
    To be considered significant, a population segment needs to satisfy 
only one of these conditions, or other classes of information that 
might bear on the biological and ecological importance of a discrete 
population segment, as described in the DPS policy (61 FR 4722, 
February 7, 1996). For the fisher, we found that loss of the West Coast 
DPS would result in a significant gap in the range of the taxon. Losing 
the West Coast DPS would significantly impact representation of the 
species by shifting the southern boundary of the taxon approximately 
900 mi (1,448 km) to the north. Therefore, the significance element of 
the DPS policy is met for the West Coast DPS of fisher.

Summary of DPS Analysis

    Given that both the discreteness and significance elements of the 
DPS policy are met, we find that the West Coast DPS of fisher is a 
valid DPS, and therefore a listable entity under the Act. We now assess 
the DPS's conservation status in relation to the Act's standards for 
listing (i.e., whether this DPS meets the definition of an endangered 
or threatened species under the Act).

Background

    At the time of the 2014 Proposed Rule, a comprehensive draft 
Species Report (Service 2014, entire) was prepared that included new 
genetic and survey information. This report was subsequently updated in 
2016 with additional information related to taxonomy, habitat, life-
history characteristics (e.g., reproduction), habitat description, 
habitat use (e.g., dispersal and food habits), distribution and 
abundance, and potential threats across Washington, Oregon, and 
California (Service 2016, entire). Information related to the resources 
on which the species relies, conditions the species may experience 
currently or in the future, and threats (i.e., an activity or process 
that may have some negative effect on fishers or their habitat) are 
outlined in these reports and summarized herein where applicable. These 
reports, coupled with new information available since 2016 and our 
reconsideration of the best available scientific and commercial data, 
including comments received in connection with the 2014 Proposed Rule 
and our January 31, 2019 (84 FR 644), Federal Register document, 
provide the scientific basis that informs our regulatory decision 
regarding the range of the DPS, and whether the DPS should be listed as 
an endangered or threatened species under the Act. New information 
available since 2016 and the results of our reconsideration of the best 
available scientific and commercial information are presented in this 
revised proposed rule.

I. Revised Proposed Listing Determination

Species Information and Distribution

    The fisher is a medium-sized, light brown to dark blackish-brown 
mammal found only in North America, with the face, neck, and shoulders 
sometimes being slightly gray, and the chest and underside often having 
irregular white patches. The fisher is classified in the order 
Carnivora, family Mustelidae, which is a family that also includes 
weasels, mink, martens, and otters (Service 2016, p. 8). The occurrence 
of fishers at regional scales is consistently associated with low- to 
mid-elevation coniferous and mixed conifer and hardwood forests with 
characteristics of mid- and late-successional forests (e.g., diverse 
successional stages, moderate to dense forest canopies, large-diameter 
trees, coarse downed wood, and singular features of large snags, tree 
cavities, or deformed trees). Throughout their range, fishers are 
obligate users of tree or snag cavities for denning, and they select 
resting sites with a high proportion of characteristics of late-
successional forests. These characteristics are maintained and 
recruited in the forest through ecological processes such as fire, 
insect-related tree mortality, disease, and decay (e.g., Service 2016, 
pp. 64, 123-124).
    Fishers on the west coast of the continent have historically 
occurred in British Columbia, Washington, Oregon, and California. 
Fishers native to the west coast in the contiguous United States were 
historically well distributed in the habitats described above, from the 
State of Washington south through Oregon, and into northern California 
and the Sierra Nevada mountains. Subpopulations of these native fishers 
still occur in northern California/southwestern Oregon and the Sierra 
Nevada; however, populations of native fishers were extirpated from 
Washington (Lewis and Hayes 2004, p. 1) and northern Oregon (Aubry and 
Lewis 2003, pp. 81-82). Recent surveys in the northern Oregon Cascades 
yielded no fishers (Moriarty et al. 2016, entire), suggesting they 
remain absent in this area, whereas surveys in the southern Oregon 
Cascades suggest fisher range may be contracting to the south (Barry 
2018, pp. 22-23) relative to where we estimated the fisher's range to 
be in the southern Oregon Cascades in both 2014 and 2016 (Service 2014 
and 2016, entire). Fishers now occurring and reproducing in Washington 
were established using fishers translocated from outside this three-
State region. Fishers from British Columbia were reintroduced to the 
Olympic Peninsula from 2008 to 2010 (Happe et al. 2017, p. viii), and 
to the Washington Cascade Range south of Mt. Rainier from 2015 to 2017 
(Lewis et al. 2018, p. 5). Reproduction has been documented in both 
areas. Beginning in 2018, fishers from Alberta were released in the 
northern Washington Cascades in North Cascades National Park; 
translocations are expected to continue over the next 2 years in this 
area, completing planned reintroductions for western Washington (Hayes 
and Lewis 2006, p. 35).
    Fishers were once well distributed throughout their historical 
range in the habitats described above. Now in Oregon and California, 
outside of the existing NCSO and SSN known subpopulations in Oregon and 
California (see figure 2, below), fishers are considered likely 
extirpated. Additionally, in California, recent survey efforts have not 
detected fishers south of the reintroduced NSN

[[Page 60283]]

subpopulation or north of the SSN subpopulation.
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP07NO19.000

BILLING CODE 4333-15-C
    Additional information on the species' biology and distribution is 
described in the final Species Report (Service 2016, pp. 9-12, 25-53).

Summary of Biological Status and Threats

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an endangered species as a species that is 
``in danger of extinction throughout all or a significant portion of 
its range,'' and a threatened species as a species that is

[[Page 60284]]

``likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' The Act 
requires that we determine whether any species is an ``endangered 
species'' or a ``threatened species'' because of any of the following 
factors: (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. These factors represent broad categories of 
natural or human-caused actions or conditions that could have an effect 
on a species' continued existence. In evaluating these actions and 
conditions, we look for those that may have a negative effect on 
individuals of the species, as well as other actions or conditions that 
may ameliorate any negative effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, and then analyze the cumulative effect of all 
of the threats on the species as a whole. We also consider the 
cumulative effect of the threats in light of those actions and 
conditions that will have positive effects on the species--such as any 
existing regulatory mechanisms or conservation efforts. The Secretary 
determines whether the species meets the definition of an ``endangered 
species'' or a ``threatened species'' only after conducting this 
cumulative analysis and describing the expected effect on the species 
now and in the foreseeable future. In our determination, we correlate 
the threats acting on the species to the factors in section 4(a)(1) of 
the Act.

Current Condition of the West Coast DPS of Fisher

    Following are brief accounts of the NCSO (and by inclusion the SOC 
and NSN subpopulations) and SSN subpopulations. Primary threats are 
introduced in these summaries and described in more detail below in the 
``Risk Factors for the West Coast DPS of Fisher'' section. Additional 
detail is also found in the ``Review of Stressors'' section of the 
final Species Report (Service 2016, pp. 53-162), although we provide 
updated/new information since 2016 in this document, when applicable. 
Regulatory and voluntary conservation efforts resulting from the plans 
and strategies being implemented within both subpopulations were 
previously described in detail in the 2016 final Species Report, and 
are updated in this document.
    However, as explained in more detail below in the ``Existing 
Regulatory Mechanisms and Voluntary Conservation Measures'' section of 
this rule, we determined that we did not need to evaluate these 
voluntary conservation efforts under our Policy for Evaluation of 
Conservation Efforts When Making Listing Decisions (PECE; 68 FR 15100). 
While it is reasonably likely these conservation efforts will provide 
some benefit for fishers, we also note that these benefits will be 
realized at more of an individual fisher/local scale where implemented, 
and not necessarily at a scale and magnitude sufficient to ameliorate 
the primary significant threats imperiling the DPS. Therefore, while we 
acknowledge that the DPS may see conservation benefits from these 
efforts, we recognize that these benefits will not be sufficient to 
outweigh the DPS's primary threats, and as such, there is no reason to 
evaluate these conservation efforts under PECE for certainty of 
implementation and effectiveness.

NCSO--Northern California-Southwestern Oregon Subpopulation

    Abundance information for the NCSO population is presented based on 
three different geographic portions of this subpopulation. First, the 
SOC portion west of Crater Lake is predominantly represented by 
nonnative, reintroduced individuals. However, recent analyses have 
documented that at least some of these nonnative SOC individuals and 
native NCSO individuals are overlapping in range, with confirmed 
interbreeding (Pilgrim and Schwartz 2016, entire; Pilgrim and Schwartz 
2017, entire). Second, the NSN portion is represented by native, 
reintroduced fishers whose genetic stock is from fishers relocated from 
the Klamath-Siskiyou and Shasta-Trinity subregions (in the historically 
native NCSO subpopulation) to the northern Sierra Nevada. This 
geographic portion of the NCSO subpopulation occurs on land known as 
the SPI Stirling Management Unit in Butte, Plumas, and Tehama Counties, 
California (Powell et al. 2019, p. 2). Third, the remainder of the 
native fishers in the NCSO subpopulation occupy the California Coast 
Range mountains in southern Oregon and northern California, the 
Klamath-Siskiyou and Shasta-Trinity subregions in northern California, 
and the western portion of the southern Cascades in northern 
California.
    Fishers in the SOC portion of the NCSO subpopulation stem from a 
translocation of 30 fishers from British Columbia and Minnesota to the 
southeastern Cascade Range and west of Crater Lake between 1977 and 
1981, after an earlier reintroduction in 1961 failed (Aubry and Lewis 
2003, p. 84; Lofroth et al. 2010, pp. 43-44). Based on survey and 
research efforts starting in 1995, genetic evidence shows these fishers 
continue to persist (Drew et al. 2003, p. 57; Aubry et al. 2004, pp. 
211-215; Wisely et al. 2004, p. 646; Pilgrim and Schwartz 2014-2017, 
entire; Moriarity et al. 2017, entire; Barry 2018, pp. 6, 22-24). Prior 
to 2015, survey work in the Oregon Cascades north of the NCSO 
subpopulation was mainly limited to opportunistic or small-scale 
efforts. Fishers had not been detected, except for two single fishers: 
One detected just north of the SOC subpopulation in 2014 (Wolfer 2014, 
pers. comm.); and a single dispersing juvenile male detected in the 
same general area in the 1990s (Aubry and Raley 2006, p. 5), suggesting 
individuals may disperse north through the central Oregon Cascades. 
Over the winter of 2015-2016, systematic camera surveys occurred in the 
northern Oregon Cascades (specifically, the southern portion of the Mt. 
Hood National Forest and northern portion of the Willamette National 
Forest). No fishers were detected (Moriarty et al. 2016, entire), 
suggesting fishers may not reach this far north in the Oregon Cascades. 
Additionally, surveys over the past 3 years have not detected fishers 
north of the Rogue River in the central Oregon Cascades (Barry 2018, 
pp. 22-23) (see below).
    Information is not available on population size for the SOC portion 
of

[[Page 60285]]

the NCSO subpopulation. In the northern portion of the SOC area, 
fishers were detected in the northern and eastern portions of Crater 
Lake National Park between 2013 and 2015 (Mohren 2016, pers. comm.). 
However, systematic surveys were conducted in 2016 and 2017 north and 
east of Crater Lake National Park and south to the Klamath Falls 
Resource Area (KFRA; south of the reintroduction area) of the Bureau of 
Land Management (BLM) Lakeview District (Barry 2018, entire). Few 
fishers were detected in an area east of Crater Lake National Park 
where fishers were captured and radio-collared in the early 1990s by 
Aubry and Raley (2002, entire). Fishers were found on the KFRA, south 
of where they were previously estimated to occur, and in areas where 
they were not previously detected (Hayner 2016, pers. comm.). These 
results suggest that fisher in the SOC area ``appears to have 
contracted, shifted south, or the previous population extent was 
incorrectly estimated'' (Barry 2018, pp. 22-24).
    Fishers in the NSN portion of the NCSO subpopulation stem from a 
2009 to 2011 translocation of 40 fishers (24 females, 16 males) from 
Humboldt, Siskiyou, and Trinity Counties, California, to the Sierra 
Pacific Industries (SPI) Stirling Management Unit in Butte, Plumas, and 
Tehama Counties, California. Ongoing monitoring has confirmed that 
fishers born onsite have established home ranges and have successfully 
reproduced. Trapping efforts in the fall of 2017 as part of ongoing 
monitoring of the reintroduced subpopulation indicate a minimum of 61 
fishers (38 females, 23 males), which is 21 more than were originally 
introduced (Powell et al. 2019, p. 2).
    Older estimates for the NCSO subpopulation (excluding the SOC and 
NSN reintroduced subpopulations) using various methodologies range from 
a low of 258-2,850 individuals, based on genetic data (Tucker et al. 
2012, pp. 7, 9-10), to a high of 4,018 individuals based on 
extrapolation of data from two small study areas within the NCSO 
subpopulation to the entire NCSO subpopulation (Self et al. 2008, pp. 
3-5). In 2017, a new estimate was developed for the NCSO subpopulation 
that includes southern Oregon and coastal California but excludes SOC 
and NSN (Furnas et al. 2017, pp. 2-3). Furnas et al. (2017) based their 
estimate of population size on the assumption of a density of 6.6 
fishers per 39 mi\2\ (100 km\2\) across the area they defined for the 
NCSO subpopulation (rationale described in detail in Furnas et al. 
2017, pp. 12-15). Using this estimate of fisher density, the NCSO 
subpopulation is estimated to be 3,196 individuals (2,507-4,184; 95 
percent Confidence Interval (C.I.)) Furnas et al. 2017, p. 12). With 
the exception of the reintroduced NSN subpopulation area estimate, 
which is based on trapping results, Self et al. (2008) and Furnas et 
al. (2017) base their estimates for the size of the NCSO subpopulation 
on fisher habitat available prior to 2014.
    Trend information for fishers within the NCSO subpopulation is 
based on the following two long-term study areas. As indicated above, 
we now consider the NCSO subpopulation to include the areas previously 
represented as the SOC and NSN reintroduced fisher subpopulations.
    (1) The Hoopa study area is approximately 145 mi\2\ (370 km\2\) on 
the Hoopa Valley Indian Reservation north of California State Highway 
299 and near Highway 96, which is largely surrounded by the Six Rivers 
National Forest and other private lands. The study area represents the 
more mesic portion (containing a moderate amount of moisture) of the 
NCSO subpopulation area. Fisher studies have been ongoing since 1996. 
The population trend in the period 2005-2012 indicates declining 
populations with lambda (population growth rate) of 0.992 (C.I. 0.883-
1.100) with a higher lambda rate for females 1.038 (0.881-1.196) than 
males 0.912 (0.777-1.047) (Higley et al. 2014, p. 102, Higley 2015, 
pers. comm.).
    (2) The Eastern Klamath Study Area (EKSA) is approximately 200 
mi\2\ (510 km\2\) in size straddling the California/Oregon border. This 
study area represents the more xeric portion (containing little 
moisture; very dry) of the NCSO subpopulation area. Monitoring has 
occurred since 2006 (Green et al. 2018a, entire). The estimate for 
population growth rate in the period 2006-2013 is increasing (lambda = 
1.06; C.I. 0.97-1.15) (Green et al. 2018a, p. 818). However, two years 
of data collected from 2014-2016 following two large fires in the study 
area indicate an estimated 40 percent reduction in the number of 
fishers post-fire (Green et al. 2019, p. 8).
    The major habitat-based threats experienced by the NCSO 
subpopulation are loss of complex canopy forests and den/rest sites, 
and fragmentation of habitat, from high-severity wildfire, wildfire 
suppression activities (e.g., backburning, fuel breaks, and snag 
removal), and vegetation management (e.g., fuels reduction treatments, 
salvage, hazard tree removal). Major non-habitat related threats are 
exposure to toxicants and, in some areas, predation. Within the Oregon 
portion of the NCSO subpopulation, two dead fishers were tested for the 
presence of rodenticides; exposure was found in both (Clayton 2016, 
pers. comm.).
    In addition to these threats acting on the DPS, there are also 
several conservation efforts designed to benefit fishers. Such efforts 
include those being implemented within the portion of the range covered 
by the Northwest Forest Plan (NWFP), including measures associated with 
Endangered Species Act section 7 consultations in overlapping northern 
spotted owl (Strix occidentalis caurina) designated critical habitat. 
Two principal conservation efforts exist in Oregon. First, there is an 
intergovernmental Memorandum of Understanding (MOU) for fisher 
conservation (DOI et al. 2016, entire), which provides a framework for 
cooperation and achieving mutual fisher conservation goals among 
Federal and State agencies (Service 2016, pp. 120-121). Second, a 
template Candidate Conservation Agreement With Assurances (CCAA) for 
fishers in western Oregon (81 FR 15737, March 24, 2016) requires 
conservation measures to protect occupied den sites, as well as 
additional contributions toward a fisher conservation program or work 
described in the template CCAA. A permit was recently issued under this 
template CCAA (84 FR 4851, February 19, 2019) and we are in the process 
of considering five additional permit applications (84 FR 31903, July 
3, 2019).
    For the portion of the NCSO subpopulation in California, 
reintroduction efforts have resulted in establishment of a fisher 
subpopulation in the SPI Stirling Management Area within the NSN 
(northern Sierra Nevada) with the potential to connect with fishers in 
the remainder of the NCSO subpopulation to the north. In 2016, an 
approximately 1.6 million-acre (ac) (647 thousand-hectare (ha)) CCAA 
for fishers on Sierra Pacific Industries (SPI) ownership in the 
Klamath, Cascade, and Sierra Nevada mountains was completed (SPI and 
Service 2016, entire), which incorporated the area and earlier 
monitoring agreements for the SPI Stirling Management Area CCAA (SPI 
and Service 2008, entire). Implementation and monitoring has been under 
way since October 2016. The objectives of this CCAA are to secure 
general forested habitat conditions for fishers for the 10-year time 
period and the retention of important fisher habitat components (large 
trees, hardwoods, and snags) suitable for denning and resting into the 
future. Additionally, the Green Diamond Forest HCP (GDRC 2018,

[[Page 60286]]

entire) is anticipated to provide a conservation benefit for fishers 
and their habitat (portions of forests on the west slope of the coastal 
and Klamath Mountains) in Del Norte and Humboldt Counties, California. 
Conservation benefits anticipated include (but are not limited to): 
Identifying and retaining fisher denning and resting trees, including 
maintaining a 0.25-mi (402-m) radius no-harvest buffer around active 
fisher dens; fisher-proofing water tanks and pipes; implementing 
measures that detect, discourage, and remove unauthorized marijuana 
cultivation and associated pesticide use; and cooperating with any 
Federal or State-approved fisher capture and relocation/reintroduction 
recovery programs (Service 2019a, p. 2).

SSN--Southern Sierra Nevada Subpopulation

    The SSN native subpopulation of fisher is small and is 
geographically separated from the remainder of the DPS. The SSN 
subpopulation is found in Mariposa, Madera, Fresno, Tulare, and Kern 
Counties in California. Historically, the subpopulation likely extended 
farther north, but may have contracted due to unregulated trapping, 
predator-control efforts, habitat loss and fragmentation, or climatic 
changes. Today the approximate northern boundary is the Tuolumne River 
in Yosemite National Park (Mariposa County) and the southern limit is 
the forested lands abutting the Kern River Canyon, while the eastern 
limit is the high-elevation, granite-dominated mountains, and the 
western limit is the low-elevation extent of mixed-conifer forest. 
Multiple lines of genetic evidence suggest that the isolation of the 
SSN subpopulation from other subpopulations of native fishers within 
the West Coast States is longstanding and predates European settlement 
(Knaus et al. 2011, entire; Tucker et al. 2012, entire; Tucker 2015, 
pers. comm., pp. 1-2).
    Estimates for the SSN subpopulation range from a low of 100 to a 
high of 500 individuals (Lamberson et al. 2000, entire). A recent 
estimate of 256 female fishers was based on habitat availability at the 
time (Spencer et al. 2016, p. 44). Other population estimates are: (1) 
125-250 adult fishers based on fisher carrying capacity in currently 
occupied areas (Spencer et al. 2011, p. 788); and (2) fewer than 300 
adult fishers or 276-359 fishers that include juveniles and subadults 
based on extrapolation from portions of the subpopulation where fishers 
have been intensely studied to the range of the entire population 
(Spencer et al. 2011, pp. 801-802). These population estimates are 
based on habitat conditions for fishers in the Sierra Nevada that 
predate the ongoing, large-scale tree mortality event in this 
geographic area that began in approximately 2010. The Sierra tree 
mortality event is affecting many of the key components of fisher 
habitat such as complex forest canopy structure and connected closed-
canopy forest conditions. Research is currently ongoing to determine to 
what extent these large-scale habitat changes will have on the SSN 
subpopulation.
    An 8-year monitoring study that sampled an average of 139.5 units 
(range 90-189) per year during the period 2002-2009 throughout the SSN 
subpopulation showed no declining trend in occupancy (Zielinski et al. 
2013, pp. 3, 10-14; Tucker 2013, pp. 82, 86-91). However, this study 
had been designed to be run for 10 years while sampling 288 units per 
year and was intended to have an 80 percent probability of detecting a 
20 percent decline over 10 years (Zielinski et al. 2013, p. 11; Tucker 
2013, p. 82). As a result of the smaller sample size and shorter 
duration, the results of this study must be considered inconclusive.
    Another study of radio-collared fishers monitored from 2007 through 
2014 in the Sugar Pine area (49 mi\2\ (128 km\2\)) of the SSN 
subpopulation showed the survival rate (calculated using demographic 
parameters) of adult males, but not females, is lower than other 
subpopulations in the West Coast States. Specifically, Sweitzer et al. 
(2015a pp. 781-783; 2015b, p. 10) stated that their analysis 
``suggested slightly negative growth ([lambda] = 0.966) for the period 
of the research (Table 2). The upper range for [lambda] (1.155) was 
well above 1.0, however, suggesting stability or growth in some years. 
The estimated range for [lambda] (Table 2) was consistent with the 
estimated population densities, which did not indicate a persistent 
decline during 4 years from 2008-2009 to 2011-2012.'' Additionally, in 
a new report (Purcell et al. 2018) based on fishers studied in the 
previously mentioned Sugar Pine area, results for radio-collared 
fishers monitored from 2007 through 2017 (totaling 139 collared 
fishers) in the Sugar Pine area are updated, indicating an estimated 
lambda of 0.99 (C.I. 0.826 to 1.104) based on female fisher survival 
rates (Purcell et al. 2018, pp. 5-6, 17). Specifically, Purcell et al. 
(2018) stated: ``Given the length and intensity of the monitoring 
associated with calculating these estimates, and the lack of 
significant difference from zero, the SNAMP/Sugar Pine fisher 
population appears stable over the study period.'' Thus, population 
growth in the Sugar Pine portion of the SSN subpopulation is estimated 
to trend less than 1.0; however, the authors suggest that the 
population in this area is not in persistent decline but is offset by 
periods of stability or growth (Sweitzer et al. 2015a, p. 784; Purcell 
et al. 2018, p. 6). Finally, the authors express concern for the 
subpopulation and the need for continued monitoring (Sweitzer et al. 
2015b, p. 10; Purcell et al. 2018, p. 6).
    Available population estimates and trend information for the SSN 
subpopulation does not take into consideration extensive tree mortality 
that has impacted the habitat since 2015 to present. Research is 
currently being conducted to determine any potential effects that tree 
mortality may be having on the SSN fisher subpopulation, but results 
are not yet available (Green et al. 2019, entire).
    The major threats for the SSN subpopulation are loss and 
fragmentation of habitat resulting from high-severity wildfire and 
wildfire suppression activities, vegetation management, and forest 
insects and tree diseases, as well as direct impacts that include high 
mortality rates from predation, exposure to toxicants, and potential 
effects associated with small population size. Tree mortality may be an 
additional threat on this subpopulation given the species' needs, but 
more information is necessary to determine population-level impacts. 
Potential conservation measures include the development of the Southern 
Sierra Nevada Fisher Conservation Strategy (Spencer et al. 2016, 
entire).

Risk Factors for the West Coast DPS of Fisher

    Potential threats currently acting upon the West Coast DPS of 
fisher or likely to affect the species in the future are evaluated and 
addressed in the final Species Report (Service 2016, pp. 53-162). We 
consider these threats in light of the statutory factors identified in 
the Act, including: (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. The reader is directed to the 
Species Report (Service 2016, entire) for a more detailed discussion of 
the threats summarized in this document (http://www.fws.gov/cno/fisher/
). However, please note that our most recent consideration of new data 
since 2016

[[Page 60287]]

coupled with our reevaluation of the entirety of the best available 
scientific and commercial information is represented and summarized in 
this revised proposed rule.
    Our analysis represents an evaluation of the biological status of 
the species, based upon our assessment of the cumulative impact of all 
effects anticipated from the identified threats, and how that 
cumulative impact may affect the species' continued existence currently 
and in the future. We used the best available scientific and commercial 
data, and the expert opinions of the analysis team members. Based on 
the analysis and discussion contained herein, in this document we 
evaluated potential habitat-based threats including high-severity 
wildfire, wildfire suppression activities, and post-fire management 
actions; climate change; forest insects and tree diseases; vegetation 
management; and human development (Factor A). We also evaluated 
potential threats related to direct mortality of fishers including 
trapping and incidental capture (Factor B), research activities (Factor 
B), disease or predation (Factor C), collision with vehicles (Factor 
E), exposure to toxicants (Factor E), and potential effects associated 
with small population size (Factor E). Finally, we also evaluated the 
inadequacy of existing regulatory mechanisms (Factor D).
    The timing (immediacy) of each threat was assessed independently 
based upon the nature of the threat and time period that we can be 
reasonably certain the threat is acting on fisher populations or their 
habitat. In general, we considered that the trajectories of the threats 
acting on fisher subpopulations across the DPS's range could be 
reasonably anticipated over the next 35-40 years. We estimated this 
timeframe as a result of our evaluation of an array of time periods 
used in modeling. For example, climate models for areas with fisher 
habitat, habitat conservation plans (HCPs), and timber harvest models 
generally predict 50 to 100 years into the future, and forest planning 
documents often predict over shorter timeframes (10 to 20 years). We 
considered 40 years at the time of the 2014 Proposed Rule, and given 
the 5-year time period since, we are modifying the foreseeable future 
time period to a range of 35-40 years. This is a timeframe that we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. This time period extends only so 
far as the predictions into the future are reliable, including a 
balance of the timeframes of various models with the types of threats 
anticipated during the 35- to 40-year time period.
    As we conducted our threats analysis, we determined that the most 
significant drivers of the species' future status were: Wildfire and 
wildfire suppression, damage to forest health from disease and insect 
infestations, and the potential for climate change to exacerbate both 
of these threats, as well as the threats related to vegetation 
management and exposure to toxicants. While our assessment of the 
species' status was based on the cumulative impact of all identified 
threats, as explained above, we are only presenting our analyses on 
these specific primary threat drivers for the purposes of this revised 
proposed rule. Full detailed analyses for all the other individual 
threats, we refer the reader to the Species Report (Service 2016, 
entire).

Wildfire and Wildfire Suppression

    Our evaluation includes both the effects of wildfire on fisher 
habitat as well as those activities associated with wildfire 
suppression that may result in changes to fisher habitat (for example, 
backburning, fuel breaks, and snag removal). Naturally occurring fire 
regimes vary widely within the range of fishers on the West Coast 
(Service 2014, p. 58). Potential for high-severity wildfire to affect 
fisher habitat and fisher populations is concentrated in northern 
California-southwestern Oregon and the Sierra Nevada areas as compared 
to the remainder of the fisher's historical range in the West Coast 
States (Service 2014, pp. 62-63). In general, high-severity wildfire 
has the potential to remove suitable fisher habitat by removing forest 
canopy, large trees, and structurally diverse understories, which can 
take from decades to a century or more to regrow, depending on the 
habitat feature (Service 2014, pp. 59-60). Mixed-severity wildfire 
includes patches of low-severity wildfire and patches of high-severity 
wildfire (Jain et al. 2012, p. 47).
    At the landscape scale, mixed-severity wildfire effects to fisher 
habitat may only affect an area's ability to support fishers for a 
short period of time due to the patchy nature of burned and unburned 
areas. Additionally, a beneficial aspect of mixed-severity wildfires 
(as opposed to just high-severity wildfires) is that these wildfires 
may contribute to the regeneration of the hardwood component of mixed-
conifer forest used by fisher (Cocking et al. 2012, 2014, entire). Low-
severity wildfire may reduce some elements of fisher habitat 
temporarily, but also helps to contribute to the ecological processes 
necessary to create tree cavities essential for denning and resting 
fishers (Weir et al. 2012, pp. 237-238). Low-severity wildfire is 
unlikely to remove habitat, and post-wildfire areas are likely to still 
be used by fishers (Naney et al. 2012, p. 6; Truex and Zielinski 2013, 
p. 90).
    Within shrub, grassland, and forested lands across the western 
United States (including the Sierra Nevada, southern Cascades, and 
Coast ranges), the wildfire season length increased over each of the 
last 4 decades, from 65 days in the 1970s to 140 days in the 2000s 
(Westerling 2016, pp. 3, 8, and 10). The lengthening of the wildfire 
season is largely due to declining mountain snowpack and earlier spring 
snowmelt, which contributes to a decrease in vegetation moisture that 
enables more frequent large wildfires and an increase in the total area 
burned (Westerling 2016, pp. 8-9). In the SSN subpopulation area, 
changes in climate are associated with large increases in the area 
burned by wildfire (Dettinger et al. 2018, p. 72), and increases in the 
frequency of large wildfires greater than 24,700 (ac) (9,996 (ha) 
(Westerling 2016, pp. 6-7). Recent publications on wildfire occurrence 
and severity within the NCSO and SSN fisher subpopulations have not 
changed our conclusions about this threat from the 2014 Proposed Rule 
(79 FR 60419, October 7, 2014; p. 60429).
    Recent information on fishers' behavioral and localized population 
response to wildfires is available for both the NCSO and SSN fisher 
subpopulations, as shown below.
Northern California-Southern Oregon (NCSO)
    In a monitored fisher population in the Klamath-Siskiyou area, 
declines in the overall fisher population occurred after wildfires in 
the study area in 2014 and 2015 (Green et al. 2019, entire). This 
population of fishers was monitored for 8 years pre-wildfire and the 
population was considered relatively stable. The decline in the number 
of fishers due to the wildfires is 40 percent, a decrease that became 
apparent the first full year following the fires and has persisted for 
at least 2 more years (Green et al. 2019, p. 8). Fisher densities 
declined across all wildfire severity types but declined the most in 
areas with more than a 50 percent loss of tree basal area (Green et al. 
2019, p. 6).
    Within the Biscuit Fire area in southwest Oregon, which burned in 
2002, surveys conducted in 2016 and 2017 did not detect fishers within 
the burn perimeter (Barry 2018, pp. 22-23), suggesting fishers may not 
yet occupy

[[Page 60288]]

the area. The Biscuit Fire appears to have been unusually large and 
severe for the Klamath-Siskiyou region based on estimates of crown 
damage (Odion et al. 2004, p. 932) and area affected by surface fire 
(Thompson and Spies 2009, pp. 1,692-1,693).
    To update our 2014 analysis of wildfire effects within the NCSO 
subpopulation, we conducted an analysis similar to the one completed 
for the 2014 draft Species Report (Service 2014, pp. 62-64; Service 
2019b, unpublished data). Using the fisher habitat map developed for 
the 2014 Proposed Rule and U.S. Forest Service data for burn severity 
for 2008-2018 (USDA Forest Service 2019), we estimated the effects of 
high-severity wildfire to fisher habitat over the past 10 years. We 
assumed wildfires that burned at high severity (greater than 50 percent 
basal area loss) changed fisher habitat to a condition that would not 
be selected by fishers; this assumption was based on the recent results 
as reported in Green et al. (2019a, p. 6). Overall, high and 
intermediate quality fisher habitats in the NCSO subpopulation have 
decreased by 526,424 ac (213,036 ha) from 7,050,035 ac (2,853,047 ha) 
to 6,523,610 ac (2,640,011 ha), or approximately 7 percent, as a result 
of wildfires since 2008. The total area assessed was approximately 
10,459,612 ac (4,232,855 ha).
    For comparison purposes, in our 2014 draft Species Report, we 
estimated 4 to 8 percent of fisher habitat would be lost over the next 
40 years due to high-severity wildfire (Service 2014, p. 64). Our 2014 
area of analysis for the NCSO subpopulation was based on fire data from 
1984 to 2011 and assessed approximately 24,080,693 ac (9,745,111 ha). 
The results of our new analysis is based on fire data from the period 
2008 to 2018, a 10-year period of actual data, which indicates our 
earlier estimates of changes to fisher habitat from wildfire over the 
next 40 years may have been an underestimate.
Southern Sierra Nevada (SSN)
    In an analysis of a portion of the SSN fisher subpopulation, fisher 
occupancy of sample units trends lower among those units burned by 
either prescribed burning or wildfire (Sweitzer et al. 2016, pp. 218-
220); nonetheless, the overall results of this analysis did not include 
a consistent negative effect of fire on fisher habitat use. Results of 
modeling the variables of forest structure important to fishers for 
denning habitat on the Sierra National Forest and Yosemite National 
Park suggest that suitable denning habitat is maintained in burned 
forests, though primarily those with low-severity wildfire conditions 
(Bomdahl 2018, entire). Fisher behavior in post-wildfire landscapes in 
the French (2014) and Aspen Fires (2013) indicated an avoidance of 
areas affected by high- and moderate-severity wildfires, and a higher 
probability of being found in ravines or canyon bottoms in combination 
with unburned or lightly burned patches (Thompson et al. 2019, pp. 13-
14). This new information differs from that reported in our final 
Species Report (Service 2016, p. 66) and may be due to different scales 
of analysis, the values chosen to identify wildfire severity classes, 
or the 2-4 year vs. 10-year post-wildfire sampling period (Hanson et 
al. 2013, entire; Thompson et al. 2019, pp. 15-18). Without demographic 
data on age class, survival, or reproduction, it is difficult to say 
with certainty whether fisher use of post-wildfire landscapes is for 
dispersal or whether such areas act as population sinks, as has been 
identified for the proposed coastal DPS of Pacific marten (Martes 
caurina) (Thompson et al. 2019, pp. 17-18).
    For comparison purposes based on data compiled for a new analysis 
of effects of wildfire on fisher habitat in the southern Sierra Nevada, 
the Conservation Biology Institute (CBI) analyzed high severity fire 
data from 2003 to 2017 (CBI 2019, pp. 26-28). This new analysis shows a 
loss of fisher denning, resting, and foraging habitat of approximately 
25 percent over the time period 2003-2017, with most of that loss 
occurring between 2013 and 2017 (approximately 22 percent) (CBI 2019, 
p. 28). In addition, the wildfires occurring on the Sierra and Sequoia 
National Forests bisected and disrupted connectivity between--or 
reduced the overall size of--key core areas as identified in the SSN 
fisher conservation strategy (Spencer et al. 2016, p. 10; CBI 2019, pp. 
26-28).
Wildfire and Wildfire Suppression Summary
    When considering the best available scientific and commercial 
information regarding wildfire and wildfire suppression activities 
(including new information since the time of the 2014 Proposed Rule and 
our reevaluation of peer reviewer and other comments received), we 
maintain that wildfire is a natural ecological process. As stated 
above, wildfire may be increasing in terms of frequency, severity, and 
magnitude in California and southern Oregon. We acknowledge there is 
debate concerning whether wildfire severity is increasing (Mallek et 
al. 2013, pp. 11-17; Stephens et al. 2015, pp. 12-16; Hanson and Odion 
2016, pp. 12-17; Odion et al. 2016, entire). Our best professional 
judgment leads us to conclude that if the severity and extent of 
wildfires are such that substantial areas of canopy and large trees are 
lost, multiple decades of forest growth and structural development 
would be necessary for those burned areas to support fisher 
reproduction. Alternatively, if wildfire severity is low or mixed, 
important habitat elements to fisher (e.g., den trees) can be both 
created and removed within a home range such that the burned habitat 
may continue to support both fisher foraging and reproduction. 
Therefore, based on the research and data currently available (as 
described above and in Service 2014, p. 64; Sequoia Forest Keeper 2019, 
pers. comm.; Spencer et al. 2016, p. 10), we believe that, in areas 
where wildfires remove 50 percent or more of the basal area of trees in 
the habitats fisher select (high and intermediate quality), fisher 
occupancy and reproduction is negatively affected. In areas where less 
than 50 percent of the basal area is lost, the degree to which wildfire 
(and wildfire suppression activities) affects fisher populations 
depends on the forest type, landscape location, size, and intensity of 
the wildfire.

Climate Change

    At the time of the 2014 Proposed Rule, we stated and reaffirm here 
that, overall, fisher habitat is likely to be affected by changing 
climate conditions, but the severity will vary, potentially greatly, 
among different regions, with effects to fishers ranging from negative, 
neutral, or potentially beneficial. Climate change is likely to alter 
the structure and tree species composition of fisher habitat, and also 
result in changes to habitat of prey communities and ultimately prey 
availability. Studies of climate change present a range of effects 
including some that indicate conditions could remain suitable for 
fisher, and others that indicate a reduction in habitat quality or 
suitability could lead to increased chronic stress of fishers. Climate 
throughout the West Coast States is projected to become warmer over the 
next century, and in particular, summers will be hotter and drier, with 
heat waves that are more frequent (Hayhoe et al. 2004, p. 12,423; 
Tebaldi et al. 2006, pp. 191-200; Mote and Salath[eacute] 2010, p. 41; 
Salath[eacute] et al. 2010, p. 69; Cayan et al. 2012, pp. 4, 10; Mote 
et al. 2013, p. 34; Pierce et al. 2013, pp. 844, 848).
     In Oregon, Dalton et al. (2017, pp. 4, 8) evaluated 
greenhouse gas emissions via global climate models

[[Page 60289]]

with future emission pathways called ``representative concentration 
pathways'' (RCPs). They considered multiple greenhouse gas emission 
scenarios, including low (RCP 4.5) and business-as-usual (RCP 8.5). 
Their analysis indicates that extreme heat events are expected to 
increase in frequency, duration, and intensity by the 2050s due to 
warming temperatures (RCP 4.5 = mean annual temperature increase 
predicted on average 3.6 degrees Fahrenheit ([deg]F); RCP 8.5 = mean 
annual temperature increase predicted on average 5.0 [deg]F). Summers 
are expected to warm more than the annual average and likely to become 
drier. Annual precipitation is projected to increase slightly, although 
with a high degree of uncertainty. Extreme heat and precipitation 
events are expected to increase in frequency, duration, and intensity.
     In California, information from Pierce et al. (2013) and 
Safford et al. (2012) used multiple general circulation models and 
downscaling with regional climate models to develop probabilistic 
projections of temperature and precipitation changes over California by 
the 2060s. Predictions indicate an annual mean temperature increase of 
4.3 [deg]F (2.4 degrees Celsius ([deg]C)) by 2060 (Pierce et al. 2013, 
p. 844), which falls in line with already increased temperatures of 
around 1 to 2.5 [deg]F (0.5 to 1.4 [deg]C) over the past 75 to 100 
years specifically in the Sierra Nevada (Safford et al. 2012, p. 25). 
In the Klamath Mountains portion of the NCSO subpopulation area, 
precipitation is likely to fall increasingly as rain rather than snow, 
becoming mainly rain-dominated by mid-century (Dalton et al. 2017, p. 
17).
    Higher temperatures during spring and summer, coupled with early 
snow melt, will reduce moisture of both live fuels and dead surface 
fuels by increasing evaporative demands during the dry season (Kelly 
and Syphard 2016, pp. 2-3). Additionally, annual precipitation changes 
have been and are likely to continue to be inconsistent across 
California (Polade et al. 2017, p. 1), as well as the remainder of the 
West Coast States.
    Studies specific to predicting the effects of climate change on 
suitable fisher habitat have produced a wide range of results. Ecotype 
conversion to woodland, shrubland, or grassland would result in the 
loss of suitable fisher habitat. This type of shift is predicted, for 
example, in the southern Sierra Nevada (Gonzalez et al. 2010, fig. 3; 
Lawler et al. 2012, p. 388). On the other hand, shifts from conifer 
forest to hardwood-dominated mixed forest in the southern Sierra Nevada 
or Klamath region could either increase or decrease available habitat 
to fishers (Lawler et al. 2012, pp. 384-386; Loarie et al. 2008, p. 4 
and fig. 4). Given the contribution of hardwood trees to fisher habitat 
in drier parts of the NCSO and SSN subpopulations, a shift to 
increasing hardwoods in the more coastal or higher elevation forest 
types could improve habitat. However, trees are long-lived and mature 
forests can persist under suboptimal conditions, preventing better-
suited vegetation from becoming established until disturbance removes 
the original forest (Sheehan et al. 2015, p. 27). Consequently, the 
increase in the hardwood component of fisher habitat in predominantly 
conifer areas may not occur until after fires have removed enough of 
the existing stand to allow hardwood establishment, potentially 
decreasing suitable habitat in the interim.
    Other studies suggest that climate change will adversely impact 
forest habitat by intensifying large-scale, high-severity wildfire, 
drought, and tree mortality (Kadir et al. 2013, pp. 132, 137; 
Westerling 2016, pp. 1-2; Stephens et al. 2018, p. 77). A wide range of 
assumptions and caveats typically accompanies these types of 
predictions.
    Variables predicting fisher resting habitat as described by 
Zielinski and Gray 2018 (p. 903) include stand characteristics such as 
canopy closure, basal area of conifer and hardwood trees, and diameter 
and age of dominant conifers. To date climate change has not 
significantly affected resting habitat for fishers, which, according to 
Zielinski and Gray (2018, pp. 899, 903), has remained stable over the 
past 20 years across the California-portion of the DPS's range, 
although habitat suitability tended to be lower on private lands than 
public lands. However, when considering resting habitat trends over 
these 20 years to help us project potential future resting habitat 
conditions in light of climate change projections, survey data in the 
Eldorado and Sierra National Forests (within a portion of the SSN 
subpopulation area) indicate the beginning of a negative trend in 
resting habitat suitability (Zielinski and Gray 2018, p. 903), whereas 
resting habitat examined within the NCSO subpopulation area varied 
greatly (i.e., suitable resting habitat decreased in the Shasta-Trinity 
National Forest, increased in the Six Rivers National Forest, and 
remained unchanged over time for both the Klamath and Mendocino 
National Forests).
    In addition to the potential climate change effects to fisher 
habitat discussed above, some researchers have suggested climate change 
may cause direct effects to fishers, including increased mortality, 
decreased reproductive rates, alterations in behavioral patterns, and 
range shifts. Fishers may be especially sensitive, physiologically, to 
warming summer temperatures (Zielinski et al. 2004, p. 488; Slauson et 
al. 2009, p. 27; Facka 2013, pers. comm.; Powell 2013, pers. comm.). As 
a result, researchers (e.g., Burns et al. 2003, Zielinski et al. 2004, 
Lawler et al. 2012, Olson et al. 2014) theorize that fishers likely 
will either alter their use of microhabitats or shift their range 
northward and upslope, in order to avoid thermal stress associated with 
increased summer temperatures.
    Although we indicated in the 2014 Proposed Rule that climate change 
is not viewed as a direct threat to fishers or their habitat, the best 
available information indicates there is a link between changing 
climate conditions (temperature and precipitation changes, more 
frequent and prolonged droughts) and the resulting changes to overall 
habitat suitability and availability for fishers throughout their 
range, as well as potential to increase fisher stress levels when 
habitat changes occur. These changes more specifically affect the 
amount and distribution of habitat necessary for female fishers to be 
able to have places to den and raise their young. For example:
     Climate change, wildfire, and air quality: Ongoing climate 
change in California is likely to result in significant or amplified 
wildfire activity and air quality challenges, with area burned and 
severity likely to increase (Hurteau et al. 2019, pp. 1, 3; Moritz et 
al. 2018, p. 36). This in turn can result in reduced denning habitat 
availability for fishers, such as in the Coast Range and Klamath 
Mountains portion of the NCSO subpopulation area, which is projected to 
experience wildfire return intervals decreased by half and thus result 
in a near tripling of the annual area burned in this century compared 
to last (Sheehan et al. 2015, pp. 20-22; Dalton et al. 2017, p. 46).
     Drought, tree mortality, and wildfire: With increased 
drought conditions, tree mortality and large-scale high-severity 
wildfire are likely to increase in frequency and size, especially if 
fuel loads in forests are not decreased (Young et al. 2017, p. 78; 
Westerling and Bryant 2008, pp. S244-S248; Abatzoglou and Williams 
2016, pp. 11,770, 11,773). The loss of adequate forest canopy cover to 
provide habitat suitable for denning female fishers is occurring due to 
tree mortality

[[Page 60290]]

as a result of drought and wildfire (CBI 2019, p. 9).
    With regard specifically to droughts: Although we can expect that 
future droughts may be more intense, it is unknown whether or not 
droughts in the future will be worse than our worst droughts in the 
past (Keeley and Syphard 2016, p. 6). Regardless, it appears that 
climate change is exacerbating the effects of drought, given that 
changing climate conditions are estimated to have contributed 5 to 18 
percent to the severity of one of the worst recent droughts in 20th-
century California history (Keeley and Syphard 2016, p. 6).
     Climate change, wildfire, disease, tree mortality: The 
observed increases in wildfire activity in Oregon are partially due to 
climate change; increasing wildfire activity is expected under future 
warming, which in turn can exacerbate tree mortality from agents such 
as mountain pine beetles (Dalton et al. 2017, p. 46). Tree mortality 
(whether from changing climate conditions or any other factor), in 
turn, is likely to result in fishers experiencing reduced fitness (a 
positive relationship between higher amounts of tree mortality and 
higher cortisol levels in fishers), as documented in one portion of the 
SSN subpopulation (Kordosky 2019, pp. 14, 36) and an overall reduction 
in forest stand conditions known to be suitable denning habitat (CBI 
2019, entire; Green et al. 2019, pp. 3-4).
    Overall, at this time, the best available scientific and commercial 
information suggest that changing climate conditions (particularly 
increasing air temperatures coupled with prolonged and more frequent 
drought conditions) are exacerbating other threats to the fishers and 
their habitat within the West Coast DPS, including high-severity 
wildfires, the spread of forest insects, and tree diseases. Please see 
additional discussion about potential impacts to fishers or their 
habitat associated with wildfire (``Wildfire and Wildfire 
Suppression,'' above) and tree mortality (``Forest Insects and Tree 
Diseases,'' below) under those risk factor sections of this document.

Forest Insects and Tree Diseases

    Since 2010, severe drought events have led to more than 147 million 
dead trees in California, with a high concentration in the southern 
Sierras due to increased susceptibility to forest insects and tree 
disease (CAL FIRE and USFS 2019, no page number). Over half of the 
potential fisher habitat in the SSN subpopulation has been 
significantly impacted by canopy loss due to tree mortality (CBI 2019, 
pp. 3-9, 29). Additionally, sudden oak death (Phytophthora ramorum) has 
caused some tree mortality in southwestern Oregon and northwestern 
California (COMTF 2019, p. 1; Oregon Department of Forestry (ODF) 2016, 
pp. 1-2). There is limited information on the direct impacts to fisher 
of tree mortality due to forest insects and tree disease. The usual 
pattern of localized outbreaks and low density of tree-consuming 
insects and tree diseases are beneficial, providing structures 
conducive to rest and den site use by fishers or their prey. However, 
large, area-wide epidemics of forest disease and insect outbreaks may 
displace fishers if canopy cover is lost and salvage and thinning 
prescriptions in response to outbreaks degrade the habitat (Naney et 
al. 2012, p. 36).
    Preliminary information in the SSN subpopulation indicates a change 
in fisher habitat use whereby fishers avoid tree mortality areas (Green 
et al. 2019, entire). In addition, increased tree mortality on the 
landscape has resulted in reduced female fisher survival within the SSN 
population due to increased stress hormones (cortisol) (Kordosky 2019, 
pp. 31-34, 36-40, 54-61, 65-68, 94). Loss of canopy cover and large 
trees due to tree mortality from insects and tree diseases likely 
reduces habitat suitability for fishers, but it is unknown if the level 
of habitat loss will significantly impact fisher subpopulations 
throughout the DPS's range. It is likely that tree mortality will 
continue to be a threat into the future due to predicted increases in 
drought conditions that will likely continue to weaken trees and make 
them susceptible to bark beetles and disease (Millar and Stephenson 
2015, pp. 823-826; Young et al. 2017, pp. 78, 85).

Vegetation Management

    Vegetation management techniques of the past (primarily timber 
harvest) have been implicated as one of the two primary causes for 
fisher declines across the United States. Many fisher researchers have 
suggested that the magnitude and intensity of past timber harvest is 
one of the main reasons fishers have not recovered in the western 
United States as compared to the northeastern United States (Service 
2014, pp. 54-56). At the time of the 2014 Proposed Rule, we stated that 
vegetation management techniques have, and can, substantially modify 
the overstory canopy, the numbers and distribution of structural 
elements, and the ecological processes that create them. Overall, 
fisher home ranges tend to be composed of mosaics of forest stand types 
and seral stages but often with a high proportion of mid- to late-seral 
forests (Raley et al. 2012, p. 231). Fishers occupy managed landscapes 
and stands where timber harvest and other vegetation management 
activities occur; the degree to which fishers tend to be found in these 
areas often depends on a multitude of factors, including the scale, 
intensity, and rate of activities, as well as the composition and 
configuration of suitable habitat, and amount and type of retained 
legacy structures (Service 2016, pp. 59-60; Thompson and Clayton 2016, 
pp. 11-16, 22; Marcot et al. 2018, p. 400; Parsons 2018, pp. 31, 53-55, 
63; Purcell et al. 2018, pp. 60-61, 69-70).
    At the time of the 2014 Proposed Rule, we concluded that data 
limitations in most subregions across the DPS prevented us from 
quantifying what proportion of the treatments actually resulted in 
habitat loss or downgrade. Thus, at that time, the severity scores 
presented in the 2014 draft Species Report and summarized in the 2014 
Proposed Rule represented our best estimate and constituted a 
relatively broad range to incorporate this uncertainty. Our previous 
quantitative analysis of threats resulting in habitat loss also did not 
account for ingrowth (i.e., forest stands becoming habitat as a result 
of forest succession) of fisher habitat over our 40-year analysis 
timeframe and, therefore, provided no values for net habitat change; 
while we acknowledged that ingrowth occurs, primarily on Federal lands, 
we lacked the data at that time to quantitatively estimate that 
ingrowth (Service 2014, pp. 84-92). Although we recognized data 
limitations in most subregions across the range of the DPS and we did 
not account for ingrowth, we found that vegetation management is a 
threat because activities that remove or substantially degrade fisher 
habitat through the removal of large structures and overstory canopy 
are projected to take place within the range of the DPS over the next 
40 years.
    Since the time of our 2014 Proposed Rule, we reevaluated our 
analysis and changed our approach to rely on available data on forest 
disturbances and past changes in older forest. Several sources of data 
provide information on past changes in vegetation in different areas of 
the DPS. Because of the large area encompassed by the fisher, these 
different sources are not directly comparable and do not easily combine 
to paint a complete picture of the vegetation trends within the West 
Coast DPS. We have acknowledged the limitations of this information, 
and we explicitly requested information from the public in our 2014 
Proposed Rule to better inform our analysis of this threat

[[Page 60291]]

and to help us make a final determination. Specifically, we requested 
information related to the scope and degree of vegetation management on 
Federal land within the range of the fisher, and scientific or 
commercial information on the type, scope, and degree of vegetation 
management (timber harvest, restoration thinning, fuels reduction, 
etc.) on non-Federal land in Oregon and Washington. We also requested 
scientific evaluation of our use of the northern spotted owl habitat 
data as a surrogate for fisher habitat data, and its use in our 2014 
draft Species Report as the best available data to determine the scope 
and degree of vegetation management effects on Federal lands.
    Currently, no analysis explicitly tracks changes in fisher habitat 
in recent decades where loss specifically attributable to vegetation 
management can be determined. Therefore, we used other available 
information, as described below, and our best professional judgment to 
analyze the potential effects of this threat on the DPS of fisher. 
After considering the best available data, including comments received 
from peer reviewers and the public regarding the vegetation management 
threat analysis presented in the draft Species Report (Service 2014, 
pp. 85-96) and summarized in the 2014 Proposed Rule, we updated and 
reconsidered our analysis. Our updated analysis included the use of 
several different sources of information to depict forest vegetation 
changes caused by vegetation management activities within the range of 
the DPS. With the exception of the non-Federal timber harvest database 
in California (California Department of Forestry and Fire Protections 
(CAL FIRE) 2013), all of these sources are either new or updated since 
2014 (Davis et al. 2015, entire; USDA Forest Service 2016, entire; 
Spencer et al. 2016, entire; Spencer et al. 2017, entire; gradient 
nearest neighbor (GNN) data/maps). Because we were able to use these 
sources of data, we did not need to rely on northern spotted owl 
habitat data as a surrogate for fisher habitat data in this evaluation. 
Our revised methodology is described in detail for the historical, 
three-State range of the DPS in the 2016 final Species Report (Service 
2016, pp. 98-111); we summarize it below and describe its application 
to our revised proposed DPS.
    While historical loss of older forests via timber harvest through 
much of the 1900s resulted in a substantial loss of fisher habitat in 
the West Coast States, harvest volume has sharply declined throughout 
this area since 1990, primarily on Federal lands, but also on non-
Federal lands. Although timber harvest is still ongoing throughout the 
West Coast States, habitat ingrowth is also occurring, offsetting some 
of those losses.
    Within the portion of the DPS overlying the Northwest Forest Plan 
region, we used information from the draft late-successional and old-
growth forest monitoring report (Davis et al. 2015, entire) to assess 
changes in fisher habitat as a result of vegetation management. This 
information included use of the ``old growth structure index'' (OGSI), 
which is an index of 0-100 that consists of four old-growth elements: 
(1) The density of large live trees; (2) the density of large snags; 
(3) the amount of down wood cover; and (4) the tree size diversity of 
the stand. Over a 20-year period (1993-2012), Davis et al. (2015, pp. 
5-6, 16-18) tracked changes in forests classed as OGSI-80, which 
represents forests that begin to show stand structures associated with 
older forests (e.g., large live trees, snags, down wood, and diverse 
tree sizes). Though OGSI-80 forests are not a comprehensive 
representation of fisher habitat, we considered this report to be the 
best available scientific and commercial information to assess changes 
in fisher habitat within the NWFP area. This information was the only 
data set available that identified the amount of acres lost to specific 
disturbance types (e.g., timber harvest or vegetation management, fire, 
and insects) and calculated specific acres of forest ingrowth, allowing 
us to explicitly track loss of a specific forest type condition to a 
specific disturbance category (vegetation management). All remaining 
data sets provided a net change in vegetation type but did not 
categorize or quantify the disturbance types (e.g., acres and type of 
loss, acres of ingrowth).
    Details of our analysis of Davis et al. (2015, entire) are 
explained in the 2016 final Species Report (Service 2016, pp. 101-102). 
We have since modified that analysis to only include data for the 
provinces that cover the current range of native fishers in the West 
Coast States (i.e., the West Coast DPS of fisher, as described in 
Summary of Changes From the 2014 Proposed Rule, above). The California 
portion of the DPS covers all of the California physiographic provinces 
analyzed in Davis et al. (2015, pp. 10, 30-31). The Oregon portion of 
the DPS occurs mostly within the Oregon Klamath province, but overlaps 
somewhat into small portions of the western and eastern Cascades 
provinces (Davis et al. 2015, pp. 10, 30-31). We assessed the results 
of including and excluding the data from the two Cascades provinces, 
and because no substantial differences were revealed between the two 
data sets, we report here the results for including only the Oregon 
Klamath province data, along with data for all of the California 
physiographic provinces located within the NWFP.
    Although loss of older forest habitat due to timber harvest on non-
Federal lands (11.1 percent since 1993) was substantially greater than 
on Federal lands (1.0 percent since 1993), in combining all ownerships, 
the percent loss due to timber harvest over the past 20 years was low 
(5.0). This translates to a 2.5 percent loss per decade. However, this 
may underestimate future harvest trends because timber harvest volume 
within the NWFP area on Federal lands has been on a general upward 
trend since 2000. During the first decade of NWFP implementation, 
Federal agencies offered, on average annually, 54 percent of the timber 
harvest sale goals (probable sale quantity or PSQ) identified in the 
Plan, whereas volume offered in 2012 was at about 80 percent of the PSQ 
identified in the NWFP, as agencies became more familiar with 
implementing the NWFP (USDI BLM 2015, p. 340; Spies et al. 2018, pp. 8-
9). In addition, BLM has recently revised their management plans in 
western Oregon and is no longer operating under the NWFP. Consequently, 
that agency is predicting an increase in timber volume above the NWFP 
sale quantity in the first decade (USDI BLM 2015, pp. 350-352). Hence, 
overall harvest trends on Federal lands over the next decade or so may 
be closer to rates observed in the last decade of NWFP implementation; 
however, the OGSI-80 harvest data we used was categorized by decade so 
we were not able to determine what the higher harvest rate during that 
time period translated to in terms of estimated habitat loss for 
fishers.
    The net loss of habitat, however, is somewhat less because 2.5 
percent per decade does not include ingrowth of OGSI-80 stands. 
Ingrowth is those stands that did not meet the OGSI-80 structural 
thresholds at the beginning of the 20-year monitoring period that, 
through vegetation succession, reached those thresholds at the end of 
the monitoring period. Ingrowth would result in a reduction in overall 
net habitat change because stands that grow into suitable habitat are 
assumed to offset the loss of habitat through disturbances such as fire 
or vegetation management. However, we acknowledge that fisher habitat 
occurs on a continuum, and habitat lost to timber

[[Page 60292]]

harvest or some other disturbance is not necessarily equivalent in 
quality to habitat that recently crosses a threshold of becoming 
suitable habitat.
    Ingrowth of OGSI-80 stands within the NWFP area occurred at a rate 
of 8 percent over the 20-year period, or 4 percent per decade 
(calculated from Davis et al. (2015, tables 6 and 7, pp. 30-31)). While 
this change would offset the OGSI-80 stands lost to vegetation 
management, there is still a net loss of 1 percent per decade if we 
incorporate all disturbances (i.e., wildfire and insects). Ingrowth 
rates are expected to increase in the foreseeable future on Federal 
lands within the NWFP area because forests regenerating from the post-
World War II harvest boom starting in the 1940s are beginning to meet 
the OGSI-80 threshold (Davis et al. 2015, p. 7).
    Elsewhere in the West Coast States, while we could track vegetation 
changes over time, the available data did not indicate the amount or 
types of disturbances affecting the specific vegetation types; that is, 
we could only determine net vegetation change of a particular 
vegetation type, not the specific amount of that type that was lost to 
a specific disturbance type, unlike in the NWFP area. Timber harvest 
records were available for the Sierra Nevada region, but idiosyncrasies 
in the FACTS (Forest Service Activity Tracking System) database (see 
Spencer et al. (2016, p. A-30)) and the fact that the available private 
lands database (CAL FIRE timber harvest plans) did not indicate types 
of treatment or what portion of the plans may have actually been 
implemented, led to concerns in translating acres of ``treatment'' as 
depicted in these databases into on-the-ground changes in forest 
vegetation types that could represent fisher habitat. Instead, we 
relied on net vegetation change data to display actual changes in 
forests that represent fisher habitat, realizing that net changes 
include other disturbances and that vegetation management will be some 
unknown portion of that change.
    In the SSN subpopulation area, we approximated fisher habitat 
change using a vegetation trend analysis to track changes in forests 
with large structural conditions thought to be associated with fisher 
habitat. Note that the vegetation category tracked in this analysis is 
not equivalent to the OGSI-80 forests used by Davis et al. (2015, 
entire). Instead, available data limited us to using predefined 
structure conditions describing forests with larger trees (greater than 
20 in (50 cm)), realizing this may not include all vegetation types 
used by fishers. This analysis showed that net loss of forests with 
larger structural conditions in the SSN subpopulation area was 6.2 
percent across all ownerships over the past 20 years, which equates to 
a loss of 3.1 percent per decade, similar to the 2.5 percent loss per 
decade within the NWFP portion of the DPS.
    In the single analysis where fisher habitat was actually modeled 
and tracked through time (i.e., the SSN subpopulation area), ingrowth 
of fisher habitat actually replaced habitat lost by all disturbances 
between 1990 and 2012, showing a net increase in fisher habitat at the 
female home range scale (Spencer et al. 2016, pp. 44, A-21). However, 
the authors of this report have since cautioned that these conclusions 
may no longer be accurate based on ``dramatic changes [that] have 
occurred in Sierra Nevada mixed conifer forests due to drought and 
extraordinary tree mortality'' (Spencer et al. 2017, p. 1). 
Consequently, they recommended delaying application of habitat 
conservation targets until vegetation data can be updated and fisher 
habitat condition reassessed (Spencer et al. 2017, pp. 1-2). Hence, 
although our earlier analysis concluded that fisher habitat in the SSN 
subpopulation area may actually be increasing, we can no longer support 
that conclusion based on recent vegetation mortality.
    Extensive areas of suitable habitat remain unoccupied by fishers, 
suggesting that there are also areas where habitat may not be the 
limiting factor for current or potential fisher populations. Recent 
fisher surveys in the western Cascades of Oregon suggest fishers do not 
occur in the northern portion of the Cascades, and their former 
distribution may even be contracting southward (Moriarty et al. 2016, 
entire; Barry 2018, pp. 20-23, 31-32). Lack of fisher detections in 
large areas with suitable habitat raises questions about our 
understanding of suitable habitat within the Oregon Cascades, and what 
the limiting factors are for fishers in Oregon. One such mechanism 
could be predation. Recent research in California suggests that 
landscape changes as a result of disturbances over the past century may 
have altered the carnivore community and affected predation rates on 
fishers by bobcats (Wengert 2013, pp. 59-66, 93, 97-100); proximity to 
open and brushy areas (vegetation selected for by bobcats) increased 
the risk of predation on fishers. Hence, while vegetation management 
may not be affecting large areas of suitable fisher habitat, fishers 
may be precluded from using the habitat due to other limiting factors.
Vegetation Management Summary
    Old-forest losses on all ownerships combined in the past two 
decades were less than 2.5 percent per decade due to timber harvest 
within the NWFP area (which includes the NCSO subpopulation area), and 
3.1 percent per decade as a result of all disturbance types within the 
Sierra Nevada region (which includes the SSN subpopulation area). 
Additionally, and specifically within the SSN subpopulation area, 
fisher habitat appeared to be increasing until recent vegetation 
mortality due to fires and drought. However, it is difficult to 
conclude the degree to which vegetation management threatens fishers 
throughout the DPS. Given the large home range of fishers and the 
geographic extent of forest management activities throughout the range 
of the DPS, some fisher individuals are likely affected as a result of 
habitat impacts (e.g., Thompson and Clayton 2016, pp. 11-16; Purcell et 
al. 2018, pp. 60-61).
    Although fishers occur in landscapes and stands where timber 
harvest has occurred (e.g., Slauson et al. 2003, pp. 7-9; Self and 
Callas 2006, entire; Hamm et al. 2012, pp. 421-422; Clayton 2013, pp. 
7-19; Niblett et al. 2015, entire), there is no information on how 
different vegetation management activities affect fisher subpopulations 
and their persistence within the DPS's range. Analysis is further 
confounded because the category of vegetation management contains 
activities ranging from those that result in substantial loss of 
habitat attributes valuable to fishers (e.g., large clear-cut harvests 
that remove almost all tree canopy and structural features) to 
activities that modify habitat at small-scale levels yet appear to 
retain functionality as fisher habitat (e.g., minor reductions in 
canopy cover and retention of structural features suitable for rest 
sites, den sites, or prey production). In addition, some of the trend 
data we analyzed did not allow us to tease out vegetation management 
disturbance from disturbances due to fire or other natural events. 
Finally, there appears to be substantial amounts of unoccupied fisher 
habitat, suggesting that habitat is not limiting for fishers and, 
therefore, habitat loss is not a threat. However, this finding may also 
be due to errors in our understanding of habitat, or that our 
definition of fisher habitat includes conditions suitable for other 
factors that may be limiting fishers (e.g., unsuitable prey habitat or 
suitable predator habitat (see ``Disease or Predation,'' below)), or 
that still other factors unrelated to habitat are limiting fisher 
distribution. Consequently, based on the best available scientific and

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commercial information, we find that some levels of vegetation 
management may threaten fisher, and will continue to do so in the 
foreseeable future, but many of the effects are exacerbated by other 
forms of habitat loss such as tree mortality from drought and severe 
wildfires.

Exposure to Toxicants

    Rodenticides analyzed as a threat to fishers include first- and 
second-generation anticoagulant rodenticides and neurotoxicant 
rodenticides. First-generation anticoagulant rodenticides are in a bait 
form that is targeted for rodents to consume for several consecutive 
feedings (i.e., sublethal doses) that deliver a lethal dose. Second-
generation rodenticides are significantly more potent than first-
generation rodenticides because a lethal dose can be ingested in a 
single feeding. Additionally, second-generation rodenticides are more 
likely to poison predatory wildlife (e.g., fishers) that eat live or 
dead poisoned prey, or other non-target wildlife. Neurotoxicant 
rodenticides are delivered in either single or multiple doses and have 
highly variable potency (multiple hours or days).
    Both first- and second-generation anticoagulant rodenticides and 
neurotoxicant rodenticides are most often used to kill small mammals 
that are destroying crops. Rodenticides impair an animal's ability to 
produce several key blood-clotting factors (anticoagulant rodenticides) 
or affect brain and liver function (neurotoxicant rodenticides). 
Anticoagulant rodenticide exposure is manifested by such conditions as 
bleeding nose and gums, extensive bruises, anemia, fatigue, difficulty 
breathing, and also damage to small blood vessels, resulting in 
spontaneous and widespread hemorrhaging. A sublethal dose of a 
rodenticide can produce significant clotting abnormalities and 
hemorrhaging, leading to a range of symptoms, such as difficulty moving 
and the decreased ability to recover from physical injury. Ingestion of 
the neurotoxicant bromethalin has fast-acting and physical effects such 
as unsteadiness and weakness, and at higher dosage levels, seizures. 
Both anticoagulant and neurotoxicant rodenticides can change or impede 
normal movement and foraging behaviors of fishers and therefore may 
increase the probability of mortality from other sources.
    Both the draft and final Species Reports detail the exposure of 
fishers to rodenticides in the West Coast States (Service 2014, pp. 
149-166; Service 2016, pp. 141-159). Data available since completion of 
the final Species Report in 2016 continue to document exposure and 
mortalities to fishers from rodenticides in both the NCSO and SSN 
subpopulations (Gabriel and Wengert 2019, unpublished data, entire). 
Fishers monitored as part of other studies, and that have died during 
these studies, have been collected and tested for causes of mortality 
and exposure to rodenticides (Gabriel and Wengert 2019, unpublished 
data). Data for 97 fishers collected in California in the period 2007-
2014 indicate 81 percent of fishers tested positive for one or more 
rodenticides; 48 fishers were collected during 2015-2018, and the 
positive detection rate for rodenticides was 83 percent (Gabriel and 
Wengert 2019, unpublished data). Mortalities due to rodenticide 
toxicosis have increased from 5.6 to 18.7 percent since collection and 
testing of fisher mortalities began in 2007 (Gabriel et al. 2015, p. 
7). From 2015 to 2018, additional fisher mortalities due to both 
anticoagulant and neurotoxicant rodenticides have been documented, 
including data verifying the exposure of neonatal kits to rodenticides 
through transplacental transfer (Gabriel and Wengert 2019, unpublished 
data, p. 4).
    The most likely source of exposure of fishers to these toxicants 
continues to be rodenticides associated with illegal marijuana 
cultivation sites within occupied fisher habitat on public, private, 
and tribal lands in California and Oregon (Gabriel et al. 2015, pp. 14-
15; Thompson et al. 2014, pp. 97-98). Data pertaining to the amount and 
types of rodenticides has been collected in more than 300 trespass grow 
sites in California during the period 2012-2018 (Gabriel and Wengert 
2019, unpublished data, pp. 5-7). Collection of these data has shown 
that a lesser amount of second-generation rodenticides are being found 
at grow sites due to policy changes in 2014 related to pesticide use 
and additional restrictions now in place on the use of second-
generation rodenticides in California. The change in policy has led to 
a more intensive use of first-generation anticoagulant rodenticide and 
the highest amount of neurotoxicant rodenticide use since 2012 (Gabriel 
and Wengert 2019, unpublished data, pp. 5-7). Please see additional 
discussion on the effects of first- and second-generation rodenticides 
in the 2016 Species Report (Service 2016, pp. 150-159).
    Data are limited for the amount of pesticides used at sites outside 
of California. The U.S. Forest Service documented 63 trespass grows 
between 2006 and 2016, with toxicants present for all sites visited 
(Clayton 2019, pers. comm.). To date, only one site in southern Oregon 
has been sampled using the same protocol as in California. This 
southern Oregon location had 54 pounds (lb) (24.5 kilograms (kg)) of 
first-generation anticoagulant rodenticide and 8 lb (3.6 kg) of 
neurotoxicant rodenticide (Gabriel and Wengert 2019, unpublished data, 
p. 7) onsite.
    As was stated in our 2014 Proposed Rule, the extent to which 
rodenticides may act as a threat varies across the landscape and our 
[then] determination regarding this threat was influenced by the 
availability of data for different parts of the fisher's range. In 
order to evaluate the risk to fishers from trespass grows and any 
differences between populations, a Maximum Entropy (MAXENT) model was 
developed to identify high and moderate likelihood of trespass 
marijuana grow sites being located within fisher habitat (Gabriel and 
Wengert 2019, unpublished data, pp. 7-10). This model indicates that 44 
percent of habitat modeled (combined NCSO and SSN subpopulations) for 
fishers is within areas of high and moderate likelihood for marijuana 
cultivation. Separating these model results into the two fisher 
subpopulation areas (NCSO and SSN) indicates a difference in potential 
overlap of grow sites with fisher habitat between NCSO and SSN. In the 
NCSO subpopulation, there is a potential of 53 percent overlap between 
grow sites and fisher habitat; in the SSN subpopulation, there is a 
potential for 22 percent overlap of grow sites in fisher habitat. These 
modeled differences demonstrate the variability of this threat to 
fishers within the extant subpopulations. The extent to which the use 
of toxicants occurs on private land marijuana cultivation sites, as 
well as other agricultural, commercial, and public land sites within 
the range of the fisher (and habitats that fishers select for) is 
unknown.
    At this time, our evaluation of the best available scientific and 
commercial information regarding toxicants and their effects on fishers 
leads us to conclude that individual fishers within the NCSO and SSN 
subpopulations have died from toxicant exposure. New data indicate a 
total of 19 mortalities specifically within the monitored fisher 
subpopulations (in both NCSO and SSN in California) have been directly 
caused by toxicant exposure (Gabriel and Wengert 2019, unpublished 
data, p. 5). In addition, of the two fishers found in Oregon that were 
tested for rodenticide exposure, both tested positive (Clayton 2016, 
pers. comm.). Toxicologists assume that fishers exposed to one or

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more rodenticides and determined to have died from some other cause 
besides toxicosis were also experiencing sublethal levels of effects 
from these chemicals (from Rattner and Mastrota 2018, pp. 68-71; 
Elliott et al. 2016 in: L[oacute]pez-Perea and Mateo 2018, p. 159). The 
degree of impact from sublethal toxicant exposure is unknown (see 
additional discussion on sublethal exposure in the 2016 Species Report, 
pp. 150-156); complex behavioral responses like prey capture efficiency 
and predator avoidance are not well studied (Rattner and Mastrota 2018, 
pp. 68-71).
    Our analysis of this threat includes additional effort to 
reevaluate a variety of toxicant information in our files, including 
comments previously provided by peer reviewers on the 2014 Species 
Report, as well as new information such as:
    (1) Concentrations of active ingredients in bait and a description 
of how exposure to rodenticides is confirmed (Erickson and Urban 2004, 
entire; Vandenbrouke et al. 2008, entire; Rattner et al. 2014, 
entire)--The livers of various species where mortality has occurred 
show a wide range of thresholds of rodenticide concentrations and that 
a toxicity threshold would need to account for adverse sublethal 
effects (Erckson and Urban 2004, p. 95). Thus, due to differences in 
individual fishers and rodenticide exposure, it remains unknown at what 
level of toxicant exposure fishers may be experiencing adverse impacts.
    (2) Rodent diversity at marijuana cultivation sites--In grow sites 
sampled, rodent diversity at marijuana cultivation sites that were 
treated with rodenticides and sampled after remediation contained only 
mice, as compared to nearby untreated sites where rodenticides were not 
used and that contained large-bodied rodents (e.g., woodrats, 
squirrels, chipmunks). These larger bodied rodents are the prey species 
that the fisher prefers (Gabriel et al. 2017, p. 10). This information 
provides support for the possibility that fishers could experience 
indirect effects from rodenticide use such as preferred prey species 
shifting outside of their home range, or prey depletion within their 
home ranges. Changes in prey abundance within fisher home ranges could 
lead to impaired reproduction or starvation of the resident fishers.
    (3) Estimating the extent of fisher exposure to rodenticides and 
determining the source(s)--The delay in toxicity caused by rodenticides 
and their persistence within food webs can result in contaminated 
rodents being found within and adjacent to treated areas weeks or 
months after bait application (Geduhn et al. 2014, pp. 8-9; Tosh et al. 
2012, pp. 5-6; Sage et al. 2008, p. 215). Predators that are (a) 
nocturnal, (b) opportunistic in feeding habitats where rodents are an 
important part of their diet, and (c) nonmigratory and live close to or 
within landscapes that are heavily impacted by human activities (e.g., 
the grow sites) have a higher incidence of exposure to rodenticides and 
have relatively high liver residue concentrations of multiple 
rodenticide compounds (Hindmarch and Elliott 2018, p. 251). Because 
fishers are territorial (nonmigratory) mammals, and females 
specifically make few if any movements once they have established a 
territory (Arthur et al. 1993, p. 872), they are vulnerable to 
rodenticide exposure from grow sites within their home ranges. 
Additionally, fisher diets consist primarily of small mammals 
(Golightly et al. 2006, entire), which are the target species for 
rodenticides used in grow sites (Gabriel et al. 2015, entire; Thompson 
et al. 2014, pp. 97-98). Therefore, even though it may be difficult to 
assess persistence of rodenticides in food webs it is likely that 
fisher life-history traits make them vulnerable to long-term exposure 
to rodenticides.
    (4) Unreclaimed sites across the landscape. During the ``Operation 
Forest Watch, Department of Justice'' campaign in California between 
October 2017 and September 2018, more than 20,000 pounds of fertilizer, 
pesticides, and chemicals were removed from 160 trespass cannabis grow 
sites (Department of Justice (DOJ) 2018, p. 2). Currently, 766 sites 
are still in need of reclamation (DOJ 2018, p. 2). Of the 160 grow 
sites mentioned above, 89 percent were confirmed or strongly suspected 
to have carbofuran or methamidophos (i.e., toxic pesticides or 
insecticides that cause central nervous system dysfunction) present, up 
from the previous year total of 75 percent (DOJ 2018, p. 2). Estimates 
of the number of sites that necessitate reclamation of toxicants vary. 
In addition, law enforcement specialists estimate they locate and raid 
roughly 20 to 40 percent of sites each year and only about 10 percent 
of those are remediated (Thompson et al. 2017, p. 45). If these 
estimates are accurate, it is reasonable to conclude that hundreds to 
thousands of sites--known and unknown, and with an undetermined amount 
of toxicants present--remain scattered within both the NCSO and SSN 
subpopulations where trespass grows have been detected (Gabriel et al. 
2015, entire; Thompson et al. 2017, p. 45).
    (5) Cannabis cultivation contributing to forest fragmentation--
Expansion of cannabis cultivation as a landscape use on private land is 
changing forest conditions within areas currently occupied by fishers. 
In Humboldt County, California (a portion of the NCSO subpopulation 
area), a recent analysis examined changes to forest patch metrics 
between 2000 and 2013 (Wang et al. 2017, entire). While many of the 
watershed-scale changes were due to timber harvest, the smaller scale 
changes (e.g., approximately 0.4 mi\2\ (1 km\2\) of both timber harvest 
and cannabis cultivation) had many similar effects on forest 
fragmentation (Wang et al. 2017, pp. 4-5).
    (6) Habitat effects resulting from legal cannabis cultivation--
Since the 2014 Proposed Rule, the legal status of cannabis cultivation 
changed in Oregon (2015) and California (2016). We have no data to 
indicate that legalization of cannabis cultivation will change black 
market sales or how municipalities enacting local restrictions for 
cannabis cultivation on private lands will alter the number of illegal 
grows on public land. Data in Oregon pertaining to permitted cannabis 
cultivation show that, within counties currently occupied by fisher, 
405 legal operations have been approved (Oregon Liquor Control 
Commission 2019, pp. 12-13, 18-34). Given the rural nature of these 
Oregon counties (Jackson, Josephine, Curry), many of these operations 
likely occur within areas occupied by fishers. At this time, we have 
limited data about the prevalence of rodenticide use on legal private 
grow sites and whether fishers are at risk from rodenticide use on 
private land. However, we have documentation of one radio-collared 
fisher within a wildland urban interface area in Jackson County, 
Oregon, that tested positive for two rodenticides and whose home range 
included two grow sites and rural residences (Clayton 2019, pers. 
comm.).
    Marijuana cultivation sites are present on public and private land 
within or near fisher subpopulations in California and Oregon. The 
broad use of toxicants at illegal marijuana cultivation sites in these 
States has been documented to occur within or adjacent to habitat 
supporting fishers within the DPS (Gabriel and Wengert 2019, 
unpublished data, pp. 7-9). There are other possible sources of 
rodenticides from legal applications in agriculture and around 
buildings in rural areas. The legalization of marijuana in California 
and Oregon adds an element of uncertainty to evaluating the potential 
future effects of toxicant exposure to fishers. It is unknown whether 
or how the

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legalization of marijuana will change grow-site location and 
potentially affect exposure and mortality rates of fishers due to 
rodenticides. The incidence of fisher exposure to toxicants from all 
uses across its range is unknown, and the best available mortality data 
are limited (19 individuals in California), given there are no wide-
ranging studies across the DPS specifically focused on fisher toxicant 
exposure.
    We view toxicants as a potentially significant threat to fishers 
because of reported mortalities of fishers from toxicants, the variety 
of potential sublethal effects due to exposure to rodenticides, and the 
degree to which illegal cannabis cultivation overlaps with the range 
and habitat of the fisher. The exposure rate of more than 80 percent of 
fisher carcasses tested in the NCSO and SSN subpopulations has not 
declined between 2007 and 2018 (Gabriel and Wengert 2019, unpublished 
data, pp. 3-4), while toxicosis has increased since 2007 (Gabriel et 
al. 2015, p. 7). We do not know the exposure rate of live fishers to 
toxicants as the data has not been collected. In addition, the minimum 
amount of anticoagulant and neurotoxicant rodenticides required for 
sublethal or lethal poisoning of fishers is currently unknown; however, 
we have evidence of fisher mortality and sublethal effects as a result 
of rodenticides. Overall, rodenticides are likely a threat to fisher 
within the DPS now and in the foreseeable future, although we do not 
have information about the magnitude or mechanisms of population-level 
effects at this point in time.

Effects Associated With Small Population Size

    In general, species that occupy a narrow geographic range with 
specific habitat requirements and that always occur in small 
populations have a high conservation priority (Primack 2014, p. 158). 
Small populations are vulnerable to a rapid decline in their numbers 
and localized extinction due to the following: (1) Loss of genetic 
variability (e.g., inbreeding depression, loss of evolutionary 
flexibility), (2) fluctuations in demographic parameters (e.g., birth 
and death rates, population growth rates, population density), and (3) 
environmental stochasticity or random fluctuations in the biological 
(e.g., predation, competition, disease) and physical environment (e.g., 
wildfire, drought events, flooding) (Primack 2014, pp. 252-268). Some 
information is available that demonstrates fisher's vulnerability to 
small population effects, particularly in the SSN population area, 
including fisher's decreased genetic variability from north to south, 
limited gene flow, and existing barriers to dispersal (Wisely et al. 
2004, pp. 642-643; see also additional discussion in Service 2016, pp. 
134-137). While we do not have data across the entire range 
demonstrating that the West Coast DPS is exhibiting these specific 
effects associated with small population size, consideration of these 
three elements along with life-history traits can provide an extinction 
vulnerability profile for the West Coast DPS of fisher. In sum, this 
DPS exhibits the following attributes that may limit its distribution 
and population growth:
    (1) Loss of large contiguous areas of historical habitat in 
combination with restriction of the species to forested habitats that 
have been lost or modified due to timber harvest practices, human 
development, and large, high-severity wildfires whose frequency and 
intensity are in turn influenced by the effects of climate change.
    (2) Dependence on specific elements of forest structure that may be 
limited on the landscape, including microsites for denning and resting.
    (3) Susceptibility to injury or mortality due to predation from co-
occurring larger predators.
    Each of these vulnerabilities may separately, or together, 
exacerbate any of the threats described in this analysis for the West 
Coast DPS of fisher.
    A scarcity of verifiable sightings in the Oregon Cascades, coastal 
Oregon, and the north and central sections of the Sierra Nevada in 
California indicate that subpopulations of fishers in the DPS are 
isolated from fishers elsewhere in North America. Native fishers in the 
West Coast States are currently restricted to two historically extant 
native subpopulations (NCSO and SSN) and one extant reintroduced native 
subpopulation (NSN). The NCSO subpopulation has not expanded and may 
have even contracted, nor have fishers recovered portions of their 
range in Oregon beyond our previous estimates (Barry 2018, p. 22). We 
continue to recognize that the two geographic areas of fisher 
subpopulations in the DPS (i.e., SSN and NCSO, the latter of which 
includes the SOC and NSN for this analysis) are geographically isolated 
from one another with little opportunity for genetic interchange. 
Additionally, we continue to recognize that the SSN subpopulation is 
relatively small. With regard to small populations, we note that forest 
carnivore populations are often isolated and generally occur in low 
densities. Because we lack specific information about genetic processes 
in small, isolated forest carnivore populations, it is unknown whether 
generalities about persistence based on untested theoretical models may 
apply to fisher (Ruggiero et al. 1994, p. 146), at least with regard to 
the SSN subpopulation. In the specific case of fishers in this DPS, our 
evaluation of the best scientific and commercial information available 
indicates that the separation of the SSN and NCSO subpopulations 
occurred a very long time ago, possibly on the order of more than a 
thousand years, pre-European settlement (Tucker et al. 2012, pp. 1, 7). 
Despite their isolation and the small size of the SSN subpopulation, 
the native NCSO and SSN subpopulations have persisted over a long 
period of time.
    At this point in time, the fisher subpopulations are already 
considered relatively small, especially when taking into account the 
original/historical range of the species within the West Coast states, 
and the population growth rates do not indicate that the subpopulations 
are increasing. The best available information suggests these 
populations are expected to remain small (as has been apparent since 
pre-European settlement). The SSN subpopulation is likely to remain 
smaller than the NCSO subpopulation into the future, primarily given 
the other stressors that have the potential to exacerbate the impacts 
of small population size. Estimates of fisher population growth rates 
for the NCSO subpopulation and the portion of the SSN subpopulation 
surveyed do not indicate any overall positive or negative trend. The 
NCSO subpopulation, which encompasses both the SOC and NSN 
reintroduction sites, covers a relatively large geographic area of 
approximately 15,444 mi\2\ (40,000 km\2\). The most recent 
subpopulation size estimate is 3,196 individuals (range 2,507-4,184); 
however, this estimate excludes SOC and NSN individuals (Furnas et al. 
2017, pp. 2-3). Although the areas monitored for population trend are 
limited, for the Hoopa study area, the population trend from 2005 
through 2012 indicates a population growth rate of 0.992 (C.I. 0.883-
1.100) with a higher growth rate for females 1.038 (0.881-1.196) than 
males 0.912 (0.777-1.047) (Higley et al. 2014, p. 102, Higley 2015, 
pers. comm.). Additionally, the most recent information for the Eastern 
Klamath Study Area suggests a growth rate of 1.06 (C.I. 0.97-1.15, 
years 2006-2013) (Powell et al. 2014, p. 23); however, this growth rate 
may no longer be valid as suggested by 2 years of data (2014-2016) that 
follow two large fires in the study area, which indicate an

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estimated 40 percent reduction in the number of fishers post-fire 
(Green et al. 2019, p. 8).
    For the SSN subpopulation, which is smaller and estimated to range 
anywhere in size from 100 to 500 individuals (Service 2016, pp. 48-50), 
the population growth rate is estimated as 0.97 (C.I. 0.79-1.16, years 
2007-2014) (Sweitzer et al. 2015a, p. 784). At this point in time, we 
do not have sufficient information to predict whether population trends 
of the two DPS subpopulation areas will be positive or negative into 
the foreseeable future.
    Overall, a species (or DPS) with relatively few populations may be 
a concern when there are significant threats to the species such that 
one or more populations may be permanently lost in the future. One of 
the two remaining native fisher subpopulations, SSN, is considered 
relatively small, and both the SSN and NCSO subpopulations have not 
appeared to grow or expand, despite the availability of suitable 
habitat. At this time, the best available information for monitored 
subpopulations within the DPS (e.g., Green 2017, Higley et al. 2014, 
Powell et al. 2014, entire, Sweitzer et al. 2015a, entire) does not 
indicate whether the NCSO or SSN subpopulations, as a whole, are stable 
or exhibiting significant declines.

Existing Regulatory Mechanisms and Voluntary Conservation Measures

    We stated in the 2014 Proposed Rule, and we reaffirm here that 
there are many Federal and State existing regulatory mechanisms that 
provide a benefit to fishers and their habitat. For example, trapping 
restrictions have substantially reduced fisher mortality throughout the 
range of the West Coast DPS of fisher. In some places, forest 
management practices are explicitly applied to benefit fishers or other 
species with many similar habitat requirements, such as the northern 
spotted owl. In addition, some HCPs are in place and to provide a 
benefit to fishers and their habitat.
    State and Federal regulatory mechanisms have abated the large-scale 
loss of fishers to trapping and loss of fisher habitat, especially on 
Federal land (Service 2014, pp. 117-141). Additionally, rodenticides 
are regulated under Federal and State laws. However, fishers may still 
be exposed to such rodenticides in certain areas where they can still 
be used legally. Fishers are also exposed to some degree to 
rodenticides used illegally (as discussed below).

Forest Service and BLM

    A number of Federal agency regulatory mechanisms pertain to 
management of fisher (and other species and habitat). Most Federal 
activities must comply with the National Environmental Policy Act of 
1969, as amended (NEPA) (42 U.S.C. 4321 et seq.). NEPA requires Federal 
agencies to formally document, consider, and publicly disclose the 
environmental impacts of major Federal actions and management decisions 
significantly affecting the human environment. NEPA does not regulate 
or protect fishers, but requires full evaluation and disclosure of the 
effects of Federal actions on the environment. Other Federal 
regulations affecting fishers are the Multiple-Use Sustained Yield Act 
of 1960, as amended (16 U.S.C. 528 et seq.) and the National Forest 
Management Act of 1976, as amended (NFMA) (90 Stat. 2949 et seq.; 16 
U.S.C. 1601 et seq.).
    NFMA specifies that the Forest Service must have a land and 
resource management plan to guide and set standards for all natural 
resource management activities on each National Forest or National 
Grassland. Additionally, the fisher has been identified as a sensitive 
species by the Forest Service throughout its range. BLM management is 
directed by the Federal Land Policy and Management Act of 1976, as 
amended (43 U.S.C. 1704 et seq.). This legislation provides direction 
for resource planning and establishes that BLM lands shall be managed 
under the principles of multiple use and sustained yield. This law 
directs development and implementation of resource management plans, 
which guide management of BLM lands at the local level. Fishers are 
also designated as a sensitive species throughout its range on BLM 
lands.
    In addition, the NWFP was adopted by the Forest Service and BLM in 
1994 to guide the management of more than 24 million ac (9.7 million 
ha) of Federal lands within the range of the northern spotted owl, 
which overlaps with portions of the West Coast DPS of fisher's range in 
Oregon and northwestern California (U.S. Department of Agriculture 
(USDA) and U.S. Department of the Interior (USDI) 1994, entire). The 
NWFP Record of Decision amended the management plans of National 
Forests and BLM Districts and provided the basis for conservation of 
the northern spotted owl and other late-successional and old-growth 
forest associated species on Federal lands. However, in 2016 the BLM 
revised their Resource Management Plan (RMP), replacing NWFP direction 
for BLM-administered lands in western Oregon, totaling approximately 
2.5 million ac (1 million ha) (USDI BLM 2016a, 2016b, entire).
    Compared with management under the NWFP, BLM's revised RMP results 
in a decrease in land allocated for timber harvest, from 28 percent of 
their planning area in the Matrix allocation under NWFP, to 20 percent 
under their revised RMP. However, volume of timber harvest is expected 
to increase to 278 million board feet per year through the first 
decade, up from the highest NWFP annual amount of about 250 million 
board feet, and the average NWFP annual amount of 167 (USDI BLM 2015, 
pp. 350-352). Forest stand conditions assumed to represent fisher 
habitat are expected to decline in the first two decades under the 
revised RMP, similar to projections under the NWFP. However, by decade 
three, habitat is projected to increase under the revised plan compared 
to the NWFP because more fisher habitat is in reserve allocations under 
the revised plan (75 percent of fisher habitat on BLM land) than under 
the NWFP (49 percent) (USDI BLM 2015, pp. 1,704-1,709).
    Federal lands are important for fishers because they have retained 
a network of late-successional and old-growth forests (LSRs) that 
currently provide fisher habitat, and the amounts of habitat are 
expected to increase over time. Also, the National Forest and BLM units 
with anadromous fish watersheds provide buffers for riparian reserves 
on either side of a stream, depending on the stream type and size. With 
limited exceptions, timber harvesting is generally not permitted in 
riparian habitat conservation areas, and the additional protection 
guidelines provided by National Forests and BLM for these areas may 
provide refugia and connectivity among more substantive blocks of 
fisher habitat. Also, the Forest Service under the NWFP, while 
anticipating losses of late-successional and old-growth forests in the 
initial decades of plan implementation, projected that recruitment 
would exceed those losses within 50 to 100 years (Davis et al. 2015, p. 
7). Furthermore, BLM, under its revised management plans, is also 
projecting an increase in forest stand conditions that are assumed to 
represent fisher habitat above current conditions beginning in the 
third decade of plan implementation (USDI BLM 2015, p. 875).

National Park Service

    Statutory direction for the National Park Service lands within the 
range of the DPS is provided by provisions of the

[[Page 60297]]

National Park Service Organic Act of 1916, as amended (54 U.S.C. 
100101). Land management plans for the National Parks within Oregon and 
California do not contain specific measures to protect fishers, but 
areas not developed specifically for recreation and camping are managed 
toward natural processes and species composition and are expected to 
maintain fisher habitat. In addition, hunting and trapping are 
generally prohibited in National Parks (e.g., 16 U.S.C. 60, 98, 127, 
204c, and 256b).

Tribal Lands

    Several tribes within the range of the DPS recognize fishers as a 
culturally significant species, but only a few tribes have fisher-
specific guidelines in their forest management plans. Some tribes, 
while not managing their lands for fishers explicitly, manage for 
forest conditions conducive to fisher (for example, marbled murrelet 
(Brachyramphus marmoratus) habitat, old-forest structure restoration). 
Trapping is typically allowed on most reservations and tribal lands, 
and is frequently restricted to tribal members. Whereas a few tribal 
governments trap under existing State trapping laws, most have enacted 
trapping laws under their respective tribal codes. However, trapping 
(in general) is not known to be a common occurrence on any of the 
tribal lands.

Rodenticide Regulatory Mechanisms

    The threats posed to fishers from the use of rodenticides are 
described under ``Exposure to Toxicants,'' above. In the 2016 final 
Species Report (Service 2016, pp. 187-189), we analyzed whether 
existing regulatory mechanisms are able to address the potential 
threats to fishers posed from both legal and illegal use of 
rodenticides. As described in the 2016 final Species Report, the use of 
rodenticides is regulated by several Federal and State mechanisms 
(e.g., Federal Insecticide, Fungicide, and Rodenticide Act of 1947, as 
amended, (FIFRA) 7 U.S.C. 136, et seq.; California Final Regulation 
Designating Brodifacoum, Bromadiolone, Difenacoum, and Difethialone 
(Second Generation Anticoagulant Rodenticide Products) as Restricted 
Materials, California Department of Pesticide Regulation, 2014). The 
primary regulatory issue for fishers with respect to rodenticides is 
the availability of large quantities of rodenticides that can be 
purchased under the guise of legal uses, but are then used illegally in 
marijuana grows within fisher habitat. Both the Environmental 
Protection Agency (EPA), through its 2008 Risk Mitigation Decision for 
Ten Rodenticides (EPA 2008, entire), which issued new legal 
requirements for the labeling, packaging, and sale of second-generation 
anticoagulants, and California's Department of Pesticide Regulation, 
through a rule effective in July 2014, which restricts access to 
second-generation anticoagulants, are attempting to reduce the risk 
posed by second-generation anticoagulants.

State Regulatory Mechanisms

Oregon
    The fisher is a protected wildlife species, which prohibits killing 
or possessing fishers in the State of Oregon (Oregon Administrative 
Rule (OAR) 635-044-0430). In addition, ODFW does not allow trapping of 
fishers in Oregon. Although fishers can be injured and/or killed by 
traps set for other species, known fisher captures are infrequent. 
State parks in Oregon are managed by the Oregon Parks and Recreation 
Department, and many State parks in Oregon provide forested habitats 
suitable for fisher. The Oregon Forest Practice Administrative Rules 
(OAR chapter 629, division 600) and Forest Practices Act (Oregon 
Revised Statutes (ORS) 527.610 to 527.770, 527.990(1) and 527.992) (ODF 
2018, entire) apply to all non-Federal and non-tribal lands in Oregon, 
regulating activities that are part of the commercial growing and 
harvesting of trees, including timber harvesting, road construction and 
maintenance, slash treatment, reforestation, and pesticide and 
fertilizer use. The OAR provides additional guidelines intended for 
conserving soils, water, fish and wildlife habitat, and specific 
wildlife species while engaging in tree growing and harvesting 
activities, and these rules may result in retention of some structural 
features (i.e., snags, green trees, downed wood) that contribute to 
fisher habitat. Management of State forest lands is guided by forest 
management plans. Managing for the structural habitats as described in 
existing plans should increase habitat for fishers on State forests.
California
    At the time of the 2014 Proposed Rule, fishers were a Candidate 
Species in California; thus, take (under the CESA definition) was 
prohibited during the candidacy period. On June 10, 2015, CDFW 
submitted its status review of the fisher to the California Fish and 
Game Commission, indicating that listing of the fisher in the Southern 
Sierra Nevada ESU as threatened was warranted, but that fishers in the 
Northern California ESU were not threatened (CDFW 2015, entire). On 
August 6, 2015, the California Fish and Game Commission voted to list 
the southern Sierra Nevada Evolutionarily Significant Unit (ESU) of the 
fisher as a threatened species under the California Endangered Species 
Act (CESA). Consequently, take (i.e., removing, harming, or killing a 
protected species), is prohibited by California only in the southern 
Sierra Nevada portion of the proposed DPS's range. It is also illegal 
to intentionally trap fishers in California (Cal. Code Regs. title 14, 
Sec.  460 (2017).
    The California Environmental Quality Act (CEQA) can provide 
protections for a species that meets one of several criteria for rarity 
(CEQA 15380). Fishers throughout the proposed DPS's range in California 
meet these criteria, and under CEQA, a lead agency can require that 
adverse impacts be avoided, minimized, or mitigated for projects 
subject to CEQA review that may impact fisher habitat. All non-Federal 
forests in California are governed by the State's Forest Practice Rules 
(FPR) under the Z'Berg Nejedly Forest Practice Act of 1973, a set of 
regulations and policies designed to maintain the economic viability of 
the State's forest products industry while preventing environmental 
degradation. FPRs do not contain rules specific to fishers, but they 
may provide some protection of fisher habitat as a result of timber 
harvest restrictions.

Voluntary Conservation Mechanisms

Northern California-Southern Oregon (NCSO)
    An intergovernmental MOU for fisher conservation was signed by 
Federal and State agencies in Oregon (DOI et al. 2016, entire) to 
facilitate fisher conservation activities. The western Oregon template 
fisher CCAA (81 FR 15737, March 24, 2016) has been published, and we 
are negotiating site plans and processing permit applications. 
Conservation actions in the CCAA include protection of occupied den 
sites as well as landowner participation and collaboration with fisher 
surveys and research as part of a defined program of work.
    In 2009, a programmatic Safe Harbor Agreement (SHA) was completed 
for northern spotted owls in Oregon (74 FR 74 35883, July 21, 2009). 
The agreement authorizes the ODF to extend incidental take coverage 
with assurances through issuance of Certificates of Inclusion to 
eligible, non-Federal landowners who are willing to carry out habitat 
management measures benefitting the northern spotted owl. The purpose 
of

[[Page 60298]]

the agreement is to encourage non-Federal landowners to create, 
maintain, and enhance spotted owl habitat through forest management, 
which would also benefit fishers given the two species' use of similar 
habitat components.
    In 2016, an approximately 1.6 million-ac (647 thousand-ha) CCAA for 
fishers on lands in Sierra Pacific Industries (SPI) ownership in the 
Klamath, Cascade, and Sierra Nevada mountains was completed (SPI and 
Service 2016, entire). This CCAA encompasses approximately 5 percent of 
potentially suitable fisher habitat in California, 2.7 percent of which 
is within the currently occupied range. Implementation and monitoring 
has been under way since that time. The objectives of this CCAA are to 
secure general forested habitat conditions for fishers for a 10-year 
time period and the retention of important fisher habitat components 
(large trees, hardwoods, and snags) suitable for denning and resting 
into the future.
    In 2019, we finalized an incidental take permit for the Green 
Diamond Forest HCP (GDRC 2018, entire), which is anticipated to provide 
a conservation benefit for fishers and their habitat (portions of 
forests on the west slope of the coastal and Klamath Mountains) in Del 
Norte and Humboldt Counties, California. Conservation benefits 
anticipated include (but are not limited to): Identifying and retaining 
fisher denning and resting trees, including maintaining a 0.25-mi (402-
m) radius no-harvest buffer around active fisher dens; fisher-proofing 
water tanks and pipes; implementing measures that detect, discourage, 
and remove unauthorized marijuana cultivation and associated pesticide 
use; and cooperating with any Federal or State-approved fisher capture 
and relocation/reintroduction recovery programs (Service 2019a, p. 2).
Southern Sierra Nevada (SSN)
    The Sierra Nevada Fisher Working Group completed a conservation 
strategy in 2016 (Spencer et al. 2016, entire), but the authors of the 
report later released a changed circumstances letter due to new tree 
mortality information (Spencer et al. 2017, entire). The changed 
circumstances letter provides details on the conservation measures that 
may no longer be applicable and an interim process for designing and 
evaluating vegetation management projects. Current benefits that still 
exist for fisher from the conservation strategy and the changed 
circumstances letter include long-term desired conditions representing 
a range of characteristics to strive for in various areas to inform 
fine-scale assessment of key fisher habitat elements, including their 
connectivity within potential home ranges and across the landscape 
(Spencer et al. 2017, pp. 2-6). A revised/final conservation strategy 
that addresses the new tree mortality information does not yet exist.

Resiliency, Representation, and Redundancy of the West Coast DPS of 
Fishers

    In this section, we synthesize the information above to evaluate 
resiliency, redundancy, and representation as they relate to fishers in 
the proposed West Coast DPS both currently and into the future.
     Resiliency reflects a species' ability to withstand 
stochastic events (events arising from random factors). Resiliency 
refers to the capacity of an ecosystem, population(s) (or DPS), or 
organism to recover quickly from disturbances such as random 
fluctuations in reproductive rates and fecundity (demographic 
stochasticity), variations in temperature or rainfall (environmental 
stochasticity), and the effects of anthropogenic activities. Resilient 
populations demonstrate an ability to tolerate or adapt to changes or 
effects caused by a disturbance or a combination of disturbances.
     Redundancy reflects a species' ability to withstand 
catastrophic events (such as a rare destructive natural event or 
episode involving one or many populations). Redundancy is about 
spreading the risk of such an event across multiple or large resilient 
population(s). As such, redundancy can be measured by the number or 
distribution of resilient population(s) across the range of the 
species. In this context, a species with adequate or high-level 
redundancy compensates for fluctuations in or loss of populations 
across the species' range such that the loss of a single population (or 
a portion of a single large population) has little or no lasting effect 
on the structure and functioning of the species as a whole.
     Representation characterizes the ability of a species to 
adapt to changing environmental conditions. This adaptive potential can 
be measured by genetic and ecological variability. Representation is 
directly correlated to a species' ability to adapt to changes (natural 
or human-caused) in its environment.
    The degree of resiliency of a species (or a DPS) is influenced by 
both the representation and redundancy of the species. Resiliency 
increases with increasing genetic diversity or a higher number of 
individuals; it decreases when the species has less genetic diversity 
or fewer individuals. Resiliency can also decrease depending on the 
magnitude, extent, and immediacy of impacts affecting one or more 
populations. In the case of the proposed West Coast DPS of fisher, 
resiliency may be lower than historical levels to some degree because 
the total population size is considered by some as small, particularly 
in the SSN subpopulation; although, forest carnivores generally occur 
at low densities (Ruggiero et al. 1994, p. 146).
    The West Coast DPS of fisher faces a variety of threats including 
loss and fragmentation of habitat (i.e., from high-severity wildfire 
and wildfire suppression actions, climate change, forest insects and 
tree diseases, vegetation management, and development) and potential 
direct impacts to individuals (e.g., increased mortality, decreased 
reproductive rates, increased stress/hormone levels, alterations in 
behavioral patterns) from wildfire, increased temperatures, increased 
tree mortality, disease and predation, exposure to toxicants, and 
potential effects associated with small population size. These threats 
(some more than others) cumulatively play a large role in both the 
current and future resiliency of the species. Of greatest importance at 
this time are:
    (1) The long-term suitability of habitat conditions throughout the 
DPS's range given the continued presence/extent of high-severity and 
wide-ranging wildfires, and prolonged drought conditions that 
exacerbate forest insects and tree diseases. These conditions: (a) 
Reduce the availability of the natural resources (e.g., appropriate 
canopy cover, old growth forest structure with large trees and snags) 
that the species relies on to complete its essential life-history 
functions, (b) contribute to increased stress hormones (cortisol) and 
reduced female fisher survival (as noted in one study in a portion of 
the SSN subpopulation), and (c) increase habitat fragmentation within 
and between populations.
    (2) The sustained presence of toxicants from marijuana grow sites 
across a likely significant proportion of the landscape (primarily the 
NCSO subpopulation area) that contribute to continued fisher 
mortalities. Fisher mortalities continue to occur either by direct 
consumption or sublethal exposure to anticoagulant rodenticides, the 
latter of which may increase fisher death rates from other impacts such 
as predation, disease, or intraspecific conflict.
    (3) Continued fragmentation of habitat in conjunction with the 
isolation and

[[Page 60299]]

potential inbreeding (due to an overall small population size) of the 
SSN subpopulation (see the SSN subpopulation discussion above under 
``Current Condition of the West Coast DPS of Fisher'') when taking into 
account primarily (1) above (and likely to an insignificant degree (2) 
above). The ongoing threats exacerbate this subpopulation's 
vulnerability to extinction from stochastic events. Regardless of this 
subpopulation's potential for growth into the small amount of available 
but unoccupied suitable habitat present, we do anticipate this 
subpopulation will be small into the long-term future (see also Service 
2016, pp. 133-137). Comments on the 2014 Proposed Rule received to date 
generally agree that the SSN subpopulation is small. Comments received 
to date on the NCSO subpopulation vary widely between consideration of 
this subpopulation as large or small.
    Overall, the West Coast DPS of fisher has remained somewhat 
resilient across its current range given the degree of habitat loss and 
fragmentation from prolonged drought conditions and wildfire impacts, 
coupled with mortalities from toxicants (both anticoagulant and 
neurotoxicant rodenticides), and given at least some reduced female 
survival associated with increased stress hormones and reduced habitat 
suitability documented in a portion of the SSN subpopulation (see 
``Forest Insects and Tree Diseases,'' above). However, considering the 
best available science and information at this time, it is likely that 
the resiliency of the DPS is likely to decrease in the near-term future 
given the cumulative impacts associated with current climate change 
model predictions for continued periodic but prolonged drought 
conditions, predictions of continued and increased intensity of 
wildfires across southern Oregon and northern California, the high 
likelihood of continued presence and spread of forest insect and tree 
diseases, and the low likelihood that a significant proportion of 
existing toxicants on the landscape would be removed in the near-term 
future.
    Multiple, interacting populations across a broad geographic area or 
a single wide-ranging population (redundancy) provide insurance against 
the risk of extinction caused by catastrophic events. As was known at 
the time of the 2014 Proposed Rule, population redundancy continues to 
exist across the range of the DPS as a result of there being two native 
subpopulations: (1) The NCSO subpopulation (which for the purposes of 
this analysis and as described in this proposed rule, incorporate the 
interbreeding nonnative SOC subpopulation and the adjacent native NSN 
subpopulation) in southern Oregon and northern California; and (2) the 
SSN subpopulation in the Sierra Nevada range of California. The 
existence of these subpopulations, one of which is broadly distributed, 
contributes to the probability that fishers in the DPS will persist 
into the future and contribute to long-term genetic and demographic 
viability across the range. If either the NCSO or SSN native 
subpopulations or a significant proportion of the wider-ranging NCSO 
subpopulation were to be permanently lost, the fisher's redundancy in 
the DPS would be lowered, thereby decreasing the DPS's chance of 
survival in the face of potential environmental, demographic, and 
genetic stochastic factors and catastrophic events (extreme drought, 
wildfire, etc.).
    We consider representation (i.e., demographic persistence and 
preservation of overall genetic diversity) across the West Coast DPS of 
fisher to be moderate at this point in time, considering the 
persistence of two native (NCSO and SSN) subpopulations, including the 
reintroduced native NSN individuals. Also taken into consideration are 
the nonnative fishers reintroduced as the SOC subpopulation (now 
documented to be interbreeding with the NCSO native subpopulation); 
technically, these genes provide for increased representation. Finally, 
native fishers no longer appear to be present in some fragmented, 
suitable habitat areas across the DPS's range, including (but not 
limited to) north of the NSN reintroduction site, fragmented areas 
throughout portions of the NCSO subpopulation area, and throughout most 
of the unoccupied, suitable habitat in central and northern Oregon. 
Overall, fishers are represented across a smaller range than their 
historical presence, and occur in smaller numbers than historically 
with some introduction of nonnative genes from the NSN reintroduction.

Determination of the West Coast DPS of Fisher

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a ``threatened species'' as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The Act requires that we determine whether a species meets the 
definition of ``endangered species'' or ``threatened species'' because 
of any of the following factors: (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.

Status Throughout All of Its Range

    We evaluated threats to the species and assessed the cumulative 
effect of the threats under the section 4(a)(1) factors. Our 2016 
Species Report (Service 2016, entire) is the most recent detailed 
compilation of fisher ecology and life history, and has a significant 
amount of analysis related to the potential impacts of threats within 
the DPS's range. In addition, we collected and evaluated new 
information available since 2016 to ensure a thorough analysis, as 
discussed above. Our analysis as reflected in this finding included our 
reassessment of the previous information and comments received on the 
2014 Proposed Rule regarding the potential impacts to the West Coast 
DPS of fisher, as well as our consideration of new information 
regarding the past, present, and future threats to the DPS.
    We considered whether the West Coast DPS of fisher is presently in 
danger of extinction, and determined that endangered species 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 two subpopulations 
occurring across a large portion of the DPS's range, the current 
condition of the species still provides for enough resiliency, 
redundancy, and representation such that it is not currently in danger 
of extinction.
    At this time, the best available information suggests that future 
resiliency for the West Coast DPS of fisher is low. As discussed above 
in the ``Risk Factors for the West Coast DPS of Fisher'' section (along 
with some detail in the 2014 draft and 2016 final Species Reports 
(Service 2014 and 2016, entire)), the species faces a variety of 
threats including: Loss and fragmentation of habitat resulting from 
high-severity

[[Page 60300]]

wildfire and wildfire suppression, climate change, forest insects and 
tree diseases, vegetation management, and development; and potential 
direct impacts to individuals (e.g., increased mortality, decreased 
reproductive rates, increased stress/hormone levels, alterations in 
behavioral patterns) from wildfire, increased temperatures, increased 
tree mortality, disease and predation, exposure to toxicants, and 
potential effects associated with small population size (primarily the 
SSN subpopulation).
    Currently, fishers in the West Coast DPS exist in two extant 
subpopulations: One small SSN subpopulation, and a larger NCSO 
subpopulation. The estimate of the SSN subpopulation is approximately 
300 individuals (range = low of 100 to a high of 500 individuals), but 
there is no statistically detectable trend in population size or 
growth. There are no discernible positive or negative total trends in 
the NCSO subpopulation, and studies have suggested both positive and 
negative population trends at various times and at localized study 
sites. The most recent estimate of the NCSO subpopulation (excluding 
NSN and SOC is 3,196 individuals (range = low of 2,507 to a high of 
4,184 individuals) (Furnas et al. 2017, p. 12). Overall, the West Coast 
DPS of fisher exists in two separate subpopulations (with the SSN 
subpopulation appearing significantly smaller than the NCSO 
subpopulation; see NCSO and SSN population descriptions, above, under 
``Current Condition of the West Coast DPS of Fisher'') that have 
persisted but do not appear to be expanding.
    We took into consideration all of the threats operating within the 
NCSO and SSN subpopulation areas that currently represent the West 
Coast DPS of fisher; these subpopulations are reduced in size due to 
historical trapping and past loss of late-successional habitat and, 
therefore, are more vulnerable to extinction from random events and 
increases in mortality. We evaluated the potential for synergistic 
effects (interaction of two or more threats that produce an effect 
greater than the sum of their individual effects) of multiple threats, 
although we are unable to quantify the scope and degree of synergistic 
effects and the variation of these effects across the landscape. 
However, just as threats are not occurring in equal scope and degree 
across the DPS's range, it is reasonable to conclude that the effects 
from these threats are occurring more in some areas than others. Some 
examples of the synergistic effects of multiple threats on fisher 
include:
     Destruction, modification, or curtailment of habitat, 
which may increase fishers' vulnerability to predation (Factors A and 
C);
     Impacts associated with climate change, such as increased 
risk of wildfire and tree mortality (tree insects and disease), and 
environmental impacts of human development, that will likely interact 
to cause large-scale ecotype conversion including shifts away from 
habitat types used by fisher, which could impact the viability of 
populations and reduce the likelihood of reestablishing connectivity 
(Factors A and E);
     Increases in disease caused by climate change (Factors A 
and C); and
     Human development (primarily within the Sierra Nevada), 
which is likely to cause increases in vehicle collisions, conflicts 
with domestic animals, and infections contracted from domestic animals 
(Factors A, C, and E).
    Depending on the scope and degree of each of the threats and how 
they combine cumulatively, these threats can be of particular concern 
where populations are small and isolated. The cumulative effect (all 
threats combined) is of concern currently and particularly so in the 
foreseeable future, mainly in areas not managed for retention and 
recruitment of fisher habitat attributes, areas sensitive to climate 
change, and areas where direct mortality of fishers reduces their 
ability to maintain or expand their populations (Service 2014, pp. 166-
169). Additionally, although there is currently a wide array of 
regulatory mechanisms and voluntary conservation measures in place to 
provide some benefits to the species and its habitat (see ``Existing 
Regulatory Mechanisms and Voluntary Conservation Measures,'' above), 
these measures are currently insufficient to protect the species from 
becoming an endangered species in the foreseeable future as a result of 
the current scope and degree of the threats (in particular threats 
related to illegal rodenticide use, increasing high-severity wildfires, 
and prolonged droughts that exacerbate the effects from wildfire, 
forest insects, and tree disease.
    Overall and as stated above, we found that several threats are 
likely resulting in population-level impacts (as opposed to impacts to 
a few individuals) within the DPS's range, although there is some 
uncertainty in regard to the scope and degree of impacts. While there 
is uncertainty, the best available information suggests that impacts 
occur in both the NCSO and SSN subpopulations, although they appear 
particularly problematic in the SSN subpopulation area because of the 
narrow band of habitat that comprises this subpopulation and probable 
negative impacts associated with its small population size. As noted in 
our analysis, preliminary habitat-based population models suggest that 
the configuration of habitat affects population numbers in this region, 
and that some areas with high-quality habitat may remain unoccupied 
even at equilibrium population sizes, probably due to restricted 
connectivity between these locations and the main body of the 
population (Service 2016, p. 44; Rustigian-Romsos 2013, pers. comm.). 
Therefore, the cumulative impacts related to the habitat-based threats 
are likely to have a negative effect on the DPS because connectivity 
would likely decrease further (Service 2016, p. 69).
    For the mortality-related threats, we reaffirm our quantitative 
assessment from 2014 regarding potential cumulative impacts in those 
portions of the DPS's range where data were available to do so. For 
fishers within this DPS, mortality related to research activities, 
collisions with vehicles, and anticoagulant rodenticide poisoning 
collectively add 3-17 percent annual mortality to naturally occurring 
mortality from disease and predation (collectively 6-32 percent 
mortality) and other natural sources such as starvation (as was last 
analyzed/reported in the final Species Report (Service 2016, p. 160)). 
For example, modeling completed for the SSN subpopulation demonstrate 
that a 10 to 20 percent increase in mortality rates could prevent 
fisher populations from the opportunity to expand in the future 
(Spencer et al. 2011, pp. 10-12). Coupled with habitat-related threats, 
the best available information suggests that cumulative effects to the 
West Coast DPS of fisher are reducing the resiliency of fisher 
subpopulations to such a degree that the species is likely to become an 
endangered species in the foreseeable future throughout all of its 
range (in other words, the future resiliency for the West Coast DPS of 
fisher is likely to be low). We also recognize that there likely will 
be differences in how the threats, both singly and cumulatively, 
present themselves across the landscape within the DPS's range.
    Based on our review of the best scientific and commercial data 
available, we have determined the West Coast DPS of fisher meets the 
definition of a threatened species under the Act. Per our 2014 draft 
and 2016 final Species Reports, as well as our most recent analysis 
summarized herein, we find the most significant threats to the West 
Coast DPS are the cumulative

[[Page 60301]]

impact of all identified threats, especially habitat loss and 
fragmentation due to high-severity wildfire (Factor A) and vegetation 
management (Factor A) (noting that forest insects and tree diseases are 
exacerbated by changing climate conditions and thus also play a role 
under Factor A), and exposure to toxicants (Factor E). The existing 
regulatory mechanisms (Factor D) are not sufficient to address these 
threats to the level that the species does not meet the definition of a 
threatened species. We also find that the threat of trapping (Factor B) 
that was prevalent in the early 1900s is no longer a threat to the West 
Coast DPS of fisher, but the two extant populations are not expanding 
geographically even though this threat has been removed.
    Thus, after assessing the best available information, we conclude 
that the West Coast DPS of fisher is not currently in danger of 
extinction, but is likely to become in danger of extinction within the 
foreseeable future (estimated as 35-40 years) throughout all of its 
range. In reaching this conclusion, we have considered available 
conservation measures and existing regulatory mechanisms that may 
ameliorate these threats.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. Because we have determined that the West Coast DPS of fisher 
is likely to become an endangered species within the foreseeable future 
throughout all of 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 Act. Under this reading, we should first 
consider whether the species warrants listing ``throughout all'' of its 
range and proceed to conduct a ``significant portion of its range'' 
analysis if, and only if, a species does not qualify for listing as 
either an endangered or a threatened species according to the 
``throughout 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.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the West Coast DPS of fisher meets the 
definition of a threatened species. Therefore, we propose to list the 
West Coast DPS of fisher as a threatened species in accordance with 
sections 3(20) and 4(a)(1) of the Act.

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 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 Yreka Fish and Wildlife 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 (for example, 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 the West Coast DPS of fisher 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 West Coast DPS of 
fisher. Information on our grant programs that are available to aid 
species recovery can be found at: http://www.fws.gov/grants.
    Although the West Coast DPS of fisher 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

[[Page 60302]]

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 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.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities as well as toxicant use on Federal lands administered by the 
U.S. Fish and Wildlife Service, U.S. Forest Service, BLM, and National 
Park Service; issuance of section 404 Clean Water Act permits by the 
Army Corps of Engineers; and construction and maintenance of roads or 
highways by the Federal Highway Administration.

II. Critical Habitat

    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 shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that:
    (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 Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) 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;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdictions of the United States provide 
no more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    We did not identify any of the factors above to apply to the West 
Coast DPS of fisher. Therefore, we find designation of critical habitat 
is prudent for the West Coast DPS of fisher.
    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 not yet complete, and we are in the process of 
working with the States and other partners in acquiring the complex 
information needed to perform that assessment. Because the information 
sufficient to perform a required analysis of the impacts of the 
designation is lacking, we therefore find designation of critical 
habitat for the West Coast DPS of fisher to be not determinable at this 
time.

III. Proposed Rule Issued Under Section 4(d) of the Act

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 West Coast DPS of fisher with some exceptions, in 
accordance with section 4(d) of the Act. In other words, we are not 
applying the full suite of section 9(a)(1) protections to the West 
Coast DPS of fisher, and instead are including some exceptions to the 
section 9(a)(1) prohibitions for specific management activities that 
result in a long-term benefit to the species.
    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 regulations 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

[[Page 60303]]

Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

Proposed 4(d) Rule for the West Coast DPS of Fisher

    As explained above, we have determined that the West Coast DPS of 
fisher meets the definition under the Act of a threatened species, in 
that it is likely to become an endangered species within the 
foreseeable future throughout its range. As such, we are proposing to 
add the West Coast DPS of fisher as a threatened species to the List of 
Endangered and Threatened Wildlife (50 CFR 17.11). However, we have 
also determined that it is necessary and advisable to issue protective 
regulations under section 4(d) of the Act in order to reduce the 
likelihood of the West Coast DPS of fisher becoming an endangered 
species. Under our proposed section 4(d) rule, except as described and 
explained below, all prohibitions and provisions that apply to 
endangered wildlife under section 9(a)(1) of the Act would apply to the 
West Coast DPS of fisher. Applying these section 9(a)(1) prohibitions 
will help minimize threats that could cause further declines in the 
status of the species for this DPS. Central to the protections afforded 
by this application is the prohibition of take. Take is defined under 
the Act as to ``harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct,'' 
and, therefore, any actions that would result in unlawful take of the 
species would be prohibited as a result of this proposed section 4(d) 
rule.
    The fisher is a forest-dwelling species, and, as such, the 
potential for take may arise anywhere the effects of actions coincide 
with the occupied forested habitat in the range of this DPS. Numerous 
forest management activities occur within the range of the DPS, many of 
which could potentially result in take of fishers, either through death 
or injury to fishers resulting from significant habitat modification or 
degradation of their habitat. However, we also recognize that many of 
these activities are conducted under the scope of forest management 
plans or actions that are likely to have an overarching net beneficial 
impact for the conservation of fishers in this DPS. Therefore, while 
activities conducted under such forest management plans or actions may 
result in some short-term or small level of localized negative effect 
to fishers, we are providing exceptions to the section 9(a)(1) 
prohibitions for these activities, as we believe doing so will provide 
a net conservation benefit for the species.
    Our first exception is aimed at forestry management activities for 
the purposes of reducing the risk or severity of wildfires. The 
proposed exception states that these activities could include forest 
management practices such as those to remove horizontal and vertical 
fuels, to remove fuels within 150 ft (45.7 m) of legally permitted 
structures and within 300 ft (91.4 m) of habitable structures, or to 
implement Fuel Break/Defensible Space Prescriptions that allow for the 
removal of trees or other vegetation to create shaded fuel breaks along 
roads or natural features or to create defensible space. All actions 
taken during a wildfire to support fire suppression activities would 
also be exempt.
    With regard to Exception 1, we note that the long-term viability of 
the fisher, as with many wildlife species, is intimately tied to the 
condition of its habitat. As described in our analysis of the species' 
status, one of the primary driving threats to the fisher's continued 
viability is the destruction of its habitat from large-scale, stand-
replacing wildfires (see ``Wildfire and Wildfire Suppression,'' above). 
Because of climate change and warming temperatures, the increase in the 
frequency and severity of these large-scale, stand-replacing wildfires 
increases the risk to the species from this threat. Actions taken by 
forest managers in the range of the fisher to reduce the risk or 
severity of uncharacteristically large and severe wildfires, while 
potentially resulting in some short-term or localized negative effects 
to fishers, will likely further the goal of reducing the likelihood of 
the species from becoming an endangered species, and will ultimately 
contribute to its conservation and long-term viability. Therefore, we 
will not apply the section 9(a)(1) prohibitions to these actions. 
Although we propose this exception to take prohibitions for these 
forest management activities, we encourage forest managers to design 
them in a way that avoids take of fishers provided the fire reduction 
purposes of the activities still can be achieved.
    Our second exception is related to forestry management activities 
conducted in the range of the West Coast DPS of fisher pursuant to a 
fisher conservation plan or strategy approved by the Service or the 
California Department of Fish and Wildlife. With regard to this 
exception, we note that extensive work has gone into developing 
specific forest management measures, as part of overarching fisher 
conservation plans or strategies, which can contribute to the 
conservation needs of the fisher. Forest management conducted under the 
scope of such publicly available fisher conservation plans or 
strategies (e.g., Southern Sierra Nevada Fisher Conservation Strategy 
(Spencer et al. 2016, entire; and subsequent addendum letter, Spencer 
et al. 2017)) that include the objectives outlined below, while having 
the potential to result in some small level of localized disturbance or 
temporary negative effects to fishers or their habitats, is expected to 
improve overall habitat conditions and contribute to the species' 
overall long-term viability. Therefore, we will not prohibit incidental 
take of fishers that may occur as a result of actions implemented under 
such conservation plans or strategies.
    Our third exception is aimed at forestry management activities 
conducted in the range of the West Coast DPS of fisher and with Federal 
or State oversight that are not specifically designed as fisher 
conservation plans or strategies, but are nevertheless consistent with 
the conservation needs of the West Coast DPS of fisher. Activities 
consistent with the conservation needs of fisher could include the 
following measures: Retention of known den and rest sites; retention of 
multi-layered, structurally diverse forests; retention of larger 
diameter trees, including those with damage or decay; increased 
vegetation diversity, including desirable species such as hardwoods or 
mast- or fruit-bearing trees; retention of shrubs and smaller trees in 
areas with sparse overstory cover; and no poisoning of prey species, 
such as mountain beavers, porcupines, snowshoe hares, and woodrats.
    With regard to Exception 3, we acknowledge that there are forest 
management activities conducted under management mechanisms that are 
not specifically designed for fisher conservation, in contrast to 
Exception 2 above, but that are implemented in ways that serve to 
maintain forest habitat conditions beneficial to fishers. The 
management mechanisms included under this Exception vary, but all are 
conducted with Federal or State oversight. While activities conducted 
under such mechanisms have the potential to result in some small level 
of localized disturbance or temporary negative effects to fishers or 
their habitats, the overall forest habitat will be maintained in 
conditions beneficial to fishers, which will contribute to the DPS's 
long-term viability. Therefore, incidental take of fishers that may 
occur as a result of actions implemented under such forest management 
mechanisms will not be prohibited under this section 4(d) rule.

[[Page 60304]]

    Our fourth exception is for management activities conducted for the 
purpose of identification and clean-up of toxicant-contaminated sites 
for which the Service has determined that such activities to remove 
toxicants would be consistent with conservation strategies for the West 
Coast DPS fishers. Those activities could include use of machinery that 
may cause localized, short-term disturbance to West Coast DPS fishers 
(e.g., helicopters or off-road vehicles), as well as require limited 
removal of some habitat structures valuable to West Coast DPS fishers 
(e.g., hazard trees that may be a suitable den site).
    With regard to Exception 4, we note that exposure to toxicants, 
especially anticoagulant and neurotoxicant rodenticides, is a threat to 
the fisher, and that illegal marijuana cultivation sites are the 
biggest source of these toxicants in the forested habitats used by the 
species. These types of toxicants in the environment can result in both 
lethal and sublethal effects to fishers through their ingestion of 
contaminated prey items, and also cause indirect effects to fishers as 
a result of declines in their prey base. Identification and cleanup of 
such contaminated sites is vitally important in removing this threat; 
however, site reclamation may involve machinery that can disturb 
fishers (e.g., helicopters, off-road vehicles), and hazardous material 
removal activities may eliminate some structures used by fisher. As a 
result, these cleanup activities have the potential to result in 
negative impacts to fisher individuals. However, the removal of these 
toxicants that can have long-term detrimental effects on fishers or 
their prey will reduce the potential for lethal and sublethal effects 
in fishers, and will improve the overall condition of the habitat, 
thereby contributing to the long-term viability of the species. 
Accordingly, incidental take of fishers that may occur as a result of 
toxicant cleanup activities will not be prohibited under this section 
4(d) rule.
    Therefore, as explained above, we are proposing to issue protective 
regulations under section 4(d) of the Act. The prohibitions under 
section 9(a)(1) will apply to fishers throughout the range of the West 
Coast DPS, with specific exceptions tailored to the conservation needs 
of the species. While we are providing these exceptions to the 
prohibitions and provisions of section 9(a)(1), we clarify that all 
Federal agencies (including the Service) that fund, permit, or carry 
out the activities described above will still need to ensure, in 
consultation with the Service (including intra-Service consultation 
when appropriate), that the activities are not likely to jeopardize the 
continued existence of the DPS. Private entities who undertake any 
actions other than those described in the exceptions above that may 
result in adverse effects to the West Coast DPS of fisher, when there 
is no associated Federal nexus to the action, may wish to seek an 
incidental take permit from the Service before proceeding with the 
activity. The proposed provisions of the 4(d) rule are set forth at the 
end of this document in the rule portion.
    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 for the management and protection of the 
West Coast DPS of fisher.

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 2014 Species 
Report, we sent letters noting our intent to conduct a status review 
and requested information from all tribal entities within the 
historical range of the West Coast DPS of fisher, and we provided the 
draft Species Report to those tribes for review. We also notified the 
tribes via email to ensure they were aware of the January 31, 2019, 
document in the Federal Register to reopen the comment period on the 
October 7, 2014, proposed rule to list the DPS as a threatened species. 
As we move forward in this listing process, we will continue to consult 
on a government-to-government basis with tribes as necessary.

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 
Yreka Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Pacific Southwest Regional 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

[[Page 60305]]

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; and 4201-4245; unless 
otherwise noted.
0
2. Amend part 17.11(h) by adding an entry for ``Fisher (West Coast 
DPS)'' in alphabetical order under Mammals to the List of Endangered 
and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

                                         EPA--Approved Ohio Regulations
----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
           Common name              Scientific name        Where listed          Status         and applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                  * * * * * * *
Fisher (West Coast DPS).........  Pekania pennanti...  U.S.A. (CA and OR).  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) West Coast DPS of fisher (Pekania pennanti).
    (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 West Coast DPS of fisher.
    (2) Exceptions from prohibitions. Incidental take of the West Coast 
DPS of fisher will not be considered a violation of the Act if the take 
results from any of the following activities:
    (i) Forestry management activities conducted in the range of the 
West Coast DPS of fisher for the purposes of reducing the risk or 
severity of wildfires. These activities could include forest management 
practices such as those to remove horizontal and vertical fuels, to 
remove fuels within 150 ft (45.7 m) of legally permitted structures and 
within 300 ft (91.4 m) of habitable structures, or to implement Fuel 
Break/Defensible Space Prescriptions that allow for the removal of 
trees or other vegetation to create shaded fuel breaks along roads or 
natural features or to create defensible space. All actions taken 
during a wildfire to support fire suppression activities would also be 
exempt.
    (ii) Forestry management activities conducted in the range of the 
West Coast DPS of fisher pursuant to a fisher conservation plan or 
strategy approved by the Service or the California Department of Fish 
and Wildlife.
    (iii) Forestry management activities conducted in the range of the 
West Coast DPS of fisher and with Federal or State oversight that are 
not specifically designed as fisher conservation plans or strategies, 
but are nevertheless consistent with the conservation needs of the West 
Coast DPS of fisher. Activities consistent with the conservation needs 
of fisher could include the following measures: Retention of known den 
and rest sites; retention of multi-layered, structurally diverse 
forests; retention of larger diameter trees, including those with 
damage or decay; increased vegetation diversity, including desirable 
species such as hardwoods or mast- or fruit-bearing trees; retention of 
shrubs and smaller trees in areas with sparse overstory cover; and no 
poisoning of prey species, such as mountain beavers, porcupines, 
snowshoe hares, and woodrats.
    (iv) Management activities conducted for the purpose of 
identification and clean-up of toxicant-contaminated sites for which 
the Service has determined that such activities to remove toxicants 
would be consistent with conservation strategies for the West Coast DPS 
fishers. Those activities could include use of machinery that may cause 
localized, short-term disturbance to West Coast DPS fishers (e.g., 
helicopters or off-road vehicles), as well as require limited removal 
of some habitat structures valuable to West Coast DPS fishers (e.g., 
hazard trees that may be a suitable den site).
    (v) Take as set forth at Sec.  17.31(b).
* * * * *

    Dated: October 21, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising 
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-23737 Filed 11-6-19; 8:45 am]
BILLING CODE 4333-15-P